Whalen v. Roe, No. 75-839

CourtUnited States Supreme Court
Writing for the CourtSTEVENS
Citation51 L.Ed.2d 64,97 S.Ct. 869,429 U.S. 589
Docket NumberNo. 75-839
Decision Date22 February 1977
PartiesRobert P. WHALEN, as Commissioner of Health of New York, Appellant, v. Richard ROE, an infant by Robert Roe, his parent, et al

429 U.S. 589
97 S.Ct. 869
51 L.Ed.2d 64
Robert P. WHALEN, as Commissioner of Health of New York, Appellant,

v.

Richard ROE, an infant by Robert Roe, his parent, et al.

No. 75-839.
Argued Oct. 13, 1976.
Decided Feb. 22, 1977.
Syllabus

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. Pp. 598-604.

(a) The possibility that a doctor or pharmacist may voluntarily

Page 590

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.

A. Seth Greenwald, New York City. for appellant.

Michael O. Lesch and by H. Miles Jaffe, New York City, for appellees.

Page 591

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 1 which require such recording on the ground that they violate appellees' constitutionally protected rights of privacy.2 We noted probable jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 310, and now reverse.3

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.4 The commission found the existing laws defi-

Page 592

cient 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 over-prescribing, either by authorizing an excessive amount in one prescription or by giving one patient multiple prescriptions.5 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 effectively.6

The new New York statute classified potentially harmful drugs in five schedules.7 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

Page 593

concern is limited to Schedule II which includes the most dangerous of the legitimate drugs.8

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.9 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.10

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.11

Page 594

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.12 Willful viola-

Page 595

tion of these prohibitions is a crime punishable by up to one year in prison and a $2,000 fine.13 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 patients.

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.14 After various preliminary proceedings,15 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 misuse of the computerized data will cause them to be stigmatized as "drug addicts." 16

65 ¢s596¢s-

Page 596

The District Court held that "the doctor-patient relationship intrudes on 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.17

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, 25 S.Ct. 539, 49 L.Ed. 937, 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, 25 S.Ct., at 543.

Page 597

The holding in Lochner has been implicitly rejected many times.18 State legislation which has some effect on individual liberty or privacy may not be held...

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1551 practice notes
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...recognized in the past, the constitutional right of privacy has protected against disclosure to the state. 13 See, e.g., Whalen v. Roe, 429 U.S. 589, 599, 602, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Suppose plaintiffs prevailed, suppose members of their class had a due process right to be trea......
  • BJRL v. State of Utah, Civ. No. C86-324G.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • January 28, 1987
    ...of the fact that they were born out of wedlock violates their right to privacy. The United States Supreme Court in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) distinguished between two separate types of privacy interests. One type is an "interest in independence in makin......
  • Konopka v. Borough of Wyoming, No. CIV.A.3:03 CV 894.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 25, 2005
    ...in avoiding the disclosure of personal matters; and (2) the right to autonomy and independence in personal decision-making. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). As noted by the Third Circuit Court of Appeals, "Cases in the latter category describe the li......
  • Bedford v. Sugarman, No. 55358-1
    • United States
    • United States State Supreme Court of Washington
    • May 4, 1989
    ...however, holds that "the 'right of privacy' is founded in the Fourteenth Amendment's concept of personal liberty". Whalen v. Roe, 429 U.S. 589, 598 n. 23, 97 S.Ct. 869, 876 n. 23, 51 L.Ed.2d 64 (1977); see Carey v. Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d ......
  • Request a trial to view additional results
1543 cases
  • Franklin v. District of Columbia, No. 97-7162
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 22, 1999
    ...recognized in the past, the constitutional right of privacy has protected against disclosure to the state. 13 See, e.g., Whalen v. Roe, 429 U.S. 589, 599, 602, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Suppose plaintiffs prevailed, suppose members of their class had a due process right to be trea......
  • BJRL v. State of Utah, Civ. No. C86-324G.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • January 28, 1987
    ...of the fact that they were born out of wedlock violates their right to privacy. The United States Supreme Court in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) distinguished between two separate types of privacy interests. One type is an "interest in independence in ......
  • Konopka v. Borough of Wyoming, No. CIV.A.3:03 CV 894.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 25, 2005
    ...in avoiding the disclosure of personal matters; and (2) the right to autonomy and independence in personal decision-making. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). As noted by the Third Circuit Court of Appeals, "Cases in the latter category describe t......
  • Bedford v. Sugarman, No. 55358-1
    • United States
    • United States State Supreme Court of Washington
    • May 4, 1989
    ...holds that "the 'right of privacy' is founded in the Fourteenth Amendment's concept of personal liberty". Whalen v. Roe, 429 U.S. 589, 598 n. 23, 97 S.Ct. 869, 876 n. 23, 51 L.Ed.2d 64 (1977); see Carey v. Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d......
  • Request a trial to view additional results
2 firm's commentaries
  • Federal Preemption of State Attempts To Ban FDA-Approved Abortion Drugs After Dobbs
    • United States
    • LexBlog United States
    • June 28, 2022
    ...§40:962.2. States can exercise control (for good or ill) over medical practice, including the prohibition of illegal drugs. Whalen v. Roe, 429 U.S. 589, 597 (1977); Robinson v. California, 370 U.S. 660, 664 (1962). But when the FDA has approved a product, states no longer have the power to ......
  • QI Granted, Penis Missing
    • United States
    • LexBlog United States
    • March 4, 2022
    ...due process clause has been interpreted to include “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Courts of appeals, including this circuit, “have interpreted Whalen to recognize a constitutional right to the privacy of med......
2 books & journal articles
  • TAKING DISABILITY PUBLIC.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 6, June 2021
    • June 1, 2021
    ...of the Court's informational privacy jurisprudence); Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989) (same). (58) 429 U.S. 589, 598-600 (59) See generally, e.g., Scott Skinner-Thompson, Outing Privacy, 110 Nw. U. L. REV. 159 (2015). (60) Whalen, 429 U.S. at 598-600. As Rob......
  • Privacy and the Workplace
    • United States
    • Review of Public Personnel Administration Nbr. 16-2, April 1996
    • April 1, 1996
    ...v. Westmghouse Electric Co., 638 F.2nd. 570at 577 (3rd Cir. 1980)Watkins v. L M Berry & Co., 704 F.2nd. 583 (11Cir. 1983).Whalen v. Roe, 429 U.S 589 (1977).Wilner v Thornburgh, 928 F.2nd. 1185 (D. C....

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