When the Supreme Court disappoints you…

… don’t assume the battle is over. Just ask any Chicago Cubs fan – there’s always next season. This is one lesson in my Perspective in today’s NEJM on the Vermont data mining case, Sorrell v. IMS Health. Vermont tried to protect the confidentiality of prescriber-identifiable prescription data, but the Court invalidated the statute as contrary to the First Amendment. (See also the article by Michelle Mello and Noah Messing in the same issue). UPDATE: interview at CommonHealth

You see two types of legal change in Sorrell:  “constitutional drift” as the tectonic plates of law and politics grind on; and the potential for statutory changes to obtain a totally different result. Vermont – or any other state interested in prescription privacy – can pass a state law amendment to HIPAA. At least 7 current Justices would uphold HIPAA from a First Amendment challenge. Vermont’s transition to single payer also gives it an unique opportunity to embed privacy rules in provider contracts.

More troubling is the mischief this decision lays in store for other public health regulations:

Outside the pharmaceutical realm, this decision also bodes ill for marketing regulation of food, tobacco, alcohol, and other products with important public health effects. Kennedy’s opinion notes that “the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.” One could surmise from this position that cigarette manufacturers might have a First Amendment right to broadcast TV advertisements or target young prospective smokers with cartoons. By contrast, regulations requiring additional speech — such as menu and food-labeling laws — might better survive First Amendment review.

When the Supreme Court disappoints you, remember that not everything heard by the Court is a constitutional issue. Sometimes the dispute is over how to interpret a federal statute (see over two dozen SCOTUS cases on ERISA; or myriad tax or patent cases). Other times, the dispute is an alleged conflict between state and federal law (pre-emption). If the state law clearly conflicts with federal law, federal law wins, but clear cases rarely make it to the Court. More common are state laws that indirectly conflict with some federal rule, as we saw in the recent drug and device pre-emption cases (Medtronic v. Riegel; Wyeth; Pliva). These decisions can be overturned by an Act of Congress – just change the federal statute.

Even on constitutional issues, the Court often changes positions, especially over time or when the vote is close. Many recent decisions have been 5-4, and would be ripe for adjustment after new appointments. In 1986, five members of the Court found no constitutional problem with a Georgia statute that outlawed sodomy (Bowers v. Hardwick).  A mere 17 years later, in Lawrence v. Texas, the Court ruled 6-3 that:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

While the different result can be attributed to some new appointments, it is also notable that Justice O’Connor switched sides. Examples abound. In 1942, an unanimous Court said that while the First Amendment protected political protest, “the Constitution imposes no such restraint on government as respects purely commercial advertising.” (Valentine v. Chrestensen)  Three decades later, the Court formalized protection for “commercial speech,” and in recent years this idea has been used to invalidate corporate campaign finance laws (Citizens United) and physician confidentiality laws restricting use of prescriber-identifiable data (Sorrell v. IMS Health).

The take-away lesson here? It matters a great deal, over time, who gets appointed to the Supreme Court and how legal theories change through the years.

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