Whalen v. Roe

Appellant
Whalen, Commissioner of Health New York
Appellees
Roe, et al.
Appellant's Claim
A New York state law requiring that the names of prescription drug users be sent to a computer for record-keeping did not violate the constitutional rightto privacy under the Fourteenth Amendment.
Chief Lawyer for Appellant
A. Seth Greenwald
Chief Lawyer for Appellees
Michael Lesch
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens (writing for the Court), Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
22 February 1977
Decision
The Court upheld a New York State law requiring that the names of prescription drug users be sent to a computer for record-keeping.
Significance
In Whalen v. Roe the Court established that liberty within itself wasnot a fundamental right guaranteed to all. If the state, as was the case withthe New York's drug prescription registry, could make a rational showing forthe law then it was not unconstitutional.
Prescription Drugs and the Patients' Right to Privacy
In response to escalating abuse of both lawful and illegally obtained drugs,the New York State legislature in 1970 established a commission to review thestate's drug control laws. The commission found much lacking with the state's drug control laws. For example, it was impossible to stop the use of stolenor altered prescription drugs. Additionally, there was no way to prevent unethical pharmacists from continuously refilling prescriptions, to keep users from obtaining prescriptions from more than one doctor, or to stop doctors from over prescribing drugs. Before adopting the central registry for drug prescriptions, the commission spoke with enforcement officials in California and Illinois where similar systems were in place.
The New York law placed potentially harmful drugs in five categories. Drugs such as heroin, for example, which was abused and had no discernible medical value, were Schedule I and cannot be prescribed. Drugs in Schedules II throughV had a lower potential for abuse and had legitimate medical use. The law required that all prescriptions for Schedule II drugs be prepared by a physician on an official form providing three copies. The completed form identified the prescribing physician, the dispensing pharmacy, the drug, its dosage, andthe name, address, and age of the patient. Under the statute, the physician kept one copy of the form, the pharmacist the second, and the third was retained by the New York State Department of Health. Schedule II prescriptions werelimited to a 30-day supply, and could not be refilled.
The district court found that each month about 100,000 Schedule II forms weresent to the Department of Health in Albany, New York. Once in Albany, the forms were sorted, coded, logged, and then recorded on magnetic tapes for processing by the computer. Under the statute, the forms were stored for five years and then destroyed. The computer information was kept in a locked cabinet.The computer tapes were run "off-line," which meant that no other terminals could read or record the information. The statute prohibited disclosure of thepatients' identity. Violating the statute was punishable by up to one year in prison and a $2,000 fine. When the statute was challenged in court, 17 Department of Health employees had access to the files and 24 investigators wereauthorized to investigate the dispensing by using the information stored in the computer. Nearly, two years after the statute was passed, the computer registry had been used in only two investigations.
Just days before the law went into effect, a group of patients receiving Schedule II drugs on a regular basis, doctors prescribing the Schedule II drugs,and two physicians associations challenged the constitutionality of the law in court. A three-judge district court held a one-day trial. At the brief trial, the appellees presented evidence that some individuals in need of ScheduleII drugs would avoid treatment fearful of being identified as a drug addict.The district court ruled that "the doctor-patient relationship is one of thezones of privacy accorded constitutional protection." Additionally, the court concluded that the statute invaded that privacy with "a needlessly broad sweep." The district court concluded that the state was unable to prove the need for the patient-identification requirement over the 20-months the statute was in effect.
In a unanimous opinion, the Supreme Court reasoned that "the district court'sfinding that the necessity for the requirement had not been proved is not, therefore, a sufficient reason for holding the statutory requirement unconstitutional." The appellees argued and the district court agreed that the statuteviolated a constitutionally protected "zone of privacy." Yet, Justice Stevens writing for the majority, reasoned that cases involving a "zone of privacy"traditionally included an individual trying to prevent disclosure of a personal matter and independence in making certain kinds of decisions, but that the New York statute did not violate these interests. He wrote:

Themere existence in readily available form of the information about patients'use of Schedule II drugs creates a genuine concern that the information willbecome publicly known and that it will adversely affect their reputations. This concern makes some patients reluctant to use and some doctors reluctant toprescribe such drugs even when their use is medically indicated. It follows,they argue, that the making of decisions about matters vital to the care oftheir health is inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the nondisclosure of private informationand their interest in making important decisions independently. 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.

Impact
The Court established a tier system for determining constitutionally protected areas of privacy and areas in which the state could intrude upon that zone.Prior to Whalen v. Roe in cases such as Roe v. Wade and Griswold v. Connecticut the Court concluded that individuals have a right tomake a decision. In Roe, for instance, a woman's right to terminate apregnancy was a fundamentally protected constitutional right. Yet, preventing one's name from being included in a computerized drug registry was not a constitutionally protected right. Just a year before the ruling in Whalen v.Roe, the Court in Kelley v. Johnson upheld a police department regulation regulating the length and style of a policeman's haircut. The Courtreasoned that there was no fundamental right for police officers to wear their hair any way they wanted.
Related Cases

• Kelley v. Johnson, 425 U.S. 238 (1976).
  
• Youngberg v. Romeo, 457 U.S. 307 (1982).
  
• Roberts v. United Jaycees, 468 U.S. 609 (1984).
  
• Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).