IMS Health Inc. operates in the shadows of the healthcare industry, gathering data that drug makers can use to sell medications more effectively. The data, however, are taken from the prescriptions that doctors write for their patients. That information is at the heart of a dispute over how far states can go to protect privacy — a dispute that has reached the Supreme Court, and one that could broaden the reach of the 1st Amendment in troubling ways.
IMS and a handful of market research competitors pay pharmacists for the details contained in prescriptions, including the name of the doctor […], the drug prescribed and the dosage. They compile that information into databases that track individual doctors’ prescribing habits, replacing patients’ names with “de-identified” numbers. Such databases can be valuable to the public, potentially helping to enforce drug laws, find patterns in the spread of disease and spot variations in how medications are used. But the main use — and the one that pays for the databases — is to help pharmaceutical companies persuade physicians to prescribe more of their products. […]
Some doctors object to the disclosure of such arguably private information to drug company sales forces. And some consumer advocates argue persuasively that the marketing inevitably leads physicians to prescribe drugs too frequently, and to prescribe the newer and more expensive drugs that pharmaceutical companies hawk most aggressively. […]
In light of these concerns, Maine, New Hampshire and Vermont each adopted laws restricting the release of information on individual physicians’ prescriptions. IMS, other market researchers and drug manufacturers challenged those laws in federal court, claiming that their 1st Amendment rights were violated. […]
Drug makers should be able to market their products, but their 1st Amendment rights shouldn’t guarantee them access to sensitive data that wouldn’t exist but for the government’s requirement that doctors and patients disclose it. Many of the public health and safety benefits cited by defenders of prescription data mining can be obtained without revealing prescribers’ names to drug company sales reps. If states want to give doctors and their patients more protection against marketers gaining access to that information, they should be able to do so.