Is a prescription a private letter that a doctor writes to a pharmacist about a third party, the patient, similar to a private letter that a man writes to his cousin where he discusses his father? The legislature of the state of Vermont, after lobbying by a doctors’ union called the Vermont Medical Society, enacted a “Prescription Confidentiality Law” prohibiting pharmacists from disclosing, without consent, the drugs individual doctors prescribe for their patients because they believe it is an unwarranted breach of trust similar to confidential business information like trade secrets.
Drug peddlers use information provided by pharmacists to precisely target doctors to sell drugs. Doctors writing few prescriptions are ignored while doctors writing many prescriptions receive lavish attention. If a drug company learns from pharmacists that a doctor prefers the drugs of his competitor, a salesman will ask him why. Some doctors refuse to talk to salesmen believe they resent them while other doctors appreciate the information the peddlers offer.
The peddlers and “data miners” that gather information from pharmacies to assist peddlers sued Vermont in the Supreme Court, winning a 6-3 vote joined by 5 Republicans and a Democrat and opposed by a dissent of 3 Democrats, nullifying the law as unconstitutional because it denies pharmacies the right to say and publish as they please. It was to the court as if Vermont prohibited the Wall Street Journal from publishing stock prices. Specifically, they stated that the “Prescription Confidentiality Law”:
imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. While the burdened speech results from an economic motive, so too does a great deal of vital expression…. An individual’s right to speak is implicated when information he or she possesses is subjected to “restraints on the way in which the information might be used” or disseminated.
While it is easy to understand Republican frustration with Democrats using government force to censor people, they wore partisan blinders to wrongly decide this case, ignoring 350 years of precedents protecting property rights. For example, the British courts ruled in 1741 that the receiver of a letter cannot publish a private letter because it is the property of the sender. The letters were written by the famous author Alexander Pope to another famous author, Jonathan Swift, and published by a bookseller name Curl. The British legislature didn’t even enact a law protecting the author, the court ruling that the sender of the letters owned the copyright merely by producing the letters.
It may seem like an old ruling in another country is irrelevant but the court in Massachusetts relied on it as precedent in a 1912 case of the private letters of a famous woman, Mary Baker Eddy, founder of the Christian Science religion and the Christian Science Monitor, to her cousin about household matters, health, and work.
The right of the author to publish or suppress publication of his correspondence is absolute in the absence of special considerations, and is independent of any desire or intent at the time of writing. It is an interest in the intangible and impalpable thought and the particular verbal garments in which it has been clothed. Although independent of the manuscript, this right involves a right to copy or secure copies. Otherwise, the author’s right of publication might be lost. The author parts with the physical and material elements which are conveyed by and in the envelope. These are given to the receiver. The paper upon which the letter is written belongs to the receiver. A duty of preservation would impose an unreasonable burden in most instances. It is obvious that no such obligation rests upon the receiver, and he may destroy or keep at pleasure. Commonly there must be inferred a right of reading or showing to a more or less limited circle of friends and relatives. But in other instances the very nature of the correspondence may be such as to set the seal of secrecy upon its contents. Letters of extreme affection and other fiduciary communications may come within this class. There may be also a confidential relation existing between the parties, out of which would arise an implied prohibition against any use of the letters, and a breach of such trust might be restrained in equity.
The case was brought by the executor of the will of Mary Baker Eddy in 1912 after she died in 1910 to prevent an auctioneer from selling copies of the letters. The court ruled in favor of the executor. Why does the property of a dead woman in 1912 get more protection than the property of alive and kicking doctors in the 21st century? Are we regressing to a socialist state where most property is disparaged?
Private letters are not the only property that enjoyed government protection for hundreds of years. For example, Dorothy McCreery, hired a photographer to take her picture and successfully petitioned a Colorado court in 1936 to restrain a grocery store chain from using the picture against her wishes and without her consent as advertising in their stores. She claimed that the effect was to:
injure plaintiff’s feelings and embarrass and distress said plaintiff and did hold plaintiff up to the ridicule and scorn of her friends and acquaintances, all of which has caused plaintiff great humiliation, distress, mental anguish and damage and has caused plaintiff to be highly nervous and distressed, thereby seriously and irreparably injuring plaintiff’s health and well-being and has prevented plaintiff from attending to her regular duties and carrying on her usual work.
Can a doctor carry on his usual work, including writing drug prescriptions, when he knows that drug companies are spying on him and the legislature can’t protect him because the Supreme Court says that pharmacies can publish anything they please? Can you blame doctors who refuse to associate with drug sellers who know his intimate secrets?