Schulman v. New York City Health & Hospital Corp.

• Decision Date: 04 December 1975
• Citation: 38 N.Y.2d 234,342 N.E.2d 501,379 N.Y.S.2d 702
• Parties: , 342 N.E.2d 501 In the Matter of Harold SCHULMAN et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 702

379 N.Y.S.2d 702

38 N.Y.2d 234, 342 N.E.2d 501

In the Matter of Harold SCHULMAN et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.

Court of Appeals of New York.

Dec. 4, 1975.

H. Miles Jaffe, New York City, for appellants.

W. Bernard Richland, Corp. Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan, New York City, of counsel), for respondents.

Nancy Stearns, New York City, for New York City Chapter of National Organization for Women, amicus curiae.

GABRIELLI, Justice.

Petitioners challenge, primarily on constitutional grounds, respondent's requirement that a certificate of termination of pregnancy, a form whose execution is mandated by section 204 of the New York City Health Code, include the name and address of the patient obtaining the abortion. Appellant Dr. Harold Schulman is the director of obstetrics as the Bronx Municipal Hospital and appellant Jane Doe is the fictitious name of a patient on whom Dr. Schulman performed an abortion. At his patient's behest, Dr. Schulman did not file a pregnancy termination certificate. Petitioners argue that the name requirement violates a woman's qualified right to an abortion enunciated by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; and they claim, additionally, that it violates the right to privacy 'connected with the use of an individual's name.'

Section 204.03 of the New York City Health Code provides that a termination of pregnancy occurring in New York shall be reported to the Department of Health within 24 hours of the termination, by the person in charge of the hospital in which the abortion occurs. Section 204.05 of the code vests the New York City Board of Health with the authority to prescribe the form and content of the certificate. ¹ Finally, and of particularly significant importance here, section 204.07 of the code, as amended by resolution of the Board of Health (pursuant to section 1706 of the New York City Charter), effective November 24, 1973, provides that: 'The certificate of termination of pregnancy shall not be subject to subpoena or to inspection by persons other than the Commissioner or authorized personnel of the Department.'

The record indicates that these provisions of the Health Code were enacted in connection with the passage of the State liberal abortion reform law (Penal Law, § 125.05, subd. 3; L.1970, ch. 127) and prior to the Supreme Court decisions in Roe v. Wade (supra) and Doe v. Bolton (supra), in order, according to respondent, to safeguard the privacy and sensitivity of women undergoing abortions by differentiating a pregnancy termination certificate from a 'fetal death certificate.'

Respondent urges that the reporting requirement was designed to monitor the safety and effectiveness of New York City's pilot program in legal abortions. The city points out that data from the New York City program was relied upon by the Supreme Court to support its premise that abortions prior to the end of the first trimester produced as low or lower death rates than normal childbirth (see Roe v. Wade, supra, 410 U.S. p. 149, n. 44, 93 S.Ct. 705). Two public health experts, Doctors Donna O'Hare and Jean Pakter, submitted important background affidavits showing clearly that the certificates were directed toward the accomplishment of seven public health objectives:

1. Allowing follow-up where complications ensue.

2. Enabling the Department of Health to determine whether orthodox procedures were followed.

3. Enabling the department to determine whether further investigation or regulation is required.

5. Ensuring the efficient compilation of this data and to allow the department to retrieve a particular patient's record from an abortion service where patients are identified only by name and address.

6. Offering public health counseling on adequate family planning measures as alternative means of birth control to repeated abortions.

7. Ensuring that women who test positive for venereal disease, sickle cell anemia, and RH negative factor which affect the health of any future children receive proper public health counseling and treatment.

Respondent successfully demonstrated that, while a woman's own doctor is in the position to perform many of these functions, he is unable to acquire the broad statistical sampling of data necessary to the establishment of public health programs and the advancement of medical research. The need for such programs is particularly critical in the case of indigent women who do not have private physicians on whom they may rely for after-care medical advice; rather, these women are admitted as clinic patients without attending physicians. The services provided by the Department of Health may, in fact, be the only means of securing adequate medical care for these women.

It is further claimed by the city that the name requirement insures accountability for proper abortion procedures. Anonymo pregnancy termination certificates would encourage careless and inaccurate reporting, and ultimately destroy accountability. ² The pregnancy termination certificate enables the Department of Health to ascertain whether proper procedures are being followed in second trimester abortions, an area of permissible State regulation under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 Supra, and to determine whether second trimester abortions are being falsely reported as first trimester abortions in order to avoid the stricter limitations governing the former. Moreover, the inclusion of names on the pregnancy termination certificate offers the most practicable means for researchers to retrieve a patient's hospital records containing detailed information regarding the treatment afforded to the patient.

Those of the majority do not necessarily all agree that each of the city's articulated objectives is sufficient to sustain this mandatory reporting requirement. This is not critical because all do agree that the reporting requirement with centralized computer recording does enable the city to obtain and to have usefully available current statistical data on the basis of which to discharge the city's responsibility for effective, up-to-date monitoring of abortion practices as well as to plan for the availability and distribution of services and facilities. Not only is a statistical predicate necessary but any reliable evaluation must include opportunity as well for suitable random inquiry of individuals who have used the services.

In Roe v. Wade, supra, p. 155, 93 S.Ct. p. 728 the Supreme Court asserted that governmental regulations limiting fundamental rights may be justified only by a 'compelling state interest' and that legislation or regulations affecting these rights must be 'narrowly drawn to express only the legitimate state interests at stake.' The court held that there was a qualified right to an abortion inherent in the right to privacy explicitly recognized in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; see, also, Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. The right was qualified by the 'compelling state interests' in protecting the health of the pregnant woman during the second trimester of pregnancy and that of the fetus at the 'stage subsequent to viability', defined by the court as the beginning of the third trimester (Roe v. Wade, supra, 410 U.S. p. 164, 93 S.Ct. 705). We hold that the inclusion of the patient's name in the pregnancy termination certificate does not infringe upon this right to an abortion or interfere with a woman's decision to have an abortion. Rather, the pregnancy termination certificate is precisely tailored and reasonably related to the compelling governmental interest in maternal health attaching during the second trimester of pregnancy. The record is completely devoid of any proof that the name requirement dissuades potential abortion recipients from obtaining abortions in New York City. Petitioners advance only unsubstantiated allegations of subjective chill, from which no actual chilling effect can logically be inferred (cf. Laird v. Tatum, 408 U.S. 1, 13--14, 92 S.Ct. 2318, 33 L.Ed.2d 154). The city has adequately insured, and the code so provides, that the information provided by the patient is cloaked with confidentiality and shielded from disclosure to unauthorized persons. Thus, we conclude that there can be no threat, real or otherwise, that the contents of a pregnancy termination certificate will become subject to public disclosure. ³

In accord with our reasoning is the decision of the three-Judge United States District Court in Planned Parenthood of Cent. Mo. v. Danforth, 392 F.Supp. 1362, probable jurisdiction noted 423 U.S. 819, 96 S.Ct. 31, 46 L.Ed.2d 36, 1975. Reviewing reporting requirements similar to those as issue here (in addition to other State regulations governing abortions), the court stated that, 'The acquisition of data is essential to the advancement of medical knowledge. These provisions establish reporting procedures for statistical purposes only, and require that the division of health ensure the confidentiality of all information. Nothing in these sections would serve to restrict either the abortion decision itself or the exercise of medical judgment in performing an abortion.' (Planned Parenthood of Cent. Mo. v. Danforth, supra, p. 1374.) No similar confidentiality safeguard was contained in the sections of the New York State Health Law, governing the reporting of prescriptions for certain controlled drugs, held unconstitutional by the United States District Court in Roe v. Ingraham (403 F.Supp. 931 (Aug. 13, 1975)). In that case, too, there was...