Whalen v. Roe
Opinion of the Court
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
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.
The new New York statute classified potentially harmful drugs in five schedules.
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.
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.
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.
I
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 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
II
Appellees contend that the statute invades a constitutionally protected “zone of privacy.”
" 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
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.
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
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,
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
Ill
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’.
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.
Reversed.
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).
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).
Jurisdiction is conferred by 28 U. S. C. §§ 1253, 2101 (b).
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
Id., at 3-5.
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. 56y2, §§ 1308, 1311, 1312 (a) (Supp. 1977).
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.
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.
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).
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 (6).
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
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 thereof, except:
“(a) to another person who by virtue of his office as an employee of the department is entitled to obtain such information; or
*595 “(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).
N. Y. Pub. Health Law § 12-b (2) (McKinney 1971).
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.
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.
Two parents testified that they were concerned that their children
Pub. Health Law §§3331 (6), 3332 (2) (a), 3333 (4).
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.
“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, 246.
Mr. Justice Brandéis’ 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).
The absence of detected violations does not, of course, demonstrate that a statute has no significant deterrent effect.
“From the beginning of civilized societies, legislators and judges have acted on various improvable 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.
“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.
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
“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).
Professor Kurland has written:
“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.
In his dissent in Olmstead v. United States, 277 U. S. 438, 478, Mr. Justice Brandéis 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: “[T]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).
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 regulate conduct.”
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 parties:
“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.
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).
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.
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.
In Doe v. Bolton, 410 U. S. 179, for instance, 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 concerned.
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).
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
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).
Concurring Opinion
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. 2A-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 abuse.
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
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 provisions.
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 in result).
Concurring Opinion
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,
Mr. Justice Brennan’s concurring . opinion states that "[b]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. 24r-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
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.
See 389 U. S., at 350 n. 5:
“The First Amendment, for example, imposes limitations upon govern*608 mental 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.
Reference
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