Roe v. Ingraham

• Decision Date: 23 August 1973
• Docket Number: No. 73 Civ. 1303.,73 Civ. 1303.
• Citation: 364 F. Supp. 536
• Parties: Richard ROE, an infant, by Robert Roe, his parent, et al., Plaintiffs, and George Patient et al., Intervenors, v. Hollis S. INGRAHAM, as Commissioner of Health of the State of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

364 F. Supp. 536

Richard ROE, an infant, by Robert Roe, his parent, et al., Plaintiffs and George Patient et al., Intervenors, v. Hollis S. INGRAHAM, as Commissioner of Health of the State of New York, Defendant.

No. 73 Civ. 1303.

United States District Court, S. D. New York.

August 23, 1973.

COPYRIGHT MATERIAL OMITTED

Michael Lesch, New York City (Barry L. Mendelsen, Solomon Z. Ferziger, Shea, Gould, Climenko & Kramer, New York City, of counsel), for plaintiffs.

Miles Jaffe, New York City (Norwick, Raggio & Jaffe, New York City, of counsel), for intervenors.

A. Seth Greenwald, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel H. Hirschowitz, First Asst. Atty. Gen., of counsel), for defendant.

Before FEINBERG, Circuit Judge, and WYATT and CARTER, District Judges.

OPINION

ROBERT L. CARTER, District Judge.

I

Statute Under Attack:

This action challenges the constitutionality of certain provisions of the New York State Controlled Substances Act (the "Act"), New York Laws 1972, ch. 878, N.Y. Public Health Law § 3300 et seq. (McKinney's Consol.Laws, c. 45, Supp.1972) effective April 1, 1973, as amended, New York Laws 1973, ch. 97, ch. 163, ch. 728. The Act attempts a comprehensive regulation of all facets of the legitimate drug trade — research, manufacture, medical prescription, wholesale and pharmaceutical distribution—in an effort to prevent and discover any diversion of this trade to illegitimate use.

The provisions of the Act apply to "controlled substances" — those drugs warranting regulation — which are described in detail in § 3306. Furthermore, that section classifies the regulated drugs into "schedules" depending upon the extent to which the drugs may be lawfully prescribed for medical purposes and the dangers inherent in their misuse. Thus, Schedule I drugs "are all highly abusable substances which have no current medical use or lack accepted safety for use in treatment under medical supervision in this country." Interim Report of the Temporary State Commission to Evaluate the Drug Laws ("Interim Report") at 13.¹ These drugs may not be prescribed, distributed or possessed for any purpose other than the strictly limited use described in Title III, §§ 3324-3329, pertaining to research and related activities, § 3330.

Schedule II contains "those substances which have a high potential for abuse, but also have an accepted or restricted medical use. Abuse of a Schedule II substance may lead to severe physiological dependence." Interim Report at 13. Schedules III, IV and V list those drugs having an accepted medical use but a potential, though in decreasing degree, for psychological and/or physiological dependence consequent to misuse.

The Act requires that an official New York State prescription form² be used to prescribe or dispense Schedule II drugs, § 3338(2)³, except in cases of emergencies § 3334. This triplicate form must contain the following information: the name, address and age of the patient; the name, address, registration number, telephone number and handwritten signature of the physician, directions for use (e. g., dosage, frequency of dosage and maximum daily use), and date the prescription was signed, § 3332.

In the event the drug is actually administered or dispensed by the prescribing physician, the doctor must retain a copy of the form in his files for a period of five years and file the original and one copy with the Department by the fifteenth day of the month following the month in which the drug was dispensed, § 3331(6). If, however, the prescription is to be dispensed by a pharmacist, the doctor shall keep one copy of the form in his files for a period of five years and deliver to the patient the original and one copy, § 3332(4). The drug user will deliver those two forms to the pharmacist who, upon filling the prescription, shall endorse the original and copy with the date of delivery, the pharmacist's registration number and his signature, § 3333(3). The original of the form will be retained by the pharmacist for five years and the copy must be filed with the Department of Health by the fifteenth day of the month following the month in which the drug was dispensed, § 3333(4).

The confidentiality of the records collected pursuant to the above procedures is protected as provided for in the statute, § 3371. That section 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 who by virtue of his office is entitled to obtain such information; 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.⁴

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 by virtue of his office has knowledge of any records required by article 33 of the Public Health Law or this Part shall disclose such knowledge, or any report or record thereof, except:

(a) to another person who by virtue of his office is entitled to obtain such information;

(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 this article to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board. 10 N.Y.C.R.R. § 80.107⁵

The Issue to be Decided:

Although the Act does not specifically so provide, it is alleged by plaintiffs and conceded by the state, that the Department of Health will, upon receipt of the prescription forms, enter the information received into a computer. This anticipated procedure is the focus of plaintiffs' complaint.

The original plaintiffs in this action include three infants (by their parents) and one adult receiving Schedule II drugs, two named doctors who prescribe such drugs, and the Empire State Physicians Guild, Inc.⁶ The plaintiffs complain of a violation of their constitutionally protected rights, 42 U. S.C. § 1983 and assert that the jurisdiction of the court is founded upon 28 U. S.C. § 1343(3). They allege that the reporting provisions of the Act

by requiring disclosure of the identity of certain patients . . . invades the patient's right of privacy and confidentiality, infringes on the doctor's right to prescribe treatment for his patients solely on the basis of medical considerations and discriminates against persons suffering from certain diseases by requiring their identification to a governmental agency as a condition to receiving medical treatment for their illness. Complaint, Para. 11.

Shortly after the commencement of the action a postoperative cancer patient and an individual suffering from migraine headaches, both of whom receive Schedule II drugs as medication, the physician prescribing such drugs for one of these patients, and the American Federation of Physicians intervened and filed a separate complaint.⁷ The intervenor plaintiffs repeat verbatim the language of the original complaint (quoted above) alleging that the Act is constitutionally infirm. In addition, the intervenors claim that the Act

on its face, conflicts with, is inconsistent with and overlaps federal law and federal regulation and is thus void, being in conflict with the commerce power of the United States government and the laws and regulations enacted by the United States pursuant thereto. Complaint, Para. 13.

Both complaints, in identical language, ask for preliminary and permanent injunctive relief and the determination of these issues by a three-judge court pursuant to 28 U.S.C. § 2281.

Prior Court Proceedings:

By Order to Show Cause filed on March 29, 1973, the same date as the filing of the complaint, plaintiffs requested a temporary restraining order enjoining the implementation of the Act which was to become effective on April 1, 1973.

The District Court, after hearing all counsel in chambers, and based upon a number of supporting affidavits and their exhibits, issued a temporary restraining order enjoining the defendant from filing or processing any prescription forms containing a patient's name, from requiring physicians or pharmacists to file such prescription forms with the Department, and requiring placing under seal any form received until dissolution of the order.⁸

On April 6, 1973, the district court heard oral argument on plaintiffs' motion to convene a three-judge court and defendant's motion, made on April 3, 1973, to dismiss the action. The court, D.C., 357 F.Supp. 1217, dismissed for lack of a substantial federal question both in respect of the claim of denial of equal protection and infringement of plaintiffs' right of privacy.⁹

The Court of Appeals reversed the order of dismissal. Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973). While agreeing that plaintiffs' equal protection claims were properly dismissed, the court concluded that "the question whether the right of privacy here asserted by the patients does enjoy some degree of constitutional protection is a substantial one." Id. at 108. Assuming...