Whalen v. Roe – Oral Argument – October 13, 1976

Media for Whalen v. Roe

Audio Transcription for Opinion Announcement – February 22, 1977 in Whalen v. Roe

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Warren E. Burger:

We will hear arguments next in 75-839, Whalen against Richard Roe and the others.

Mr. Greenwald, you may proceed whenever you are ready.

A. Seth Greenwald:

Mr. Chief Justice and may it please the Court.

This is an appeal from a judgment of the United States District Court for the Southern District of New York which declared unconstitutional enjoined the operation of three sections of the New York Public Health Law contained an article 33 of that law which deals with controlled substances, dangerous drugs, and alike.

Actually, only Section 3332 (2) (a) is involved.

That is the provision that requires that on filed official New York State descriptions, the names and addresses of patients be contained thereon, and be filed with the New York State Department of Health whose commissioner is the Appellant herein.

The District Court enjoined this statute on the basis that this provision was an invasion on privacy of the appellees who are anonymous, basically anonymous patients and known doctors.

I would allude to the operation of the other sections which were enjoined.

They require the use of the official New York State description in prescribing these certain dangerous drugs, and this applies to doctors and pharmacist in the State of New York.

Does New York have any legal requirement that either pharmacist in question or the doctor in question, keep a record of drugs he has prescribed and that that record be available for inspection on the premises?

A. Seth Greenwald:

Basically, yes.

As it was in the prior law under this triplicate prescription system, one copy of the prescription is kept by the doctor if he self dispenses the drug or the pharmacist who fills that description.

So therefore, the doctor or pharmacist does have to keep these records and the statute so provides for a period of five years they have to keep these records.

Did your opponents challenge the constitutionality of the requirement that that record be open for inspection?

A. Seth Greenwald:

No, and indeed the District Court in one of its prior decision, I think even decision that resulted in the judgment, stated that the appellees conceded the constitutionality of the prior requirements of law.

I would only point out of course that not being an issue, that provision or requirement not being an issue certainly at this time.

It is nothing else, it is presumed constitutional, it is not an issue in this case.

Now —

The name of the patient would be disclosed under the prior law, wouldn’t it, beyond the description on it?

A. Seth Greenwald:

Oh, yes of course, yes right.

The name of the patient under the prior law, and this is at least for 40 years, was available to the New York State Department of Health.

Upon demand.

A. Seth Greenwald:

Upon demand or basically —

For periodic inspection.

A. Seth Greenwald:

Periodic inspection of pharmacist’s file of prescription records.

But it wasn’t automatically filed in a computer anomaly?

A. Seth Greenwald:

Well, I would say that what the law request requires is that it be each month the (Inaudible) file were sent up to the Department of Health in Albany.

I would, at this point, like to point out, the computerization is not a requirement of law and administrative operation.

But that in fact was the difference between the old law and the present law being attacked, by the present law that is being attacked.

A. Seth Greenwald:

Yes, I think the requirements of filing and I think, at this point, what was the purpose of requiring filing in triplicate descriptions.

Does New York have a statute requiring gunshot wounds to be recorded by a physician?

A. Seth Greenwald:

Oh yes, they have a —

Passed on by the Court of Appeals of New York?

A. Seth Greenwald:

I am not aware but I believe that it had a general variety of medical reporting statutes such as gunshot wounds, venereal disease, contagious diseases and alike, and I do not believe it is up to the file because it is rather obvious they serve a public health need as does this filing statute also, and this is the question of purpose.

This is whole point in the case, isn’t it?

A. Seth Greenwald:

Well, I think that —

I don’t think the other side agrees with it.

A. Seth Greenwald:

Yes.

I think that the purpose is rather obvious.

Number one, it is only for a certain type of dangerous and high performing drugs that is called the Schedule II drug which have been found to be forming psychologically dependent attitude and alike.

It does not cover the whole spectrum of prescription prescribing.

The State of New York is not engaging in some wholesale supervision of the practice of medicine.

We do not even know what elements are involved here.

It only concerns narcotic and amphetamine-type drugs where the danger or abuse of the public health, danger to the public health is greatest.

Now, it has been conceded in the decision I think my adversary is that abuse in diversion of these type of drugs from legitimate channels is a serious problem, and indeed there is a serious problem in this area of misapplication of what I say, ‘Medical Principles’.

A lot of these drugs are prescribed by doctor studies have been made for causing medical uses for rather fallacious reasons.

Further, I would submit that — or I think it is rather obvious that inclusion of the names and addresses on the file prescriptions do assist in deterring and exposing prescriptions which are not within the law.

They assist in investigations.

In this area, the State of New York is exercising its police power in the interest of the public health and safety.

It is regulating the use of dangerous drugs, those which are habit-forming which it has for over fifty years since I cite the Whipple v. Martinson case, then recognized by this Court, it is clearly within a state of power that discretion and the control of this type of dangerous drug.

Mr. Greenwald I may be sure, you are taking a position that if you did not have the names and addresses, the state could not effectively do what it wants to do under the statute.

A. Seth Greenwald:

That is quite clear and obvious, even from the decision below, it tried to explain away the reasons for names and addresses on, say, basis of number of fallacious assumptions, and I would say of course it was the true primary purpose perhaps of the filing to identify a patient going from doctor to doctor and receiving, say, even from one or more doctors in over 30 days supply, but that was not the only purpose, and I would emphasize that the appellant never conceded that it was.

Well, I suppose it is to reach doctors like the late Dr. Moore whose case we had here a year or two ago who gave prescriptions particularly to who never came to his office, he just gave them out wholesaler.

A. Seth Greenwald:

That is part of the —

Would the statute catch that kind of violation?

A. Seth Greenwald:

Quite clearly, it would catch that type of violation and having the names and addresses of that doctors and patients would be quite valuable in the investigation of that doctor’s activities.

The record shows you did not need it.

In fact, you did not say?

A. Seth Greenwald:

I would say — now the question I think — I am not that well acquainted with the case of Dr. Moore but I would emphasize that the case — I just cite a similar type of case that did not reach this court, United States v. Warren.

It takes months and months of laborious investigation to build a case against the doctor like this one, some of the activities of this type of doctor so well-known they printed up in the newspapers.

A. Seth Greenwald:

The point being that filing with names and addresses so we know who are the patients, the supposed patient you might say, obviously enables the enforcement authorities to much more quickly bring proceedings against that type of doctor to have a full picture of this type of activities to better control this illegal activity.

Let us put it quite bluntly because this has been the record.

So, deter this activity from taking place this type of medical practice not within any ethical principles from either taking place in the first place.

Now, as I said, we do have — and it is rather obvious that the problem or the situation, I will say the situation of a patient, it is a bogus patient basically, going from one doctor to another to obtain this type of dangerous drug.

If he goes from doctor to doctor, there is really no conceivable way that this type of activity is going to be exposed unless you have patient’s names and addresses because you correlate the patient’s…

And of course patients couldn’t use a different name each place.

A. Seth Greenwald:

Now that assumes that that patient, that person is going to violate another section of the law.

We have a prohibition against of course using false names or fraud in deception, and so just simple assume that that type of person is going to violate one law, two laws, three laws, I think it simply specious.

There’s no answer to —

Specious! Did you mean that a person that is addicted to dope, is worried about law violations.

You should know about everything else, do you know about that?

We will commit…

A. Seth Greenwald:

My answer to you is that this Court a number of years ago held that the condition of being a drug addict is not a crime.

I believe that was in…

Yeah but this is not the short answer to the broad question that you cannot catch them all but you are going to try to catch as many as you can.

A. Seth Greenwald:

Well, certainly that is the case.

We cannot assume that every single person is going around, using all types of things, and I would also say that if a doctor is doing his job, he might say or practicing medicine properly, there are many situations where a patient or a person coming around who just cannot use a false name.

Many times these people are on Medicare or Medicaid.

Obviously there are other ways to check.

The use of a false name would expose their type of activity even more quickly.

Thurgood Marshall:

In New York city the doctor does not know where the patient lives.

In New York City, believed or not, I don’t think judicial notice is not a rule to deal with it.

A. Seth Greenwald:

I will also state that when I am from New York City and that when I go to my doctor, after I go – and this is I think a typical procedure – a bill is mailed to me.

That bill did not get to me, the doctor would be put on some notice that something is out of touch.

Thurgood Marshall:

Well, I wouldn’t imagine that the doctor you are talking about, do not give bills.

A. Seth Greenwald:

That may be another thing we would like to investigate in this case because what we find a lot of times is these doctors who are engaged in this type of activity do not keep medical records.

Indeed, the triplicate prescription with the names and address may be the only record of what is going on in this doctor’s practice or so-called practice.

Thurgood Marshall:

The Schedule II drugs are, as I understand it, are various drugs that have a preferably good medical and pharmaceutical purpose when properly used and prescribed for certain given elements, physical or emotional or whatever, but whose used by people who do not need them or whose overused maybe even by people who do need them, is an abuse, and can become, can lead to physical or psychological dependence.

Is that right?

A. Seth Greenwald:

Yes.

Thurgood Marshall:

So, the Schedule II drugs are not hardcore narcotics, are they?

A. Seth Greenwald:

Well, when you talk about Schedule II drugs, they are in part narcotics.

If you talk about hardcore narcotics, the three drugs such as say, heroin that is in, what is called, the Schedule I absolutely prohibited because there is no record of use.

Right, nobody can prescribe that.

A. Seth Greenwald:

However, I would like to emphasize – and we did not make an issue of it in this case.

Yes, the Schedule II drugs do have recognized medical uses but even these recognized medical uses are subject to great disputes.

Let me ask it this way without getting into – I do not know anything about drugs and medicine and I presume you do not either, but —

A. Seth Greenwald:

More than before I started in this case.

New York has not prohibited commerce in any of these Schedule II drugs, has it?

A. Seth Greenwald:

Absolutely not, we make no judgments or we do not look over the doctor’s shoulder before he prescribes a drug.

Well, all of these are permissible for a doctor to prescribe, none of them are prohibited such as heroin would be and is.

A. Seth Greenwald:

That is correct.

These drugs do —

Either sleeping pills and various emotional tranquilizes and so on and that sort of thing.

A. Seth Greenwald:

Yes, I would say morphine would be one type.

That is a narcotic type drug.

For example, I believe an amphetamine type one which is quite frequent in this case, one called Ritalin which has several uses.

I think morphine is included.

A. Seth Greenwald:

Morphine, yes morphine is included.

As a Title II drug?

A. Seth Greenwald:

As a title II drug, because Morphine is an opium derivative and habit forming and dangerous.

It is not —

Any difference suit from your point of view on the police power of the state in controlling any of these drugs?

A. Seth Greenwald:

Well, I think it is clearly within the police power of the state to control these drugs and part of the control is the method of distribution and the distribution is ultimate use of this part.

Now, if I —

You make it clarity of it in your substances to balance the argument, the purpose of my question was to understand the context of this statutory requirement.

We are not dealing here with contravene as such.

A. Seth Greenwald:

No, basically and it is in the legislative history, this law is not designed to control perhaps the most serious problem of street drugs.

This statute is designed to control or better regulate the problem of diversion from apparently legitimate sources.

Now —

Mr. Greenwald one more question to know, if we affirm here, do you feel the existing reporting requirements as to venereal disease, infectious disease, gunshot wounds of your state will be jeopardized?

A. Seth Greenwald:

Yes, I think quite seriously they will be in great jeopardy and perhaps more important than I — I think it was my first point about the bad policy of a finding a doctor-patient relationship been in of itself as a fundamental interest is that as I think Your Honors are all aware, the doctor-patient privilege finds its expression in law in confidentialities provided for only in state laws, New York does provide for doctor-patient testimonial confidentiality.

Now, it was not known even at common law, and indeed there are many variations on this privilege and furthermore, commentators have criticized the privilege because many times it prevents courts from getting at the truth.

What it should be emphasized is that it is not necessary for medical treatment for there to be a confidential relationship between doctor and patient.

I think this case demonstrates that.

There are allegations or I would say the record shows the testimony of the patients, that they stopped using Schedule II because of the filing requirement.

Well, let us look at what happens.

A patient goes to the doctor, he tells the doctor what ails him, the doctor than makes a diagnosis and determines on a course of treatment, in its complete discretion or his decision, he may decide on a Schedule II drug, and it only at that point does he write a prescription, how I ask you had the practice of medicine been interfered with.

The practice of medicine has not been interfered with.

In the 30 years there is no record of it in California, the 15 years in Illinois, and I think about 10 or 12 years in Idaho with the same type of filing and reporting has been enforced.

Now, as we said, I said the problem of situation is doctor to doctor.

Now, as to patients what the purpose of the statute, the patients who gets from a doctor an over 30-day supply, now this would more probably be the abuse of the patient by the doctor.

Now, obviously we can still printout as we do, we could still printout prescriptions, anonymous prescriptions — there is anonymous list of patients that contain over 30-day supply which is a violation of the law.

However, what we can not know is, is this one person receiving the multiple prescriptions from the same doctor or what?

All we can do now is get a list of perhaps a hundred, a thousand of these types of prescriptions to come through each month and send out investigators back to the drugstore to find out who was the patient to find out which are the most serious cases of abuse.

It is absolutely impossible to do with 24 investigators in the whole State of New York.

Does New York law prohibit the prescribing of a more than 30 day supply of schedule II drugs?

A. Seth Greenwald:

Yes, as quite specifically under the Triplicate Prescription Law, a doctor is limited to prescribing a 30-day supply with several exceptions, I believe, some of the drugs with children, I think I believe the Ritalin they maybe able to prescribe the 3-month supply, but basically there is a limitation of a 30-day supply.

In point of fact the exception for I think 3-month would depend on knowing the age which we are trying to be reported and the drug and the patient, for example, to know whether that was being complied with.

Now, another point or another purpose is that basically filing a triplicate prescription with patient names heightens the doctor’s awareness to the status of his patients.

There is of course, and it was said — well defense lawyer has no application to addicts, which is true, in the sense that the law prohibits prescribing this type of Schedule II dangerous drugs to addicts and the habitual users.

But how are we going to know whether that is being complied with unless we know or have some record of who are receiving them.

Another major problem I would submit is, if the names and addresses are missing from the filed prescriptions, a doctor could prescribe for himself with little danger of detection.

He could use false names, his own name, whatever name he feels like.

He could make sure it is within under 30-day supply because he has these matters.

I would also say, and it is rather obvious from your own cases I think the Moore case which I am not acquainted with that there are unscrupulous doctors and pharmacists who are basically dispenses a drug at will.

Now and finally you have the question of forgery.

Now it is true the computer cannot in and of itself identify a name as a forgery but, and this is of course I think which cases have come up.

Usually forgeries when you have a forgery, the person who is using a false name does it in a rather large amount, just like when you print up counterfeit money you do it in the amount to make it worthwhile, and normally because it is a false name it is a same name.

Now, if we do not know the name there is no way to, say, send out the alert that someone using the name of such and such is active in your area, if you get a prescription in that name.

A. Seth Greenwald:

This alert can be sent out to the druggists.

You are talking about the forging of a registered doctor’s name or the forging of nonexistent doctor.

A. Seth Greenwald:

It could be either way.

It could be possibly in the true name of the patient and with a forged doctor’s signature or to be a false name with a true doctor’s signature.

It could be any number of things.

The point is there are complex variations.

Thurgood Marshall:

It is also true as you said you only have 20 people who would do all of it.

A. Seth Greenwald:

Well I think and the point is —

Thurgood Marshall:

Yeah I am forgetting anything.

A. Seth Greenwald:

Not certainly.

That sums to the question that the District Court seemed to consider the fact that because we had not gotten enough results here that somehow it then became unconstitutional that if we had a good record of results in this area if we produce enough cases defenders would become constitutional.

I submit that this is not the test of constitutionality that this Court has clearly stated the case in other similar situations such as I think the Danforth case that the filing or reporting requirement is reasonably directed to the preservation of health.

I submit that this type of filing requirement clearly is so related.

Now, I also want to take up very briefly.

My time has almost expired.

That filing clearly does not interfere with the doctor-patient relationship, and I submit that the doctor-patient relationship is not constitutionally protected.

Is there a doctor-patient privilege in New York?

A. Seth Greenwald:

Yes, there is but for purposes of the statute as it is right in the law and I cited in my brief, it is not applicable in this case.

But is that a statutory privilege?

A. Seth Greenwald:

It is statutory privilege as it is —

Or there is any other operative in a criminal proceeding, may the doctor be called to prove the case against a patient which involves revealing of medical information?

A. Seth Greenwald:

We do have, and I wish to emphasize the court below ignored our confidentiality provision in this law.

Well, I know but how about the answer of my question?

A. Seth Greenwald:

The answer is that in a court to the criminal investigation under 3371, patient’s identity can only be revealed pursuant to court’s orders subpoena.

It is available if, and I give the example in my —

Well, if the patient is invaded for drug trafficking, can you call a doctor for example and making testify against him as he has relevant evidence from his records?

A. Seth Greenwald:

I would question whether this is the direct enforcement and I wish to emphasize that that is not — it is not an answer to your question truly but once —

But you do not know what the answer is.

A. Seth Greenwald:

I really perhaps do not know what is the answer is because it is not involved in this case.

These appellees the plaintiffs here —

But you argue that if you lose this case on unconstitutional grounds there will be a constitutional doctor-patient privilege.

A. Seth Greenwald:

Oh, well that I think it is quite clear that an affirmance of the judgment below will establish a constitutionally protected doctor-patient privilege.

The District Court clearly found such a privilege from its reading of the abortion in Roe and Doe cases.

I believe that those decisions did know such thing that it was a misreading of those decisions, but I think that – and as I have emphasized – that it would be improper to so do, there are valid policy reasons not to and I do not think that had been at all answered by my adversary.

This Court also has declined in any number faith just as last term to extend any right of privacy, such as or I would say going back one last term but in the Planned Parenthood of Missouri v. Danforth, even in abortion context reporting abortions with names and dresses would not violate a patient’s privacy.

California Bankers Association v. Shultz, no violation of right of privacy in reporting bank records.

Perhaps the most obvious one is that income tax reporting is well-known and many people some expectation of privacy in that area, but for the operation of income tax laws and/or I submit also a drug control program, you have to have these reports, and it does not make any difference, whether the statute is been properly administered.

If we had never computerized one prescription, this law would have a purpose, computerization is not necessary to the operation of the law.

Computer is not an unconstitutional machine, there is a specter here.

Now, the specter in this case is whether, is the fear of unauthorized disclosure.

Now, the appellees, the patients here were totally ignorant of this law, what it really was.

They have thought that their record is going to be available to the police, to the army, to the Bar Association, that they were going to be maintained for ever and ever, and that is simply was not and is not the case.

And a fear of hypothetical stigmatization has never been held to state a course of action.

Only this past term, this Court held in Paul v. Davis that even if, what they fear, these appellees fear, disclosure of their drug records actually had occurred, there would not be any invasion of any of a federally protected right.

Indeed, their protection comes from the very statute they are attacking, Section 3371.

At this point I would want to reserve my few minutes remaining for rebuttal if necessary.

Warren E. Burger:

Very well.

Mr. Lesch.

Michael Lesch:

Mr. Chief Justice and may it please the Court.

Perhaps I should state the issue in this case as I understand it.

The judgments of the court below enjoined enforcement and declared unconstitutional this statute in so far as it required disclosure to the State of New York of the identity of patients receiving Schedule II drugs.

Now, Mr. Greenwald just referred to the Danforth case in which this Court upheld record keeping requirements, but yesterday I had the opportunity to look in the library of the Supreme Court and to look at the forms that were actually required by the State of Missouri in the Danforth case, and those forms specifically said that they did not want the patients’ name, all they wanted was the patients’ number.

So that if the State of Missouri was interested in statistical information related to a particular patient and they wanted more information about that patient.

They could then go back and get the name, but there was nothing on file in the State of Missouri.

There was no computer printout of all the names of people who had had abortions.

William H. Rehnquist:

Well, Mr. Lesch, did you challenge or do you now question the constitutionality of the record keeping requirement that a physician who prescribed these drugs, keep those records or in his office and that those records to be opened to inspection by the State of New York?

Michael Lesch:

No, Your Honor, we are not challenging that here today.

William H. Rehnquist:

You concede that.

Michael Lesch:

No, we do not concede it either, but we do not think that that point has to be reached.

William H. Rehnquist:

Well, then all of your constitutionally boils down towards that if that is made easier through modern technology for the State of New York to enforce this law, there is the constitutional difference.

Michael Lesch:

There is the constitutional difference.

It is our position, when the state of New York obtains 125,000 prescriptions per month through a massive computerization and record collection system, 2.5 million prescriptions over a period of the year and it turns out that they have two suspects in that system, one of them it turns out is exonerate and the other one is unresolved at the time of trials, the whole system —

William H. Rehnquist:

Now, wait a minute, wait a minute Mr. Lesch, you cannot that just as be taken into evidence the system is working very well that it is in fact deterring views of the things.

Michael Lesch:

If the system — well, but the same thing happened before Your Honor.

There is nothing in the legislative history, there are no statistics that this type of system is necessary, triplicate prescription are phantasm or specter or an unsupported theory that Mr. Greenwald and the Department of Health have found in this case.

For example, Mr. Greenwald gave a lot of hypothetical situations to the whole court today, none of them are supported in this record.

They had Mr. Cannizaro (ph) testified who was the head of their system, they had Mr. Belize (ph) testified, then we have the whole legislative history as part of the record before this Court, no one has ever suggested that the so-called doctor to doctor problem is really a problem.

Yeah, that was on that basis that they went to the Court of Appeals and the Court of Appeals sent the case back to trial.

The principle argument that they made was that there was a doctor to doctor problem here namely that patients using the same name would go to more than one doctor in order to obtain the elicit supplies of these drugs.

But that problem turned out to be nonexistent and it is against that fact that thousands of names of patients are being put on a computer as to which there is instant access.

So, anybody who is authorized and the statute provides for interdepartmental transfer of this information can obtain that information.

Moreover, the record is also uncontradicted Mr. Justice Rehnquist that the security system for this program is entirely inadequate.

There was one witness in this case, a man by the name of Wasserman (ph).

He was an expert on security, he pointed out defect after defect after defect in this system, by the way the —

William H. Rehnquist:

Well, wait a minute, this is your constitutional argument than turn not on the fact that you have to turn — the doctor has to turn the records over to authorized New York personnel, but on the further fact that there maybe leakage to unauthorized persons.

Michael Lesch:

Our constitutional argument turns on the basic right of privacy that when you have here, first of all a relationship that has been historically recognized, for example, by the existence of the physician-patient privilege.

But there is nothing in the constitution about that.

Michael Lesch:

There is nothing in the Constitution —

That is a matter of state law, state evidence law.

Michael Lesch:

That is quite right, but there is something in the Constitution as this Court has found in Roe v. Wade and Doe v. Bolton that there are certain attributes of that relationship that deserve protection.

You would find the same thought with reporting of gunshot wounds.

Michael Lesch:

No, I do not Your Honor, I think that is entirely different case.

I am not reporting of contagious and venereal disease.

Michael Lesch:

Absolutely not, that is entirely different because in the reporting of gunshot wounds or in the reporting of contagious diseases, there is the compelling state interest, there is the legitimate interest of the state.

If somebody shoots somebody else, the state ought to take actions and the state ought to find out about a gunshot wound as quickly as it can, but if someone is —

It invades a certain amount of privacy, does not it?

Michael Lesch:

It invades a certain amount of privacy.

In Doe v. Bolton and Roe v. Wade this Court did not hold that there is an absolute right of privacy.

It only referred to the first trimesters the right to make the abortion decision.

We are not saying that the right of privacy is absolute in any sense, but we are saying that the court looks at the relationship, looks at the doctor’s right to prescribe and there is testimony in this case, for example, by a psychiatrist, that he would not prescribe Schedule II drugs to patients of his because he would have to tell them about the filing requirement.

Why is that any more significant than — there are some doctors who will not perform abortions since that is a personal scruple on the part of the doctor.

Michael Lesch:

No, it is more than that I believe Your Honor because in Roe v. Wade and Doe v. Bolton, this Court talked about the right to practice medicine unhindered by non-medical considerations.

It is a non-medical consideration, we urge as to what the effect of the filing requirement will be on the future help of the patients.

That should not be what goes into the doctor’s mind when he decide, is this drug necessary for my treatment to this patient.

It ought to be simply what is the patient’s medical history and what will the affect of this drug be on the patient.

This Court has held that there are other ways to monitor doctors; there are licensing requirements.

The state, for example, can on the prescriptions, we are not challenging this, the state can require the doctors to file all of their prescriptions with the doctor’s name on it.

The only thing that we object to and that is why I restated the issue at the beginning of my argument is the patient’s name.

So, in the case that you mentioned Mr. Chief Justice before, the Moore case, if a physician is giving is out a large number of prescriptions of Schedule II drugs, the Department of Health can go to that physician and ask him to see the patient records and check upon the bona fides of every one of those of things but what we were doing —

Did you say in the colloquy with our brother Rehnquist that you would or would not concede the State could require the patient to gave his name to the doctor?

Michael Lesch:

The patient to ho give —

— who is getting the prescription?

Michael Lesch:

Whether the State could require the patient to give his to the doctor.

To the doctor, and there is no further requirement reported to the State.

Michael Lesch:

Oh, I have no problem with the State giving — the patient giving his own name to the physician.

Or the State is requiring the physician to keep a record of the patient’s name.

Michael Lesch:

I have no problem with the State requiring the physician to keep name.

So, that if sometimes if there were probable cause to suspect something, you could subpoena the records.

Michael Lesch:

Exactly.

You would not see anything wrong with that?

Michael Lesch:

No, I would not because there you have —

What about showing the doctor before a grand jury?

Michael Lesch:

I would see nothing wrong for calling a doctor before grand jury.

And ask him, tell me the names of the patients to whom you prescribe Title II drugs in the last year?

Michael Lesch:

Yes, and there is the basic distinction between that case and the case we have, and that is that that case provides re-invocation of the judicial process which the two concurring justices in the —

But you need know probable cause to call him before the grand jury.

Michael Lesch:

You need no probable cause but you do have a District Court Judge supervising the conduct of the grand jury proceeding.

Well, supervising — you can claim the privilege against self-incrimination but that is not the questions here.

Michael Lesch:

No, if he claims on behalf of his patient, the doctor-patient privilege — and it is determined by the District Court Judge that the question that are being asked to that doctor are simply a fishing expedition, he want be required to ask that —

Well, but that is the question of the State law whether he can claim the doctor-patient privilege.

Certainly, there is no federal doctor patient privilege that one can claim before a grand jury.

Michael Lesch:

Well, to the extent that there is — to the extent that we are talking about that, and I would obtain in the State Court proceedings.

So, what is the difference between calling it before a grand jury and inspecting his records?

Michael Lesch:

If there is a right of privacy that a patient and a physician — that a patient has and that a physician can protect then a court can supervise the exercise of that right of privacy during grand jury testimony or during demands for…

Oh then you are saying in response to Justice White that he be called before a grand jury but if he is asked to disclose the names of his patients, he then asserts this District Court decision.

Michael Lesch:

If in fact he has reason to believe that this is a fishing expedition or there is no basis for such a request, he can do so, but that is not —

But you are saying that is just like any witness before a grand jury, you would not be saying that this would be special to the doctor.

Michael Lesch:

I am not saying that.

Yes that — excuse me, Your Honor is correct, this is what I am saying.

If the normal rule would apply, whatever it is?

Michael Lesch:

The normal rule would apply, but you would have the opportunity for judicial intervention, and that is what we do not have in this case.

Well, can New York may witnesses before a grand jury to find the answer of question on the grounds of some fishing expedition or are they limited to the Fifth Amendment.

Michael Lesch:

Your Honor I cannot answer that, I think that if —

Have you rather heard of a state that allows a witness to —

Michael Lesch:

If a warrant is insufficiently specific, if a request for information is overly general then I think the objection to the request for information can be made that it is a fishing expedition.

We do not need a warrant — examine own for a grand jury, all you need is a subpoena.

Michael Lesch:

Your Honor I was talking about a request for information to a physician by way of want or subpoena.

Thurgood Marshall:

But Mr. Jaffe your point I understand is —

Michael Lesch:

I am Mr. Lesch Your Honor.

Thurgood Marshall:

Oh, that is right.

I understand your point is that whatever position the doctor makes a judge will decide it.

Michael Lesch:

Exactly, exactly.

Thurgood Marshall:

Whether it is — if it is a fishing or whatever it is, it will be judge who decide it.

Michael Lesch:

That is the only point that I am trying to make here.

Whereas here we have the collection of millions of prescriptions without any opportunity for a judge to decide anything, and absolutely no need shown either before the statute was enacted or since it has been enacted that these had any effect whatsoever.

We have 31 persons who are operating this system and have access to the information, we have exactly two suspects in the 20-month that the system was operated, and in that time one of them was discharged and the other was left on result.

Well, I think you are not suggesting that if you win this case then there will an established, a constitutional privilege which would permit a patient to object to his doctor testifying against him.

Michael Lesch:

No, constitutional privilege, what I am saying though is —

In a criminal case.

Michael Lesch:

That has nothing to do with this case as far as I am concerned.

Michael Lesch:

I am not saying that it is impossible that this Court will some day decide that certain aspects of the physician-patient relationship are privileged, for example a psycho analyst —

But the rule you are contending for you do not suggest would determine that question.

Michael Lesch:

Absolutely not, it certainly would not, that is a question for another day.

As the question is relating to gunshot wounds which is the much simpler case, as said before I have no problem with that or the reporting of venereal diseases.

But you are contending for generalized constitutional right of privacy which in Court’s opinion in Katz v. United State said that did not exist.

Michael Lesch:

Well following the Katz case, this case decide Doe, Roe, it also decided the case of Buckley v. Valeo.

In all of those cases that Court recognized that privacy is a constitutionally protected right.

Now, I am not saying that it is a generalized right of privacy.

What I am referring to here is the right of a physician to practice medicine which is well within the confines of this Court’s prior decision, the right of a patient to receive advice untrammeled by non-medical consideration which is also well within this Court’s prior decision.

I am not saying that every aspects of privacy is constitutionally protected, but I am saying when you have the peculiar situation of first of all the physician-patient relationship and secondly you have the effect on the practice of medicine by the physician and thirdly you have the total lack of any necessity for the disclosure of millions of names of highly personal information of the State, but under these circumstances the right of privacy also exists.

The Court in Poe v. Ullman talked about the right of privacy being a rational continual, and I believe that this case is a rational continuation.

Ullman, dismissed the writ as improvidently granted, didn’t it?

Michael Lesch:

I was referring to the concurring opinion in that case which was quoted by Judge Friendly (ph) in the court below.

Dissenting opinion, I think it was.

Michael Lesch:

I think it was at that time but that was also before Doe and Roe Your Honor.

Did you say Judge Friendly I did not observe Judge Friendly is —

Michael Lesch:

Well, there was a — Judge Friendly — originally this case was dismissed.

(Inaudible) but not in this present case.

Michael Lesch:

What happened in this case was originally Judge Carter dismissed the case for one of the substantial federal questions and then went opt to the Circuit Court of Appeals and Judge Friendly instituted a temporary restraining order or continued the one the Judge Carter granted in effect held that there was substantial federal question and quoted the Poe v. Ullman case.

He then sent it back down for arguments on the preliminary injunction motion and it was only after we have established in the record in this case all of the facts that I am talking about now, but then the case came up to this Court with a full record where it is shown that there is no need for this system.

I believe we have also shown that the Federal Drug Abuse Prevention and Control Act has no triplicate prescription provisions Uniform Controlled Substances Act has no triplicate prescription, Provision 39 says that the Union has no such provision.

This Court has often held that where so many other states have no triplicate prescription or have no comparable provision in their statute that is also an indication that those provisions are unnecessary.

The fact is in this case that there has not been a scintilla of evidence and Mr. Greenwald for the State has not pointed too a scintilla of evidence that there was any need whatsoever for the patients’ names.

If there were some showing of need as there is not in this at that point the State may well condition use of a more effective mean which involves the danger to constitutionally protected privacy on the taking of all reasonable precautions which limit the risk.

So that is the point where the adequacy of the State Security System comes into place Justice Rehnquist in response to your prior question, but we do not reach to that point in this case and the Three-Judge Court did not reach it in this case because there was absolutely no showing.

Warren E. Burger:

You are now on Mr. Jaffe’s time.

Michael Lesch:

In that case I would withdraw.

Thank you very much.

Warren E. Burger:

Mr. Jaffe.

H. Miles Jaffe:

Mr. Chief Justice and may it please the Court.

H. Miles Jaffe:

If I could go back to Mr. Justice Rehnquist’s question, we do admit that it is the difference in the extent and intrusiveness of the system that is the heart of this case, and the case really does not take off from the concurring opinion of Mr. Justice Powell in the Shultz case, where he says “At some point governmental intrusion upon these areas would implicate legitimate expectations of privacy.”

The key to this case is that unlike the decisions in Danforth or in Shultz where the reporting was not systematic and in fact was not properly challenged or as in the American Physicians case which was affirmed by this Court in the last term but not heard by this Court.

There is systematic reporting here of the names of literally hundreds and thousands of patients.

It is our belief, there comes a point at which the demand of the state for systematic reporting of absolutely innocent conduct becomes offensive, and in fact the intrusiveness of the conduct was seen at trial, because as Mr. Lesch’s comment this case went up and down, originally Judge Carter thought there was not substantial federal question.

It was reversed by the Second Circuit.

It came back down.

We asked for a temporary injunction and the Court said, no you have not shown us any real injury, but when we finally got to trial the witnesses who testified, testified to substantial intrusion into the doctor-patient relationship which is a part of this case.

It is the intimacy of the information that government is seeking part of the doctor-patient relationship.

Witnesses testified — these witnesses it is true were innocent of past practices but they testified that the thought of having the State have all this information made them very uneasy or a doctor testified that he would not prescribe for his schizophrenic in one case.

I think that is Page 169 in record Dr. Bernice’s testimony, he would not prescribe for his schizophrenic patient these drugs because as all the other doctors testified, he felt he was required to inform the patient that the system existed and him name would be forward to Albany.

He then felt that he is so informed this schizophrenic that would upset the very treatment which he in fact intended to prescribe for the schizophrenic.

So, here we are asking the Court to address itself to the questions which were not raised in Danforth or Miller where there was investigation.

But the question where there is in effect the Dragnet before and not in investigation afterward and that is the distinction.

It is fine for the State to investigate and we are for it and we do not believe that drug abuse is a good thing we can say it is a bad thing.

Now, we think doctors should have to report and we do think that doctors should in fact — the computer can print out exactly what the doctor’s uses.

That is to say if one doctor is prescribing hundreds of thousands of pills a month that whatever would be the right, a quantum.

You can then go and investigate that doctor and the doctor is requiring a statute, and we do not objected it, the doctor is requiring the statute to keep those records and then when the State goes and conducts the investigation.

But now the State does not need probable cause under the preexisting system to go and inspect the doctor’s records.

H. Miles Jaffe:

And does not here, and that is not challenged in this case.

What is challenged in this case is the centralization and the data processing implications that are taking place.

In this case whether it be medical information, the next we will have is income, in the Valeo case we have political contributions for which a reason was found there which we think was compelling.

The difference here is that the State’s showing is totally inadequate.

We may, the next case we may get is the filing of first of all fingerprints which is true, if we ask any single citizen to come forward at anytime we could probably get his fingerprints.

It is a systematic, dragnet, prior to any criminal conduct.

We have totally innocent patients here who are compelled to be part of the system.

No one goes to get a Schedule II drug because he wants to be happy about it.

He is a patient and he is presumably sick.

Will you compel that be a part of the system when you are born, in most states, because of the birth certificate filed and forwarded to the state registrar statistics.

Exactly we would say to the Court there should be limits on the degree to which a state can then start cataloging every activity.

H. Miles Jaffe:

But why not draw the line before that.

H. Miles Jaffe:

Why not say no registration of birth certificate?

Because the registration of birth certificate has a clear need.

Then you are saying that in every one of these cases where the state does not require any kind of data the state have to show a compelling interest or a clear need or something like that.

H. Miles Jaffe:

Your Honor, that is not as hard as Your Honor makes it sound.

In fact, usually the states can show a very clear reason for spending millions of dollars taking in 125,000 prescriptions per month, and in fact the need in the gunshot case and the need in the venereal disease those needs are clear.

But that comes at times when we’re dealing with medical records, when the need — and in this case we get to that point.

This case was a tried, this case does not come on a motion to dismiss, does not come up on summary judgment.

It comes up after three judges, originally rather skeptical, heard the testimony of these patients and what they said was, in a year or twenty months that this system was in effect, we had one case in which there is a suspect.

There has not been any showing that this system has acted as a deterrent.

We have no showing at all of any need here and what we preserve as we rule against the name requirement we preserve it is the most comprehensive system of regulation of any drug regulation in the country, namely everything must be filled on, on a New York State Form, it must include —

Mr. Jaffe, let me just ask one question that is running through my mind.

If you look at it from the point of view of the individual whose privacy is being invaded because his name is being put in a file at some place.

Does it matter to him whether somebody wants to find out whether he is taking these drugs or not?

Whether the person trying to find out goes to the corner pharmacist and says they have any information about this man or if he goes to Albany?

H. Miles Jaffe:

Yes, I mean there is —

I mean presumably he would patronize the local drugstore I suppose.

H. Miles Jaffe:

Sure, it does make a difference, because most people recognize this point as the possibility of use.

If the in fact information is centralized within the control of the government.

It is unconstitutional.

Well, I suppose the individuals concern only right is when he is under investigation.

H. Miles Jaffe:

No, in other words he is worried about the fact that he takes a dangerous drug and he says while I may run for office next year, and the Governor in the state in fact can simply push the button on the computer and find out, among other things, who my business associates are because we have a list of those people and who my drugs are because we have list of those people.

In other words that this Court would not find —

Well, couldn’t the Governor go to the corner pharmacy and that a look and he will find the drugs there?

H. Miles Jaffe:

Well, yes the Governor could carry out an extensive investigation.

Well, he is just investigating one person by your hypothesis, and the information is available either in Albany or in the local pharmacy.

H. Miles Jaffe:

Yes, but the facility here — it is true that —

It is easier to go to Albany than it is to go to corner drug shop.

H. Miles Jaffe:

It is easier to push the computer button and find out where all of our citizens have been and what all our citizens do and who their associations are and who their political contributions are and so forth and so on.

But are we going to answer the state to make a collection of political contribution without a showing that in fact there is a reason to that.

And to income tax, federal income tax returns are supposed to be of the utmost secret category of the privacy and yet we know it is a practical matter that they are leaked especially in recent years.

Now, would you regard that as a flow in it?

H. Miles Jaffe:

That would be exactly on point Your Honor.

I would say if that if Federal Income Tax will not necessary then we should not have the forms.

We all know it is necessary and therefore we do not object it.

But don’t you think self-control is necessary?

H. Miles Jaffe:

Yes I do, but here we have a showing after trial which is the difference in this case that the State has gotten literally nothing after trial, shown nothing as the (Inaudible), and we say as Mr. Justice Powell implicated into the Shultz case, there comes a point when the material turned up by a system which includes hundreds of thousands of prescriptions per month almost when it is going too far, and as Your Honor points out where you find any immediate need as in the income tax area.

We would then uphold the system, where for example, you might even fill in the income tax place you went too far as in requiring everybody to report every check that he has and it is true that the IRS could get every check.

But we would still not want the government to have a record of every check, and checks or less personal if one looks at most than are the medical records of people here.

Interestingly in the Danforth case, in the Shultz case and in the Association of American Physicians, none of the regulations required the centralized reporting of names.

Thus the statute of Danforth does not require the central reporting, and the regulations do not include on the form the name.

That is the distinction that we called to the Court’s attention an urge, and we urge the Court to examine carefully the findings of the lower court and their narrowness perhaps not the language but the narrowness of that point, which said where there is no product from the system and where the system is requiring the massive centralization there we think that the diminution of constitutionally protected right is too great.

Or put otherwise, when you have regulation of this sort precision must be touched up.

Thank you.

Warren E. Burger:

Thank you Mr. Jaffe.

Do you have anything further Mr. Greenwald?

A. Seth Greenwald:

Well I would, Your Honor.

Warren E. Burger:

You have a couple of minutes.

A. Seth Greenwald:

Yes, I think I did reserve a couple of minutes and I wish to emphasize that the counsel for the Roe appellees stated that into departmental communication it allowed under the statute.

That is basically erroneous.

The confidentiality provision in this law once again ignored, but District Court provides that patient identity is only available to the Department of Health to investigate as people who are responsible for the enforcement of Article 33 or other agencies that license people who deal in these controlled substances.

But the example given by the Attorney for the patient appellees about the Governor getting information is absolute nonsense.

The Governor would be violating the law if he went to get this information, and I think I can fairly state that under this law the Commissioner of Health who I admitted to the point the Governor, has a legal duty and a legal right to sell the Governor — this again happened once again a hypothetical — to get out of his office, and of course, all this is in the height of hypothesis.

Now, I also would like to emphasize that the confidentiality provision here is one of the most carefully drawn I think under analysis, and when you speak about income tax record, indeed the reason you speak, you find leaks perhaps of income tax record is, that the law allows those records that he provided to any government official.

This is not the case in the operation of our filing triplicate prescriptions.

There is also this factor of lack of results, claim of one or two in 20 months of operation.

In point of fact and I think I have found it in the record.

In point of fact we did not have the capability of printing out patient names, of extracting patient names from the computer until about roughly August, 1974 and there was a trial in December.

I think it is irrelevant to the constitutionality of this Section whether we have got one report, 50 reports, or 150 reports, but basically you had a system in its infancy.

There are of certain priorities in the Department Of Health.

Constitutionality of a statute on its face – and that is what we are involved here — can not depend on the efficiency of proper operation by the appellant.

A. Seth Greenwald:

Indeed, as I have cited in my Reply Brief, if there had been a preliminary injunction, let us say, for example grants against this system and there was one for about four or five or six months, you would have no results to discuss.

It is rather obvious that the constitutionality of this statute depends on whether it is reasonably directed to accomplishing its purpose the discussion —

Thurgood Marshall:

Mr. Greenwald, if we could find a way to send this case back, then what do you think as (Inaudible) New York is, they might forget about it?

A. Seth Greenwald:

I would submit that there is no necessity.

I do not think there is any necessity to send this case back.

It has been mentioned by the amici curiae brief, because it is rather obvious that the record in later months showed we were getting all types of reports.

But I submit that that is a totally erroneous test of constitutionality.

That would mean that in California if they got proper results or results to impress District Court Judge is constitutional in California.

If in Idaho they might get only ten because small (Inaudible) no need.

Warren E. Burger:

I think you have answered the question of counsel.

A. Seth Greenwald:

Thank you.