Whalen v. Roe

In response to escalating abuse of both lawful and illegally obtained drugs, the New York State legislature in 1970 established a commission to review the state'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 stolen or 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 through V 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, and the 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 were limited to a 30-day supply, and could not be refilled.

The district court found that each month about 100,000 Schedule II forms were sent 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 the patients' 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 were authorized 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 Schedule II drugs would avoid treatment fearful of being identified as a drug addict. The district court ruled that "the doctor-patient relationship is one of the zones 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's finding 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 statute violated 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:

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