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Privacy / Public Health Reporting and Testing

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Registering medical marijuana users does not violate privacy rights - Rollins v. Ulmer, 15 P.3d 749 (Alaska 2001)

In 1998 Alaska voters approved a "medical marijuana" initiative. Sponsored by Alaskans for Medical Rights, the initiative passed as Ballot Measure 8 and was codified as AS 17.37.010. The law allows Alaskans with debilitating conditions to use marijuana for medical purposes upon a physician's certification that the use might be beneficial. To ensure compliance with its provisions, the law requires medical marijuana users to register with the Department of Health and Social Services; the department then issues identification cards and maintains a registry of authorized users.

Shortly after Alaskans for Medical Rights submitted Ballot Measure 8 to the Division of Elections, plaintiff Charles Rollins filed a complaint in superior court raising procedural claims to bar the division from certifying the measure and asserting that the initiative violated constitutional privacy and equal protection rights. Rollins later amended his complaint to challenge the initiative based on constitutional violations of article XI, sections 1 and 7, which concern procedures for and restrictions on the initiative and referendum process. Alaskans for Medical Rights intervened in support of the measure.  After the election, Rollins withdrew his procedural claims, opting to pursue only his complaint that the measure violated his privacy rights. The state, joined by Alaskans for Medical Rights, moved for summary judgment. Rollins filed a cross-motion for partial summary judgment. The superior court granted summary judgment to the state, declaring the medical marijuana law constitutional. Rollins appeals.

The Alaska Supreme Court looked to Whalen v. Roe, 429 U.S. 589 (1977), as establishing the U.S. Constitutional standards for the exercise of the police power to require public health reporting.  Whalen addressed the constitutionality of a statute requiring New York physicians to submit to the state health department the names and addresses of all persons receiving prescriptions for certain "Schedule II" drugs -- including opium, cocaine, methadone, amphetamines, and methaqualone -- for which there are both lawful and unlawful markets. The physicians and patients challenging the statute argued that it violated constitutionally protected privacy rights by requiring disclosure of personal matters and by interfering with individual freedom to make important treatment decisions.  They argued that disclosure of information about the prescription and use of drugs like cocaine and opium might make some patients "reluctant to use, and some doctors reluctant to prescribe, such drugs even where their use is medically indicated."

Rejecting this risk as insufficient to establish a constitutional violation, the Court in Whalen emphasized that the New York statute made information collected by the health department confidential and prohibited from public disclosure. Noting that involuntary public disclosure could occur only if health department employees violated the law by failing to maintain proper security or if a patient or doctor were formally accused in a judicial proceeding, the Court concluded that neither outcome invalidated the statute.  The Court found no evidence to support the physicians' and patients' fears that department employees might violate the statute's confidentiality provisions; moreover, in the Court's view, "the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program."

Finding that the Alaska constitution did not provide greater protections than the US Constitution, the court next addressed the plaintiff's claims that even though the state records are not public records, he cannot be sure that their security will not be compromised.  Since this is the same argument that is made by civil libertarian groups who oppose the reporting of communicable diseases such as HIV, the court's finding have broader significance than the medical marijuana issue:

"While the confidential registry might deter some skeptical patients from pursuing medical marijuana treatment, this incidental deterrence, standing alone, cannot establish a constitutional violation. If our constitution permitted only a perfect system of regulating medical marijuana -- one that would overcome the fears of all potential medical marijuana users -- then, as a practical matter, no regulation would ever be possible. As the Court recognized in Whalen, there are a host of . . . unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy."

Thus the court concluded that the requiring medical marijuana users to register with the state, when that registry information was not available to the public, did not impermissibly infringe on plaintiff's constitutional rights.

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