IMS Health of Norwalk and SDI, a Pennsylvania-based health data company, filed a joint petition asking the U.S. Supreme Court to review the files in the case of IMS Health vs. Ayotte. The companies are looking to overturn a U.S. Court of Appeals First Circuit ruling in that case that upheld a New Hampshire law restricting the commercial use of prescriber-identifiable data.
“The Court of Appeals violated basic constitutional principles when it allowed the government to adopt barriers to truthful discussions about important medical questions,” said Robert H. Steinfeld, IMS senior vice president and general counsel.
The decision reversed a U.S. District Court decision that had previously ruled that such restrictions were in violation of the First Amendment”™s protection of commercial speech. The appellate court, instead, found the First Amendment afforded no such protection to the gathering, analysis or publication of data for commercial purposes, and that restriction of such data ”“ which comes mostly from doctors ”“ was not an abridgment of free speech.
“This decision jeopardizes both speech and commerce, including market research, data collection and dissemination, financial analysis, consumer studies, credit verification, and important publishing activities,” said Steinfeld. “Recognizing that the Court of Appeals”™ decision is in conflict with rulings of other courts, we are hopeful that the justices will bring much needed clarity to these important issues.”
According to Steinfeld, the petition that IMS and SDI are now filing explains that the Court of Appeals”™ decision represents a threat to the most basic constitutional right of free speech. He said the legal principles established by the Court of Appeals create a serious barrier to transfers of information, the core of the nation”™s emerging knowledge-based economy. SDI is based in Plymouth Meeting, Pa.
“Our constitutional principles recognize that commerce and speech are inextricably linked, said Rodney Smolla, Dean of the Washington and Lee University Law School and a First Amendment scholar. “The sale of data in this case should have been entitled to the full measure of constitutional protection that shelters the distribution of truthful information. These companies service the free flow of information by gathering and synthesizing data and then selling that data to those who find it valuable. Vast arenas of our economy and culture are built around such sales. We should not choke off these useful enterprises.”
The petition was submitted to the U.S. Supreme Court last week. The Court is expected to decide whether to take the case before its summer recess.
In addition to New Hampshire, two other states, Maine and Vermont, have passed similar laws that restrict the use of prescriber-identifiable data. The U.S. District Court in Maine has enjoined the enforcement of the Maine data restriction law holding that it was unconstitutional. In Vermont, a lawsuit challenging that state”™s data restriction law was heard in U.S. District Court in Brattleboro for three days last July and August. A decision is pending.
