High Court Hears First Amendement Case, Decision Might Undermine Roe

by: Bill Egnor AKA Something The Dog Said

Wed Apr 27, 2011 at 06:36:57 AM MST

The High Court heard a case yesterday which is being argued on First Amendment grounds. The case arises from the practice of so-called "Data Mining" companies collecting the prescription history of doctors and then aggregating that information and selling it to pharmaceutical companies, who then use it to target market of drugs to specific doctors.  

Now, the patients who receive these prescriptions are not known, just that that prescription was written and filled. The State of Vermont passed a law (as well as New Hampshire and a couple of other states) that prohibited this practice. They were taken to court by the data mining companies with the support of the pharmaceutical manufacturers.

Vermont created a law that requires that doctors consent to having this kind of information sold by pharmacies and data mining companies. The State admitted that part of the move to do so was an attempt to control costs. When doctors receive a barrage of marketing about name brand drugs, they are more likely to prescribe them, even if there is a generic that is just as effective. The desire to see more low cost prescriptions is the states interest in this and where they are likely to be in trouble with the High Court

Justice Ruth Bader-Ginsburg asked:

And if that's the purpose, why doesn't that run up against what this court has said - that you can't lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?"

From questions asked yesterday it looks pretty bad for Vermont and New Hampshire's attempts to limit the way marketing is done to doctors. The thing is I am more concerned about a bigger issue. Namely privacy.

Roe v Wade was decided on the premise that the Fourteenth Amendment allows a woman the right of privacy in her reproduction and that the State cannot make laws which infringe on that medical privacy.

If, as seems likely from yesterday's questions, the Supreme Court decides that there is no protection for doctors in their prescription history, we see a further whittling away of the over all idea of privacy throughout society. As that becomes less and less solid a concept, there it undermines the premise of Roe.

Conservative lawyers have always hated the Roe decision. It is based on to the text of the Constitution but an extrapolation of what the text means in a more modern context. They point out that that Constitution has no explicit protection of privacy. Personally I see the Fourth Amendments protections of papers and property from unreasonable search and seizure as just that kind of right, but they are correct that the Constitution does not say it in so many words.

Constitutional law is always more then just the words of our founding legal document. It is also the current active interpretation of those words in the form of Supreme Court decisions. Our First Amendment rights have changed radically in the last 100 years for this very reason. The same words which were found to allow the imprisonment of people leafleting to munitions workers to not support WWI are now found to protect the heinous actions of the Phelps Clan and their Westboro Baptist Church scam.

Because the law is a tapestry, woven together in such a way that every string puts tension on every other string and not a Chinese buffet where you can pick and choose what you like and leave the rest, a decision in a case like this one can reverberate through the whole legal structure.

Now I am not a wide eyed conspiracy theorist, so I don't see a huge nebulous and nefarious plan by the pharmaceutical manufactures to end a woman's right to control her reproduction by protecting marketing practices. However the groups that want to control women and their reproduction have plenty of demented little lawyers who will use whatever they can to let the state seize control of the uteri of every citizen that has one.

In the end it does come back to the need to limit the personhood of corporations. By having free speech rights they are actually giving the people who lead the company two voices in public debate, their own and then the one from the supposed person that many people make up.

Let's just hope that this foolish flirtation with giving citizens rights to entities that can't vote and can't be sent to jail does not lead to a further erosion of women's rights. I hope that with all my heart, but I don't have a lot of faith in that hope.

The floor is yours.