Health Care Costs and Constitutional Libety in Sorrell v. IMS Health

April 26th, 2011

During arguments in Sorrell v. IMS Health (Instant analysis here), Chief Justice Roberts and Justice Kennedy strongly questioned Vermont’s state goal of reducing health care costs (by promoting the sale of generic drugs) as a reason to restrict free speech (a constitutional right).

Justice Ginsburg asks about health care, and stifling the voice of drug producers to help out generic drug producers. CJ Roberts seems quite upset by this argument.

JUSTICE GINSBURG: There’s another -there’s another purpose that I would like you to comment on, and that is the, the State is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand name drugs. And if that’s the purpose, why doesn’t that run up against what this Court has said that you can’t, you can’t lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?

MS. ASAY: The State does have an interest in reducing health care costs here. What’s important about this statute is the mechanism by which it allows doctors to decide what information and what kind of marketing they want, and it’s different because what it’s about is access to information in this highly regulated area. It’s the difference between a doctor who prescribes a nonprescription drug and a patient who can take that information, walk into the pharmacy with a $20 bill and leave with their medication, and no one has learned anything about what the doctor prescribed for the patient, about the patient’s concerns, or the doctor’s concerns.

CHIEF JUSTICE ROBERTS: You want to lower – you want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors, by, to use a pejorative word, but by censoring what they can hear to make sure they don’t have full information, so they will do what you want them to do when it comes to prescribing drugs, because you can’t take, I gather, direct action and tell them, you must prescribe generics, right?

Abrogating a constitutional right in order to lower health care costs? The Chief does not seem to accept this line of reasoning. Hrmm… I wonder how this logic would apply to a different case that involves limiting free-rider problems to lower costs by mandating action.

This discussion continues:

MS. ASAY: I disagree, Your Honor, for -for two reasons. The statute does not limit any of the information that doctors receive. So the State has not in any way intervened in the information that the pharmaceutical manufacturers can provide to the doctors. They are free -CHIEF
JUSTICE ROBERTS: You’re restricting their — you’re — you’re making it far more burdensome for the manufacturers to reach their intended audience, right? It’s as if I want — there’s a demonstration in town, all right? They need a permit to hold the demonstration. They get the permit. I want to hold a counter-demonstration, and you’re saying it doesn’t make any difference whether I know where their demonstration is going to be or not?
MS. ASAY: I disagree, Your Honor. The -the
ability of drug companies to locate the doctors that are interested in their products is — is not something that calls for this data. It’s very –

Next Justice Kennedy gets in the mix, and asks about limiting a constitutional right (free speech) to lower prices.

JUSTICE KENNEDY: Well, I think maybe you’re being — you were the one that made the argument that the State has an interest in reducing health care costs. I assume that is by selling generics. And the Chief Justice asked you a question: In effect, aren’t you doing this by regulating speech? And you say no, you disagree. I don’t understand that answer that you gave to the Chief Justice.
MS. ASAY: It’s not a restriction on speech because it’s a restriction only on the access to the information that the pharmaceutical manufacturers would like to use to inform their advertising, and it’s only in play if the doctors have objected to the use.

During the argument time for Respondents, Goldstein also noted that a purpose of this law was to keep costs down by ensuring that generic drugs were prescribed:

I want to start with subsection A because the State helpfully reiterates its goals here. The second half of this paragraph: “The State sought to ensure costs are contained in the private health care sector, as well as for State purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers received unbiased information.” That’s what they’re trying to do. They’re trying to say: We would like the drug companies to have a harder time finding the doctors while the insurance companies and the State have an easy time finding the doctors.

Reading the tea leaves is always fun.