|||SUPREME COURT OF THE UNITED STATES
429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64
|||February 22, 1977
|||WHALEN, COMMISSIONER OF HEALTH OF NEW YORK
ROE ET AL.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK
|||A. Seth Greenwald, Assistant Attorney General of New York, argued the
cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney
General, and Samuel A. Hirshowitz, First Assistant Attorney General.
|||Michael Lesch argued the cause for appellees Roe et al. With him on the
brief was Solomon Z. Ferziger. H. Miles Jaffe argued the cause for appellees
Patient et al. With him on the brief were Melvin L. Wulf and John H. F.
|||Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist,
|||The opinion of the court was delivered by: Stevens
|||Responding to a concern that drugs were being diverted into unlawful channels,
the New York Legislature in 1972 enacted a statutory scheme to correct defects
in the previous law. The 1972 statute classifies potentially harmful drugs
and provides that prescriptions for the category embracing the most dangerous
legitimate drugs (Schedule II) be prepared on an official form. One copy
of the form, which requires identification of the prescribing physician,
dispensing pharmacy, drug and dosage, and the patient's name, address, and
age, must be filed with the State Health Department, where pertinent data
are recorded on tapes for computer processing. All forms are retained for
a five-year period under a system to safeguard their security, and are thereafter
destroyed. Public disclosure of the patient's identity is prohibited, and
access to the files is confined to a limited number of health department
and investigatory personnel. Appellees, including a group of patients regularly
receiving Schedule II drugs and prescribing doctors, brought this action
challenging the constitutionality of the Schedule II patient-identification
requirements. Holding that "the doctor-patient relationship is one of the
zones of privacy accorded constitutional protection" and that the Act's
patient-identification provisions invaded that zone with "a needlessly broad
sweep," since appellant had been unable to demonstrate the need for those
requirements, a three-Judge District Court enjoined the enforcement of the
challenged provisions. Held:
|||1. The patient-identification requirement is a reasonable exercise of
the State's broad police powers, and the District Court's finding that the
necessity for the requirement had not been proved is not a sufficient reason
for holding the statute unconstitutional. Pp. 596-598.
|||2. Neither the immediate nor the threatened impact of the patient-identification
requirement on either the reputation or the independence of patients for
whom Schedule II drugs are medically indicated suffices to constitute an
invasion of any right or liberty protected by the Fourteenth Amendment.
|||(a) The possibility that a doctor or pharmacist may voluntarily reveal
information on a prescription form, which existed under prior law, is unrelated
to the computerized data bank. Pp. 600-601.
|||(b) There is no support in the record or in the experience of the two
States that the New York program emulates for assuming that the statute's
security provisions will be improperly administered. P. 601.
|||(c) The remote possibility that judicial supervision of the evidentiary
use of particular items of stored information will not provide adequate
protection against unwarranted disclosure is not a sufficient reason for
invalidating the entire patient-identification program. Pp. 601-602.
|||(d) Though it is argued that concern about disclosure may induce patients
to refuse needed medication, the 1972 statute does not deprive the public
of access to Schedule II drugs, as is clear from the fact that about 100,000
prescriptions for such drugs were filed each month before the District Court's
injunction was entered. Pp. 602-603.
|||3. Appellee doctors' contention that the 1972 statute impairs their right
to practice medicine free from unwarranted state interference is without
merit, whether it refers to the statute's impact on their own procedures,
which is no different from the impact of the prior statute, or refers to
the patients' concern about disclosure that the Court has rejected (see
2(d), (supra) ). P. 604.
|||403 F. Supp. 931, reversed.
|||STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J.,
post, p. 606, and STEWART, J., post, p. 607, filed Concurring opinions.
|||MR. JUSTICE STEVENS delivered the opinion of the Court.
|||The constitutional question presented is whether the State of New York
may record, in a centralized computer file, the names and addresses of all
persons who have obtained, pursuant to a doctor's prescription, certain
drugs for which there is both a lawful and an unlawful market.
|||The District Court enjoined enforcement of the portions of the New York
State Controlled Substances Act of 1972 *fn1
which require such recording on the ground that they violate appellees'
constitutionally protected rights of privacy. *fn2
We noted probable jurisdiction of the appeal by the Commissioner of Health,
424 U.S. 907, and now reverse. *fn3
|||Many drugs have both legitimate and illegitimate uses. In response to
a concern that such drugs were being diverted into unlawful channels, in
1970 the New York Legislature created a special commission to evaluate the
State's drug control laws. *fn4
The commission found the existing laws deficient in several respects. There
was no effective way to prevent the use of stolen or revised prescriptions,
to prevent unscrupulous pharmacists from repeatedly refilling prescriptions,
to prevent users from obtaining prescriptions from more than one doctor,
or to prevent doctors from overprescribing, either by authorizing an excessive
amount in one prescription or by giving one patient multiple prescriptions.
*fn5 In drafting new legislation
to correct such defects, the commission consulted with enforcement officials
in California and Illinois where central reporting systems were being used
|||The new New York statute classified potentially harmful drugs in five
schedules. *fn7 Drugs, such as
heroin, which are highly abused and have no recognized medical use, are
in Schedule I; they cannot be prescribed. Schedules II through V include
drugs which have a progressively lower potential for abuse but also have
a recognized medical use. Our concern is limited to Schedule II, which includes
the most dangerous of the legitimate drugs. *fn8
|||With an exception for emergencies, the Act requires that all prescriptions
for Schedule II drugs be prepared by the physician in triplicate on an official
form. *fn9 The completed form identifies
the prescribing physician; the dispensing pharmacy; the drug and dosage;
and the name, address, and age of the patient. One copy of the form is retained
by the physician, the second by the pharmacist, and the third is forwarded
to the New York State Department of Health in Albany. A prescription made
on an official form may not exceed a 30-day supply, and may not be refilled.
|||The District Court found that about 100,000 Schedule II prescription forms
are delivered to a receiving room at the Department of Health in Albany
each month. They are sorted, coded, and logged and then taken to another
room where the data on the forms is recorded on magnetic tapes for processing
by a computer. Thereafter, the forms are returned to the receiving room
to be retained in a vault for a five-year period and then destroyed as required
by the statute. *fn11 The receiving
room is surrounded by a locked wire fence and protected by an alarm system.
The computer tapes containing the prescription data are kept in a locked
cabinet. When the tapes are used, the computer is run "off-line," which
means that no terminal outside of the computer room can read or record any
information. Public disclosure of the identity of patients is expressly
prohibited by the statute and by a Department of Health regulation. *fn12
Willful violation of these prohibitions is a crime punishable by up to one
year in prison and a $2,000 fine. *fn13
At the time of trial there were 17 Department of Health employees with access
to the files; in addition, there were 24 investigators with authority to
investigate cases of overdispensing which might be identified by the computer.
Twenty months after the effective date of the Act, the computerized data
had only been used in two investigations involving alleged overuse by specific
|||A few days before the Act became effective, this litigation was commenced
by a group of patients regularly receiving prescriptions for Schedule II
drugs, by doctors who prescribe such drugs, and by two associations of physicians.
*fn14 After various preliminary
proceedings, *fn15 a three-Judge
District Court conducted a one-day trial. Appellees offered evidence tending
to prove that persons in need of treatment with Schedule II drugs will from
time to time decline such treatment because of their fear that the missuse
of the computerized data will cause them to be stigmatized as "drug addicts."
|||The District Court held that "the doctor-patient relationship is one of
the zones of privacy accorded constitutional protection" and that the patient-identification
provisions of the Act invaded this zone with "a needlessly broad sweep,"
and enjoined enforcement of the provisions of the Act which deal with the
reporting of patients' names and addresses. *fn17
|||The District Court found that the State had been unable to demonstrate
the necessity for the patient-identification requirement on the basis of
its experience during the first 20 months of administration of the new statute.
There was a time when that alone would have provided a basis for invalidating
the statute. Lochner v. New York, 198 U.S. 45, involved legislation making
it a crime for a baker to permit his employees to work more than 60 hours
in a week. In an opinion no longer regarded as authoritative, the Court
held the statute unconstitutional as "an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal liberty...."
Id., at 56.
|||The holding in Lochner has been implicitly rejected many times. *fn18
State legislation which has some effect on individual liberty or privacy
may not be held unconstitutional simply because a court finds it unnecessary,
in whole or in part. *fn19 For
we have frequently recognized that individual States have broad latitude
in experimenting with possible solutions to problems of vital local concern.
|||The New York statute challenged in this case represents a considered attempt
to deal with such a problem. It is manifestly the product of an orderly
and rational legislative decision. It was recommended by a specially appointed
commission which held extensive hearings on the proposed legislation, and
drew on experience with similar programs in other States. There surely was
nothing unreasonable in the assumption that the patient-identification requirement
might aid in the enforcement of laws designed to minimize the misuse of
dangerous drugs. For the requirement could reasonably be expected to have
a deterrent effect on potential violators *fn21
as well as to aid in the detection or investigation of specific instances
of apparent abuse. At the very least, it would seem clear that the State's
vital interest in controlling the distribution of dangerous drugs would
support a decision to experiment with new techniques for control. *fn22
For if an experiment fails - if in this case experience teaches that the
patient-identification requirement results in the foolish expenditure of
funds to acquire a mountain of useless information - the legislative process
remains available to terminate the unwise experiment. It follows that the
legislature's enactment of the patient-identification requirement was a
reasonable exercise of New York's broad police powers. The District Court's
finding that the necessity for the requirement had not been proved is not,
therefore, a sufficient reason for holding the statutory requirement unconstitutional.
|||Appellees contend that the statute invades a constitutionally protected
"zone of privacy." *fn23 The
cases sometimes characterized as protecting "privacy" have in fact involved
at least two different kinds of interests. *fn24
One is the individual interest in avoiding disclosure of personal matters,
*fn25 and another is the interest
in independence in making certain kinds of important decisions. *fn26
Appellees argue that both of these interests are impaired by this statute.
The mere existence in readily available form of the information about patients'
use of Schedule II drugs creates a genuine concern that the information
will become publicly known and that it will adversely affect their reputations.
This concern makes some patients reluctant to use, and some doctors reluctant
to prescribe, such drugs even when their use is medically indicated. It
follows, they argue, that the making of decisions about matters vital to
the care of their health is inevitably affected by the statute. Thus, the
statute threatens to impair both their interest in the nondisclosure of
private information and also their interest in making important decisions
|||We are persuaded, however, that the New York program does not, on its
face, pose a sufficiently grievous threat to either interest to establish
a constitutional violation.
|||Public disclosure of patient information can come about in three ways.
Health Department employees may violate the statute by failing, either deliberately
or negligently, to maintain proper security. A patient or a doctor may be
accused of a violation and the stored data may be offered in evidence in
a judicial proceeding. Or, thirdly, a doctor, a pharmacist, or the patient
may voluntarily reveal information on a prescription form.
|||The third possibility existed under the prior law and is entirely unrelated
to the existence of the computerized data bank. Neither of the other two
possibilities provides a proper ground for attacking the statute as invalid
on its face. There is no support in the record, or in the experience of
the two States that New York has emulated, for an assumption that the security
provisions of the statute will be administered improperly. *fn27
And 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. *fn28
|||Even without public disclosure, it is, of course, true that private information
must be disclosed to the authorized employees of the New York Department
of Health. Such disclosures, however, are not significantly different from
those that were required under the prior law. Nor are they meaningfully
distinguishable from a host of other 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.
*fn29 Requiring such disclosures
to representatives of the State having responsibility for the health of
the community, does not automatically amount to an impermissible invasion
|||Appellees also argue, however, that even if unwarranted disclosures do
not actually occur, the knowledge that the information is readily available
in a computerized file creates a genuine concern that causes some persons
to decline needed medication. The record supports the Conclusion that some
use of Schedule II drugs has been discouraged by that concern; it also is
clear, however, that about 100,000 prescriptions for such drugs were being
filled each month prior to the entry of the District Court's injunction.
Clearly, therefore, the statute did not deprive the public of access to
|||Nor can it be said that any individual has been deprived of the right
to decide independently, with the advice of his physician, to acquire and
to use needed medication. Although the State no doubt could prohibit entirely
the use of particular Schedule II drugs, *fn30
it has not done so. This case is therefore unlike those in which the Court
held that a total prohibition of certain conduct was an impermissible deprivation
of liberty. Nor does the State require access to these drugs to be conditioned
on the consent of any state official or other third party. *fn31
Within dosage limits which appellees do not challenge, the decision to prescribe,
or to use, is left entirely to the physician and the patient.
|||We hold that neither the immediate nor the threatened impact of the patient-identification
requirements in the New York State Controlled Substances Act of 1972 on
either the reputation or the independence of patients for whom Schedule
II drugs are medically indicated is sufficient to constitute an invasion
of any right or liberty protected by the Fourteenth Amendment. *fn32
|||The appellee doctors argue separately that the statute impairs their right
to practice medicine free of unwarranted state interference. If the doctors'
claim has any reference to the impact of the 1972 statute on their own procedures,
it is clearly frivolous. For even the prior statute required the doctor
to prepare a written prescription identifying the name and address of the
patient and the dosage of the prescribed drug. To the extent that their
claim has reference to the possibility that the patients' concern about
disclosure may induce them to refuse needed medication, the doctors' claim
is derivative from, and therefore no stronger than, the patients'. *fn33
Our rejection of their claim therefore disposes of the doctors' as well.
|||A final word about issues we have not decided. We are not unaware of the
threat to privacy implicit in the accumulation of vast amounts of personal
information in computerized data banks or other massive government files.
*fn34 The collection of taxes,
the distribution of welfare and social security benefits, the supervision
of public health, the direction of our Armed Forces, and the enforcement
of the s all require the orderly preservation of great quantities of information,
much of which is personal in character and potentially embarrassing or harmful
if disclosed. The right to collect and use such data for public purposes
is typically accompanied by a concomitant statutory or regulatory duty to
avoid unwarranted disclosures. Recognizing that in some circumstances that
duty arguably has its roots in the Constitution, nevertheless New York's
statutory scheme, and its implementing administrative procedures, evidence
a proper concern with, and protection of, the individual's interest in privacy.
We therefore need not, and do not, decide any question which might be presented
by the unwarranted disclosure of accumulated private data - whether intentional
or unintentional - or by a system that did not contain comparable security
provisions. We simply hold that this record does not establish an invasion
of any right or liberty protected by the Fourteenth Amendment.
|||JUSTICE BRENNAN, Concurring.
|||I write only to express my understanding of the opinion of the Court,
which I join.
|||The New York statute under attack requires doctors to disclose to the
State information about prescriptions for certain drugs with a high potential
for abuse, and provides for the storage of that information in a central
computer file. The Court recognizes that an individual's "interest in avoiding
disclosure of personal matters" is an aspect of the right of privacy, ante,
at 598-600, and nn. 24-25, but holds that in this case, any such interest
has not been seriously enough invaded by the State to require a showing
that its program was indispensable to the State's effort to control drug
|||The information disclosed by the physician under this program is made
available only to a small number of public health officials with a legitimate
interest in the information. As the record makes clear, New York has long
required doctors to make this information available to its officials on
request, and that practice is not challenged here. Such limited reporting
requirements in the medical field are familiar, ante, at 602 n. 29, and
are not generally regarded as an invasion of privacy. Broad dissemination
by state officials of such information, however, would clearly implicate
constitutionally protected privacy rights, and would presumably be justified
only by compelling state interests. See, e.g., Roe
v. Wade, 410 U.S. 113, 155-156 (1973).
|||What is more troubling about this scheme, however, is the central computer
storage of the data thus collected. Obviously, as the State argues, collection
and storage of data by the State that is in itself legitimate is not rendered
unconstitutional simply because new technology makes the State's operations
more efficient. However, as the example of the Fourth Amendment shows, the
Constitution puts limits not only on the type of information the State may
gather, but also on the means it may use to gather it. The central storage
and easy accessibility of computerized data vastly increase the potential
for abuse of that information, and I am not prepared to say that future
developments will not demonstrate the necessity of some curb on such technology.
|||In this case, as the Court's opinion makes clear, the State's carefully
designed program includes numerous safeguards intended to forestall the
danger of indiscriminate disclosure. Given this serious and, so far as the
record shows, successful effort to prevent abuse and limit access to the
personal information at issue, I cannot say that the statute's provisions
for computer storage, on their face, amount to a deprivation of constitutionally
protected privacy interests, any more than the more traditional reporting
|||In the absence of such a deprivation, the State was not required to prove
that the challenged statute is absolutely necessary to its attempt to control
drug abuse. Of course, a statute that did effect such a deprivation would
only be consistent with the Constitution if it were necessary to promote
a compelling state interest. Roe v. Wade,
supra; Eisenstadt v. Baird, 405 U.S. 438, 464 (1972) (WHITE, J., Concurring
|||JUSTICE STEWART, Concurring.
|||In Katz v. United States, 389 U.S. 347, the Court made clear that although
the Constitution affords protection against certain kinds of government
intrusions into personal and private matters, *fn1
there is no "general constitutional 'right to privacy.'... he protection
of a person's general right to privacy - his right to be let alone by other
people - is, like the protection of his property and of his very life, left
largely to the law of the individual States." Id., at 350-351 (footnote
|||JUSTICE BRENNAN'S Concurring opinion states that "road dissemination by
state officials of [the information collected by New York State]... would
clearly implicate constitutionally protected privacy rights...." Ante, at
606. The only possible support in his opinion for this statement is its
earlier reference to two footnotes in the Court's opinion, ibid., citing
ante, at 598-600, and nn. 24-25 (majority opinion). The footnotes, however,
cite to only two Court opinions, and those two cases do not support the
proposition advanced by MR. JUSTICE BRENNAN.
|||The first case referred to, Griswold v. Connecticut, 381 U.S. 479, held
that a State cannot constitutionally prohibit a married couple from using
contraceptives in the privacy of their home. Although the broad language
of the opinion includes a Discussion of privacy, see id., at 484-485, the
constitutional protection there discovered also related to (1) marriage,
see id., at 485-486; id., at 495 (Goldberg, J., Concurring); id., at 500
(Harlan, J., Concurring in judgment), citing Poe v. Ullman, 367 U.S. 497,
522 (Harlan, J., Dissenting); 381 U.S., at 502-503 (WHITE, J., Concurring
in judgment); (2) privacy in the home, see id., at 484-485 (majority opinion);
id., at 495 (Goldberg, J., Concurring); id., at (Harlan, J., Concurring
in judgment), citing Poe v. Ullman, (supra) , at 522 (Harlan, J., Dissenting);
and (3) the right to use contraceptives, see 381 U.S., at 503 (WHITE, J.,
Concurring in judgment); see also Roe v. Wade,
410 U.S. 113, 169-170 (STEWART, J., Concurring).Whatever the ratio decidendi
of Griswold, it does not recognize a general interest in freedom from disclosure
of private information.
|||The other case referred to, Stanley v. Georgia, 394 U.S. 557, held that
an individual cannot constitutionally be prosecuted for possession of obscene
materials in his home. Although Stanley makes some reference to privacy
rights, id., at 564, the holding there was simply that the First Amendment
- as made applicable to the States by the Fourteenth - protects a person's
right to read what he chooses in circumstances where that choice poses no
threat to the sensibilities or welfare of others, id., at 565-568.
|||Upon the understanding that nothing the Court says today is contrary to
the above views, I join its opinion and judgment.
|||* Evelle J. Younger, Attorney General of California, Jack R. Winkler,
Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General,
and Shunji Asari and Owen Lee Kwong, Deputy Attorneys General, filed a brief
for the State of California as amicus curiae urging reversal.
|||Robert Plotkin and Paul R. Friedman filed a brief for the National Association
of Mental Health et al. as amici curiae urging affirmance.
|||*fn1 1972 N.Y. Laws, c. 878;
N.Y. Pub. Health Law § 3300 et seq. (McKinney, Supp. 1976-1977) (hereafter
Pub. Health Law, except as indicated in n. 13, infra).
|||*fn2 Roe v. Ingraham, 403 F.
Supp. 931 (SDNY 1975). Earlier the District Court had dismissed the complaint
for want of a substantial federal question. Roe v. Ingraham, 357 F. Supp.
1217 (1973). The Court of Appeals reversed, holding that a substantial constitutional
question was presented and therefore a three-Judge court was required. Roe
v. Ingraham, 480 F.2d 102 (CA2 1973).
|||*fn3 Jurisdiction is conferred
by 28 U.S.C. §§ 1253, 2101(b).
|||*fn4 1970 N.Y. Laws, c. 474,
amended by 1971 N.Y. Laws, c. 7. The Temporary State Commission to Evaluate
the Drug Laws (hereafter T.S.C.) issued two reports which, it is stipulated,
constitute part of the legislative history of the Act. The reports are the
Interim Report of the Temporary State Commission to Evaluate the Drug Laws
(State of New York, Legislative Doc. No. 10, Jan. 1972); and the Second
Interim Report of the Temporary State Commission to Evaluate the Drug Laws
(Albany, N.Y., Apr. 5, 1971).
|||*fn5 Id., at 3-5.
|||*fn6 The Chairman of the T.S.C.
summarized its findings:
|||"Law enforcement officials in both California and Illinois have been consulted
in considerable depth about the use of multiple prescriptions, since they
have been using them for a considerable period of time. They indicate to
us that they are not only a useful adjunct to the proper identification
of culpable professional and unscrupulous drug abusers, but that they also
give a reliable statistical indication of the pattern of drug flow throughout
their states: information sorely needed in this state to stem the tide of
diversion of lawfully manufactured controlled substances." Memorandum of
Chester R. Hardt, App. 87a-88a.
|||T.S.C. Interim Report 21; T.S.C. Second Interim Report 27-44. Cal. Health
& Safety Code §§ 11158, 11160, 11167 (West, 1975 and Supp. 1976);
Ill. Ann. Stat., c. 56 1/2, §§ 1308, 1311, 1312(a) (Supp. 1977).
|||*fn7 These five schedules conform
in all material aspects with the drug schedules in the Federal Comprehensive
Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. § 801 et seq.
|||*fn8 These include opium and
opium derivatives, cocaine, methadone, amphetamines, and methaqualone. Pub.
Health Law § 3306. These drugs have accepted uses in the amelioration
of pain and in the treatment of epilepsy, narcolepsy, hyperkinesia, schizo-affective
disorders, and migraine headaches.
|||*fn9 Pub. Health Law §§
3334, 3338. These forms are prepared and issued by the Department of Health,
numbered serially, in groups of 100 forms at $10 per group (10 cents per
triplicate form). New York State Health Department - Official New York State
Prescription, Form NC-77 (8/72).
|||*fn10 Pub. Health Law §§
3331-3333, 3339. The pharmacist normally forwards the prescription to Albany
after filling it. If the physician dispenses the drug himself, he must forward
two copies of the prescription to the Department of Health, § 3331
|||*fn11 Pub. Health Law §
3370 (3), 1974 N. Y. Laws, c. 965, § 16. The physician and the pharmacist
are required to retain their copies for five years also, Pub. Health Law
§§ 3331 (6), 3332 (4), 3333(4), but they are not required to destroy
|||*fn12 Section 3371 of the Pub.
Health Law states:
|||"1. No person, who has knowledge by virtue of his office of the identity
of a particular patient or research subject, a manufacturing process, a
trade secret or a formula shall disclose such knowledge, or any report or
record thereof, except:
|||"(a) to another person employed by the department, for purposes of executing
provisions of this article; or
|||"(b) pursuant to judicial subpoena or court order in a criminal investigation
or proceeding; or
|||"(c) to an agency, department of government, or official board authorized
to regulate, license or otherwise supervise a person who is authorized by
this article to deal in controlled substances, or in the course of any investigation
or proceeding by or before such agency, department or board; or
|||"(d) to a central registry established pursuant to this article.
|||"2. In the course of any proceeding where such information is disclosed,
except when necessary to effectuate the rights of a party to the proceeding,
the court or presiding officer shall take such action as is necessary to
insure that such information, or record or report of such information is
not made public."
|||Pursuant to its statutory authority, the Department of Health has promulgated
regulations in respect of confidentiality as follows:
|||"No person who has knowledge by virtue of his office of the identity of
a particular patient or research subject, a manufacturing process, a trade
secret or a formula shall disclose such knowledge, or any report or record
|||"(a) to another person who by virtue of his office as an employee of the
department is entitled to obtain such information; or
|||"(b) pursuant to judicial subpoena or court order in a criminal investigation
or proceedings; or
|||"(c) to an agency, department of government, or official board authorized
to regulate, license or otherwise supervise a person who is authorized by
article 33 of the Public Health Law to deal in controlled substances, or
in the course of any investigation or proceeding by or before such agency,
department or board; or
|||"(d) to a central registry established pursuant to article 33 of the Public
Health Law." 10 N.Y.C.R.R. § 80.107 (1973).
|||*fn13 N. Y. Pub. Health Law
§ 12-b (2) (McKinney 1971).
|||*fn14 The physicians' associations,
Empire State Physicians Guild, Inc. and the American Federation of Physicians
and Dentists, articulate no claims which are severable from the claims of
the named physicians. We therefore find it unnecessary to consider whether
the organizations themselves may have standing to maintain these suits.
|||*fn15 In addition to the appeal
from the original dismissal of the complaint, the parties took depositions
which were made a part of the record and entered into a stipulation of facts.
|||*fn16 Two parents testified
that they were concerned that their children would be stigmatized by the
State's central filing system. One child had been taken off his Schedule
II medication because of this concern. Three adult patients testified that
they feared disclosure of their names would result from central filing of
patient identifications. One of them now obtains his drugs in another State.
The other two continue to receive Schedule II prescriptions in New York,
but continue to fear disclosure and stigmatization. Four physicians testified
that the prescription system entrenches on patients' privacy, and that each
had observed a reaction of shock, fear, and concern on the part of their
patients whom they had informed of the plan. One doctor refuses to prescribe
Schedule II drugs for his patients. On the other hand, over 100,000 patients
per month have been receiving Schedule II drug prescriptions without their
objections, if any, to central filing having come to the attention of the
District Court. The record shows that the provisions of the Act were brought
to the attention of the section on psychiatry of the New York State Medical
Society (App. 166a), but that body apparently declined to support this suit.
|||*fn17 Pub. Health Law §§
3331 (6), 3332 (2)(a), 3333 (4).
|||*fn18 Roe v.
Wade, 410 U.S. 113, 117; Griswold v. Connecticut, 381 U.S.
479, 481-482; Ferguson v. Skrupa, 372 U.S. 726, 729-730; FHA v. The Darlington,
Inc., 358 U.S. 84, 91-92.
|||*fn19 "We are not concerned,
however, with the wisdom, need, or appropriateness of the legislation."
Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U.S. 236,
|||*fn20 Mr. Justice Brandeis'
classic statement of the proposition merits reiteration:
|||"To stay experimentation in things social and economic is a grave responsibility.
Denial of the right to experiment may be fraught with serious consequences
to the Nation. It is one of the happy incidents of the federal system that
a single courageous State may, if its citizens choose, serve as a laboratory;
and try novel social and economic experiments without risk to the rest of
the country. This Court has the power to prevent an experiment. We may strike
down the statute which embodies it on the ground that, in our opinion, the
measure is arbitrary, capricious or unreasonable. We have power to do this,
because the due process clause has been held by the Court applicable to
matters of substantive law as well as to matters of procedure. But in the
exercise of this high power, we must be ever on our guard, lest we erect
our prejudices into legal principles. If we would guide by the light of
reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285
U.S. 262, 311 (dissenting opinion) (footnote omitted).
|||*fn21 The absence of detected
violations does not, of course, demonstrate that a statute has no significant
|||"From the beginning of civilized societies, legislators and Judges have
acted on various unprovable assumptions. Such assumptions underlie much
lawful state regulation of commercial and business affairs, ..." Paris Adult
Theatre I v. Slaton, 413 U.S. 49, 61 (citations omitted).
|||"Nothing in the Constitution prohibits a State from reaching... a Conclusion
and acting on it legislatively simply because there is no conclusive evidence
or empirical data." Id., at 63.
|||*fn22 "Such regulation, it
can be assumed, could take a variety of valid forms." Robinson v. California,
370 U.S. 660, 664. Cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S.
41, 45; Beauharnais v. Illinois, 343 U.S. 250, 261-262.
|||*fn23 As the basis for the
constitutional claim they rely on the shadows cast by a variety of provisions
in the Bill of Rights. Language in prior opinions of the Court or its individual
Justices provides support for the view that some personal rights "implicit
in the concept of ordered liberty" (see Palko v. Connecticut, 302 U.S. 319,
325, quoted in Roe v. Wade, 410
U.S., at 152), are so "fundamental" that an undefined penumbra may provide
them with an independent source of constitutional protection. In Roe
v. Wade, however, after carefully reviewing
those cases, the Court expressed the opinion that the "right of privacy"
is founded in the Fourteenth Amendment's concept of personal liberty, id.,
|||"This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel
it is, or, as the District Court determined, in the Ninth Amendment's reservation
of rights to the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy." Id., at 153 (emphasis added).
See also id., at 168-171 (STEWART, J., Concurring); Griswold v. Connecticut,
381 U.S. 479, 500 (Harlan, J., Concurring in judgment).
|||*fn24 Professor Kurland has
|||"The concept of a constitutional right of privacy still remains largely
undefined. There are at least three facets that have been partially revealed,
but their form and shape remain to be fully ascertained. The first is the
right of the individual to be free in his private affairs from governmental
surveillance and intrusion. The second is the right of an individual not
to have his private affairs made public by the government. The third is
the right of an individual to be free in action, thought, experience, and
belief from governmental compulsion." The private I, the University of Chicago
Magazine 7, 8 (autumn 1976). The first of the facets which he describes
is directly protected by the Fourth Amendment; the second and third correspond
to the two kinds of interests referred to in the text.
|||*fn25 In his Dissent in Olmstead
v. United States, 277 U.S. 438, 478, Mr. Justice Brandeis characterized
"the right to be let alone" as "the right most valued by civilized men";
in Griswold v. Connecticut, 381 U.S. 479, 483, the Court said: "he First
Amendment has a penumbra where privacy is protected from governmental intrusion."
See also Stanley v. Georgia, 394 U.S. 557; California Bankers Assn. v. Shultz,
416 U.S. 21, 79 (Douglas, J., Dissenting); id., at 78 (POWELL, J., Concurring).
|||*fn26 Roe v.
Wade, (supra) ; Doe v. Bolton, 410 U.S. 179; Loving v. Virginia,
388 U.S. 1; Griswold v. Connecticut, (supra) ; Pierce v. Society of Sisters,
268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Allgeyer v. Louisiana, 165
U.S. 578. In Paul v. Davis, 424 U.S. 693, 713, the Court characterized these
decisions as dealing with "matters relating to marriage, procreation, contraception,
family relationships, and child rearing and education. In these areas, it
has been held that there are limitations on the States' power to substantively
|||*fn27 The T.S.C.'s independent
investigation of the California and Illinois central filing systems failed
to reveal a single case of invasion of a patient's privacy. T.S.C. Memorandum
of Chester R. Hardt, Chairman, Re: Triplicate Prescriptions, New York State
Controlled Substances Act, effective Apr. 1, 1973 (reproduced at App. 88a).
|||Just last Term in Buckley v. Valeo, 424 U.S. 1, we rejected a contention
that the reporting requirements of the Federal Election Campaign Act of
1971 violated the First Amendment rights of those who contribute to minority
|||"But no appellant in this case has tendered record evidence.... Instead,
appellants primarily rely on 'the clearly articulated fears of individuals,
well experienced in the political process.'... At best they offer the testimony
of several minor-party officials that one or two persons refused to make
contributions because of the possibility of disclosure. On this record,
the substantial public interest in disclosure identified by the legislative
history of this Act outweighs the harm generally alleged." 424 U.S., at
71-72 (footnote omitted).
|||Here, too, appellees urge on us "clearly articulated fears" about the
pernicious effects of disclosure. But this requires us to assume even more
than that we refused to do in Buckley. There the disclosures were to be
made in accordance with the statutory scheme. Appellees' disclosures could
only be made if the statutory scheme were violated as described, (supra)
, at 594-595.
|||The fears of parents on behalf of their pre-adolescent children who are
receiving amphetamines in the treatment of hyperkinesia are doubly premature.
Not only must the Act's nondisclosure provisions be violated in order to
stigmatize the children as they enter adult life, but the provisions requiring
destruction of all prescription records after five years would have to be
ignored, see n. 11, (supra) , and accompanying text.
|||*fn28 The physician-patient
evidentiary privilege is unknown to the common law. In States where it exists
by legislative enactment, it is subject to many exceptions and to waiver
for many reasons. C. McCormick, Evidence §§ 98, 101-104 (2d ed.
1972); 8 J. Wigmore, Evidence § 2380, nn. 3, 5, 6, §§ 2388-2391
(McNaughton rev. ed. 1961).
|||*fn29 Familiar examples are
statutory reporting requirements relating to venereal disease, child abuse,
injuries caused by deadly weapons, and certifications of fetal death. Last
Term we upheld the recordkeeping requirements of the Missouri abortion laws
against a challenge based on the protected interest in making the abortion
decision free of governmental intrusion, Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52, 79-81.
|||*fn30 It is, of course, well
settled that the State has broad police powers in regulating the administration
of drugs by the health professions. Robinson v. California, 370 U.S., at
664-665; Minnesota ex rel. Whipple v. Martinson, 256 U.S., at 45; Barsky
v. Board of Regents, 347 U.S. 442, 449.
|||*fn31 In Doe v. Bolton, 410
U.S. 179, for instances, the constitutionally defective statute required
the written concurrence of two state-licensed physicians, other than the
patient's personal physician, before an abortion could be performed, and
the advance approval of a committee of not less than three members of the
hospital staff where the procedure was to be performed, regardless of whether
the committee members had a physician-patient relationship with the woman
|||*fn32 The Roe appellees also
claim that a constitutional privacy right emanates from the Fourth Amendment,
citing language in Terry v. Ohio, 392 U.S. 1, 9, at a point where it quotes
from Katz v. United States, 389 U.S. 347. But those cases involve affirmative,
unannounced, narrowly focused intrusions into individual privacy during
the course of criminal investigations. We have never carried the Fourth
Amendment's interest in privacy as far as the Roe appellees would have us.
We decline to do so now.
|||Likewise the Patient appellees derive a right to individual anonymity
from our freedom of association cases such as Bates v. Little Rock, 361
U.S. 516, 522-523, and NAACP v. Alabama, 357 U.S. 449, 462. But those cases
protect "freedom of association for the purpose of advancing ideas and airing
grievances," Bates v. Little Rock, (supra) , at 523, not anonymity in the
course of medical treatment. Also, in those cases there was an uncontroverted
showing of past harm through disclosure, NAACP v. Alabama, (supra) , at
462, an element which is absent here.
|||Cf. Schulman v. New York City Health & Hospitals Corp., 38 N.Y. 2d 234,
342 N.E.2d 501 (1975).
|||*fn33 The doctors rely on two
references to a physician's right to administer medical care in the opinion
in Doe v. Bolton, 410 U.S., at 197-198, and 199. Nothing in that case suggests
that a doctor's right to administer medical care has any greater strength
than his patient's right to receive such care. The constitutional right
vindicated in Doe was the right of a pregnant woman to decide whether or
not to bear a child without unwarranted state interference. The statutory
restrictions on the abortion procedures were invalid because they encumbered
the woman's exercise of that constitutionally protected right by placing
obstacles in the path of the doctor upon whom she was entitled to rely for
advice in connection with her decision. If those obstacles had not impacted
upon the woman's freedom to make a constitutionally protected decision,
if they had merely made the physician's work more laborious or less independent
without any impact on the patient, they would not have violated the Constitution.
|||*fn34 Boyer, Computerized Medical
Records and the Right to Privacy: The Emerging Federal Response, 25 Buffalo
L. Rev. 37 (1975); Miller, Computers, Data Banks and Individual Privacy:
An Overview, 4 Colum. Human Rights L. Rev. 1 (1972); A. Miller, The Assault
on Privacy (1971). See also Utz v. Cullinane, 172 U.S. App. D.C. 67, 78-82,
520 F.2d 467, 478-482 (1975).
|||1 See 389 U.S., at 350 n. 5:
|||"The First Amendment, for example, imposes limitations upon governmental
abridgment of 'freedom to associate and privacy in one's association.' NAACP
v. Alabama, 357 U.S. 449, 462. The Third Amendment's prohibition against
the unconsented peacetime quartering of soldiers protects another aspect
of privacy from governmental intrusion. To some extent, the Fifth Amendment
too 'reflects the Constitution's concern for... "... the right of each individual
'to a private enclave where he may lead a private life.'"' Tehan v. Shott,
382 U.S. 406, 416. Virtually every governmental action interferes with personal
privacy to some degree. The question in each case is whether that interference
violates a command of the United States Constitution."
|||As the Court notes, ante, at 599-600, and n. 26, there is also a line
of authority, often characterized as involving "privacy," affording constitutional
protection to the autonomy of an individual or a family unit in making decisions
generally relating to marriage, procreation, and raising children.
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