Experts from the legal and medical fields gathered on campus this past weekend to discuss the constitutionality of the Food and Drug Administration.
On Friday and Saturday, the Yale Law School, in collaboration with the School of Medicine and the School of Public Health, hosted a conference entitled “Public Health in the Shadow of the First Amendment.” The event, according to the conference organizers, brought together legal and public health experts to discuss the intersection of their fields, and focused on the difficulties that arise when health concerns conflict with First Amendment principles. Through a series of panels and keynote addresses, experts ranging from a state secretary of health and mental hygiene to a Ninth Circuit Judge to a distinguished constitutional scholar, focused on a consistent theme — for the past 60 years, legal decisions concerning public health may have violated the First Amendment.
“[Reconciling these concerns] will have a very significant effect on the future of healthcare in this country,” YLS Dean Robert Post said.
According to panelists, many of the restrictions placed on the drug industry may be a direct violation of the First Amendment. Dean of the Yale School of Medicine Robert Alpern illustrated the issue by speaking about the Ebola scare in New Haven, in which a Yale graduate student was admitted to Yale-New Haven Hospital with Ebola-like symptoms. In that instance, HIPAA — a law that protects the privacy of medical patients — prevented medical personnel from disclosing the names of the affected students, as well as identifying details. It was an incident that directly implicated free speech issues, he said.
“This is a very serious issue — not just playing around with the words of the Constitution,” Alpern said.
The panels conducted during the conference included discussions of FDA regulation, health behaviors in children, professional conduct and the intersection between democratic values and scientific inquiry.
In a panel focused on the competing aims of the First Amendment and drug regulations, Yale law professor and Global Health Justice Partnership Director Amy Kapczynski said there are questions about whether the two inherently contradict or complement each other. Protections afforded to consumers against misleading advertisements, though a boon for the field of public health, may actually be unconstitutional, those on the panel said.
Informed consent laws — which require doctors who perform abortions to convey to their patients specific information about the fetus that is often geared toward discouraging pregnancy terminations — could very well be hindering doctors’ freedom of speech, said Joshua Sharfstein, Secretary of Health and Mental Hygiene for the state of Maryland.
“Effective medical care requires a special kind of trust between doctor and patient,” Sharfstein said. “Unfortunately, recent decisions are undermining this trust.”
The conference also focused on the extent to which scientific research, as currently conducted, is democratic. When scientists conduct studies, they are either sponsored by the federal government or private institutions. In the case of the latter, scientists are required to sign stringent non-disclosure agreements, preventing them from reporting findings like adverse side effects and particular demographics who respond negatively to the drug. Though non-disclosure agreements are also used in federally-funded studies, commercial agreements are much stricter. According to panelists, they can be so strict that they may actually violate the First Amendment.
Wendy Wagner FES ’84 LAW ’87, an environmental policy-making scholar, said that although it is hard to quantify how pervasive commercial suppression of scientific results is. Some findings, she said, are delayed or not reported at all because of legal barriers to free speech.
“Some scholars have avoided entering certain controversial fields of inquiry altogether,” she said.
Panelists consistently emphasized the conference’s unique perspective. It is rare that legal, medical and public health experts gather in the same room to talk about their fields, they said.
As a result, it did not previously occur to experts in these fields that these problems existed, they added.
“The origins of this conference would have been inconceivable 30 years ago,” Post said.
The conference was sponsored by the Information Society Project, the Yale Global Health Justice Partnership and the Yale Health Law and Policy Society.