Cite as: 535 U. S. 357 (2002)
Breyer, J., dissenting
individual's special medical needs; they thereby help to restrict the untested drug's distribution to those most likely to need it; and they thereby advance the statute's safety goals. There is no reason for this Court, as a matter of constitutional law, to reach a different conclusion.
II
I do not believe that Congress could have achieved its safety objectives in significantly less restrictive ways. Consider the several alternatives the Court suggests. First, it says that "the Government could ban the use of 'commercial scale manufacturing or testing equipment for compounding drug products.' " Ante, at 372. This alternative simply restricts compounding to drugs produced in small batches. It would neither limit the total quantity of compounded drugs produced, nor help in any way to assure the kind of individualized doctor-patient need determination that the statute's advertising restriction are designed to help achieve.
Second, the Court says that the Government "could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received." Ibid. This alternative, while addressing the issue of quantity, does virtually nothing to promote the second, need-related statutory objective.
Third, the Court says the Government "could prohibit pharmacists from '[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." Ibid. This alternative is open to the same objection.
Fourth, the Court says the Government "could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state." Ibid. This alternative, applying only to out-of-state sales, would not significantly restrict sales, either in respect to amounts or in respect to patient need.
385
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