Reproductive Services, Inc v. Walker, A-1091

• Decision Date: 17 July 1978
• Docket Number: No. A-1091,A-1091
• Parties: REPRODUCTIVE SERVICES, INC., Applicant, v. Dee Brown WALKER, District Judge
• Court: U.S. Supreme Court

439 U.S. 1307

99 S.Ct. 1

439 U.S. 1354

58 L.Ed.2d 16

58 L.Ed.2d 61

REPRODUCTIVE SERVICES, INC., Applicant,

v Dee Brown WALKER, District Judge.

No. A-1091.

July 17, 1978.

On Renewed Application to Stay

Aug. 21, 1978.

Mr. Justice BRENNAN.

I have before me an application ¹ to stay an order of the Supreme Court of Texas, which denied applicant's motion for a writ of mandamus directed to respondent. The questions at issue here arise in a suit brought by Claudia E. Lott against applicant, which in essence charged applicant with medical malpractice in performing an abortion on Mrs. Lott. The complaint further charged applicant with violating the Texas Deceptive Trade Practices-Consumer Protection Act. Texas Bus. & Com.Code Ann. § 17.41 et seq. (Supp.1977), in that applicant misrepresented the quality of care it was prepared to provide and failed to disclose material information regarding the risks involved in procedures used at applicant's abortion clinics. The State of Texas was allowed to intervene in this action pursuant to the Deceptive Practices Act. Mrs. Lott and the State of Texas are the true parties in interest here.

Mrs. Lott caused a subpoena duces tecum to be issued against applicant. This subpoena sought the medical records of five named patients at applicant's clinics and also sought the medical records of any other patient who had any major or serious complications arising from an abortion at applicants' clinics or who had received certain medications. Applicant sought to quash this subpoena on the ground of invasion of its patients' privacy. This motion was granted in part by the respondent trial judge, who ruled that the records must be turned over, but that patient names could be deleted. Applicant sought mandamus in the Supreme Court of Texas to overturn this order. Subsequently counsel for applicant, Mrs. Lott, and the State of Texas entered a consent order and temporary injunction in which applicant agreed that on determination of applicant's petition for mandamus the State could take discovery "on all names of all patients of [applicant's] Clinics throughout the State and all records on the nature of the conditions shown in those records."

The question sought to be raised by applicant—whether the names of abortion patients can be obtained by discovery for use in a civil suit against a person or clinic performing abortions where, as here, the parties have not agreed to a protective order to ensure the privacy of those patients—is a serious one. If this question were in fact presented by this case, I am of the view that four Members of this Court would vote to grant certiorari to hear it.² However, this issue is not presented here. First, the order of the trial court challenged by applicant's petition...