dissenting. The majority opinion is based upon a belief that a rational basis exists for this legislation, i.e. the prevention of drug diversion. This basis was completely disproved at the trial level. The fact that the Congress, or one of its agencies, found some drug diversion occurring in other parts of the country is no rational basis for finding it will occur in Arkansas.
Not only was there evidence that no diversion has occurred in Arkansas, there was evidence that no such diversion was likely to occur. The majority opinion speculates that the General Assembly may have been aware of the “diversion” market and decided to prevent it from happening in Arkansas.
The Baptist Medical Systems presented testimony that they operated an in-house drug distribution system as well as a “for profit” pharmacy in one of the buildings. As I understand the legislation, this “for profit” pharmacy is “grandfathered” in and will be allowed to continue business. On the other hand, St. Vincent’s Infirmary, a well known medical institution in this area, will be unable to establish a drug store on its campus. At the same time, the Doctors Hospital, a “for profit” hospital, will be allowed to continue operating its drug store for profit, as will any other private hospital.The only motivation behind this lawsuit is profit. The pharamacists want to make the profit that the “not for profit” institutions are making on their “for profit” pharmacies. The legislation gives one class of persons priority or preferential treatment over others and the inevitable result is to increase the price of drugs to the consumer. This law is, in my opinion, in violation of the Due Process and Equal Protection clauses of the Constitution. This piece of special legislation, which is also prohibited by the Arkansas Constitution, should be declared void.