Protecting Privacy Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records
Protecting Privac y Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records
Jessica C. Wilson 0 1
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1 Jessica C. Wilson, Protecting Privacy Absent a Constitutional Right: A Plausible Solution to Safeguarding Medical Records , 85 Wash. U. L. Rev. 653 (2007). Available at:
1. New York City officials now identify diabetes as an epidemic because more than one in eight
New Yorkers suffers from the disease. “Diabetes is the only major disease in the city that is growing,
both in the number of new cases and the number of people it kills.” N. R. Kleinfield, Diabetes and Its
Awful Toll Quietly Emerge as a Crisis, N.Y. TIMES, Jan.
, at A1.
2. There are multiple types of diabetes; however, Types I and II are the most common. Type I
diabetes occurs when the body destroys the cells that produce insulin in the pancreas. Id. Without
insulin, the body cannot control its blood sugar levels. Type I diabetes is very serious and is typically
diagnosed at a young age. American Diabetes Association, Type I Diabetes, http://www.diabetes.org/
type-1-diabetes.jsp (last visited Nov. 8, 2007). Type II diabetes occurs when the body develops a
resistance to insulin. American Diabetes Association, Type 2 Diabetes,
http://www.diabetes.org/type2-diabetes.jsp (last visited Nov. 8, 2007). Typically, Type II diabetes occurs later in life and may be
prevented by changes in diet and exercise. Kleinfield, supra note 1. Type II diabetes accounts for
ninety to ninety-five percent of all diabetes cases. Id.
3. American Diabetes Association, All About Diabetes,
http://www.diabetes.org/aboutdiabetes.jsp (last visited Nov. 8, 2007).
4. See Rob Stein, New York City Starts to Monitor Diabetics, WASH. POST, Jan.
5. Id. DOHMH’s purported goals of the two-part program are surveillance and evaluation,
environmental modification, policy development and regulation, direct provision and monitoring of
clinical care, and health education. LYNN D. SILVER & DIANA K. BERGER, IMPROVING DIABETES
CARE FOR ALL NEW YORKERS 19,
http://www.nyc.gov/html/doh/downloads/pdf/diabetes/diabetespresentation-a1c-registry.pdf. For a detailed discussion of DOHMH’s program, see Amy L. Fairchild
& Ava Alkon, Back to the Future? Diabetes, HIV, and the Boundaries of Public Health, 32 J. HEALTH
POL. POL’Y & L. 561 (2007).
6. Stein, supra note 4. See also Harold Edgar & Hazel Sandomire, Medical Privacy Issues in
the Age of AIDS: Legislative Options, 16 AM. J.L. & MED. 155, 164 (1990).
health programs, DOHMH has expanded its notion of public health and
the government’s role in disease monitoring and control.
New York City’s diabetes program has two components: a registry and
a pilot intervention program.7 The registry component, known as the New
York City A1C Registry (NYCAR), requires all 120 of New York City’s
medical testing laboratories to report the results of A1C blood tests8 to
DOHMH.9 Diabetic patients undergo A1C blood tests every three to six
months during regularly scheduled medical appointments.10 Along with
each patient’s A1C blood test results, medical laboratories report to
DOHMH each patient’s full name, date of birth, the name and address of
the patient’s physician, the address where the A1C test was conducted, and
the date the test results became available.11 DOHMH officials use this
information to survey, map, and describe the emerging diabetes
epidemic.12 Individual patients with poor A1C blood test results13 receive
a letter notifying them of their test results along with resource material
The second component of the program utilizes the NYCAR registry to
proactively influence the treatment of diabetes patients.15 In a pilot
intervention program16 restricted solely to the South Bronx, city officials
use the confidential information obtained through the registry to directly
contact diabetes patients and their physicians.17 In addition to receiving a
nonconsensual initial letter sent by the registry, individual patients are also
contacted periodically by telephone to discuss their A1C blood test results
and how to manage their diabetes.18 The caller contacting them is not a
physician, but rather a government official.19 Patients may opt out of the
program after the initial contact by filling out a “Do Not Contact” form.20
A separate government caller also contacts the patients’ physicians to
discuss the patients’ A1C blood test results and suggest recommendations
for treatment.21 If the South Bronx program proves successful,22 then
DOHMH hopes to extend the program to all of New York City.23
New York City’s revolutionary diabetes program, and in particular the
pilot intervention program, raises serious privacy concerns.24 These
privacy concerns include the government’s access to and accumulation of
personal information, the ability of the government caller to influence a
patient’s decision to seek medical treatment without first speaking with his
physician, the potential impact on the patient’s health insurance and
employment should the information be released, the government’s
infiltration of the physician’s traditional role as caregiver, and the general
concern that the government may seek more regulation in this area over
time.25 Furthermore, many of the policy concerns traditionally used to
justify public health surveillance and control programs, such as
transmission prevention,26 are inapplicable to this program because
diabetes is not communicable and therefore poses a different type of
and the opt-out “Do Not Contact” form, which must be completed and returned by the patient in order
to take full effect. Id. Accord Diabetes Prevention and Control, supra note 7.
19. SILVER & BERGER, supra note 5.
20. Diabetes Prevention and Control, supra note 7. The “Do Not Contact” consent form has been
criticized because most patients are not made aware of it, nor do they have access to the technology
necessary to complete the form online. Elizabeth M. Whelan, Big Brother Will See You Now, NAT’L
REV. ONLINE, Apr. 25, 2006, http://nationalreview.com/comment/whelan200604250655.asp.
21. SILVER & BERGER, supra note 5, at 27. DOHMH provides each physician with a quarterly
report illustrating the A1C test results of their patients. Id. This report indicates when a patient’s A1C
blood test results reach over 8.0%. The report also makes best practice recommendations that the
physician is encouraged to follow. Id.
22. DOHMH has yet to explain what factors will be considered in determining whether the
program is a success.
23. Stein, supra note 4.
25. See Anita L. Allen-Castellitto, Understanding Privacy: The Basics, in 1 SEVENTH ANNUAL
INSTITUTE ON PRIVACY LAW: EVOLVING LAWS AND PRACTICES IN A SECURITY DRIVEN WORLD, at 23
(PLI Intellectual Property, Course Handbook Series No. G-865, 2006); Alison M. Jean, Note, Personal
Health and Medical Information: The Need for More Stringent Constitutional Privacy Protection, 37
SUFFOLK U. L. REV. 1151, 1161–63 (2004).
26. These policy reasons include preventing the risk of harm to others, protecting incompetent
persons, and preventing risk to self. LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY,
RESTRAINT 88–93 (2000). The only legitimate policy rationale for regulating diabetes is preventing
risk to self because, as a noncommunicable disease, diabetes cannot directly harm others. Preventing
risk to self, however, is a very controversial policy justification firmly rooted in paternalism. Id. at 90.
For this reason, the diabetes program differs greatly from AIDS and tuberculosis programs, which
target preventing transmission.
public health threat.27 For all of these reasons, the constitutionality of New
York City’s diabetes program may be called into question under privacy
protections guaranteed by the Fourteenth Amendment’s due process
Constitutional privacy protection in its current state, however, is
illequipped to deal with innovative privacy invasions,29 such as those created
by New York City’s diabetes program. This Note proposes a different way
to think about privacy protection in the context of increased government
access to, and use of, medical records.30 Part II of this Note describes the
history and current state of privacy protection provided by the Fourteenth
Amendment. It explains the Supreme Court’s recognition and treatment of
a constitutional right to confidentiality under the Fourteenth Amendment
and the subsequent interpretations of that right by the courts of appeals.
Part III offers an analysis of the split among the courts of appeals over
how to interpret and apply the constitutional right to confidentiality.
Finally, Part IV proposes that because the right to confidentiality offers
inconsistent and inadequate privacy protection, privacy tort law offers a
better solution for protecting medical records from improper government
Protecting privacy rights has been a concern of the American legal
system since its creation.31 The Bill of Rights was created to protect,
among other things, the privacy of American homes, private papers, and
freedom of association from government intrusion.32 Despite the common
belief that privacy is something the United States Constitution and our
form of government are meant to protect, no clear definition of privacy
exists in American law.33 In fact, a legal concept of privacy was not
formally introduced into American law until 1928, when Supreme Court
Justice Louis Brandeis asserted the existence of “the right to be let alone”
27. Because Type II diabetes can result from obesity and inactivity, New York City’s program
has the added effect of largely targeting obese populations. Kleinfield, supra note 1.
28. See infra Parts II & III. The Fourteenth Amendment states, “[N]or shall any State deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1.
29. See infra Part III.
30. See infra Part IV.
31. Allen-Castellitto, supra note 25, at 27.
33. Id. at 28. The word “privacy” does not appear in the Constitution and no legal definition of
privacy is universally accepted. Id.
in his famous dissent in Olmstead v. United States.34 It would take another
thirty-seven years for the Supreme Court to expound a theory of
constitutional privacy protection.35 The Court found that protection in the
Fourteenth Amendment’s guarantee of substantive due process.36
A. Whalen v. Roe: Recognizing a Constitutional Right to Confidentiality
Following a series of cases in which the Supreme Court held that the
Fourteenth Amendment’s substantive due process clause protects a
fundamental right to privacy in certain specific situations,37 the Court was
soon presented with the question of just how far it would extend that
fundamental right. In Whalen v. Roe,38 the Supreme Court considered
whether the State of New York could record and keep the names and
addresses of all persons who obtained legal prescriptions for Schedule II
drugs.39 The lawsuit, brought by several patients and their physicians,
alleged that the New York Controlled Substances Act of 1972 violated
both patients’ privacy and the doctor-patient relationship. The patients and
doctors argued that the Act would cause persons in need of Schedule II
34. 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (arguing that wiretapping of telephone
conversations does amount to an unwarranted search and seizure protected by the Fourth Amendment).
Much earlier in his career, Justice Brandeis espoused the concept of “the right to be let alone” in an
article titled “The Right to Privacy,” which he coauthored with Samuel D. Warren. See Samuel D.
Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). See also Daniel J.
Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1099–1102 (2002) (describing the conceptual
development of “the right to be let alone”).
35. The Supreme Court did so in Griswold v. Connecticut, wherein the Court concluded that a
fundamental right to privacy prohibits laws criminalizing birth control. 381 U.S. 479 (1965). Griswold
v. Connecticut was the first in a series of cases in which the Supreme Court asserted a substantive due
process right to privacy. Allen-Castellitto, supra note 25, at 30–31. In 1967, the Supreme Court
established a privacy right and equality interests in interracial marriage in Loving v. Virginia. 388 U.S.
1 (1967); see also Allen-Castellitto, supra note 25, at 31. In 1969, the Supreme Court acknowledged a
privacy right to personal use of pornography in the home. Stanley v. Georgia, 394 U.S. 557 (1969); see
also Allen-Castellitto, supra note 25, at 31. In 1973, the Supreme Court held that the fundamental right
to privacy prohibits categorical bans against abortion. Roe v. Wade, 410 U.S. 113 (1973); see also
Allen-Castellitto, supra note 25, at 31. Today, these fundamental rights have come to encompass the
autonomy branch of the right to privacy. See infra note 70.
36. See Griswold, 381 U.S. at 482–86 (recognizing constitutional protection afforded to certain
zones of privacy concerning fundamental rights); Allen-Castellitto, supra note 25, at 30.
37. See supra note 35.
38. 429 U.S. 589 (1977).
39. Id. at 591. Schedule II drugs are a class of drugs that includes opium, opium derivatives,
cocaine, methadone, amphetamines, and methaqualone. Id. at 593 n.8 (citing N.Y. Pub. Health Law
§ 3306 (McKinney, Supp. 1976–77)). These drugs have acceptable uses for certain diseases and
conditions, such as epilepsy, narcolepsy, and severe pain. Id. Schedule II drugs are considered the
most dangerous of all legitimate drugs. Id. at 593.
drugs to decline treatment, fearing misuse of the information and the
potential stigmatization of being identified and labeled as “drug addicts.”40
The New York Controlled Substances Act of 1972 required physicians
to prepare Schedule II drug prescriptions on an official triplicate form.41
One copy of the form was kept by the physician, one went to the
dispensing pharmacist, and the third copy was sent to the New York
Department of Health.42 Completed forms identified “the prescribing
physician; the dispensing pharmacy; the drug and dosage; and the name,
address, and age of the patient.”43
In its analysis of the case, the Supreme Court recognized two privacy
interests: “the individual interest in avoiding disclosure of personal
matters” and “the interest in independence in making certain kinds of
important decisions.”44 The latter interest was well recognized by previous
Supreme Court precedent; the former interest was not.45 Nonetheless, the
Court found both interests guaranteed by the Constitution.46 After
announcing this general principle, the Court next considered whether
either privacy interest was violated in the present case.47
The Supreme Court described the interest in nondisclosure of personal
matters as “a genuine concern that the information will become publicly
known and that it will adversely affect [patients’] reputations.”48 The
Court acknowledged that, out of fear of disclosure, some patients might be
reluctant to seek medical treatment or use the Schedule II drugs prescribed
for them.49 Indeed, the patients argued that this fear adversely impacted
vital decisions they made about their health.50
Despite recognizing that the Health Department’s privacy invasion may
lead some patients not to seek treatment,51 the Supreme Court held that the
New York Controlled Substances Act violated neither “the individual
interest in avoiding disclosure of personal matters” nor “the interest in
independence in making certain kinds of important decisions.”52 Because
the record did not support a finding that the information sent to the New
York Department of Health would be disclosed,53 the Court saw no
immediate or potential impact on the reputation of the patients.54
Furthermore, the Court declined to find a violation of the patients’ liberty
interest because the State had not entirely prohibited the use of Schedule II
drugs.55 The Court also rejected the argument that the Act violated the
doctor-patient relationship because the doctors’ actions were not altered in
Recognizing the gravity of its decision, the Court closed with a final
We are not unaware of the threat to privacy implicit in the
accumulation of vast amounts of personal information in
computerized data banks or other massive government files . . . .
51. Id. at 602.
52. Id. at 599–600.
53. As part of its analysis of the potential threat of disclosure, the Supreme Court identified three
ways in which public disclosure of patient information could come about: 1) failure of the Department
of Health to maintain security, 2) the information could be made available as evidence in a judicial
proceeding, or 3) a doctor, pharmacist, or the patient may voluntarily reveal information on the
prescription form. Id. at 600. The Court found sufficient evidence in the record to dispose of these
concerns. Id. at 601. For example, the Act provided for security measures to be taken by the
Department of Health. Id. at 593–94. Such security measures included locking the forms in a receiving
room surrounded by a locked wire fence and protecting them with an alarm system. Id. As an aside,
regarding the third option, it is interesting to note that the Supreme Court did not include in its analysis
the possibility that an official or employee of the Department of Health may voluntarily reveal the
information on a patient’s prescription form.
54. The Court relied on two portions of the record to reach this conclusion. Id. at 602–03. One,
the Court noted that the disclosures required by the Act were not meaningfully distinguishable from
other disclosures of private medical information already pervasive in society. Id. at 602. Two, prior to
the district court’s issuance of an injunction against the Act, around 100,000 Schedule II prescriptions
were being filled per month. Id. at 603. This indicated to the Court that “the statute did not deprive the
public of access to the drugs.” Id.
55. The Court went so far as to suggest that the State could prohibit use of all Schedule II drugs.
Id. at 603.
56. Absent the statute, the physicians still had to fill out a written prescription identifying the
name and address of the patient. Id. at 604.
Recognizing that in some circumstances that duty [of
nondisclosure] arguably has its roots in the Constitution,
nevertheless New York’s statutory scheme, and its implementing
administrative procedures, evidence a proper concern with, and
protection of, the individual’s interest in privacy.57
B. Post-Whalen: The Supreme Court’s Limited Treatment of the Right to
Whalen v. Roe provided little guidance for lower courts dealing with
medical privacy issues. Regarding the first of the Court’s dual privacy
interests, “the individual interest in avoiding disclosure of personal
matters,” Whalen left unclear what constituted a violation of the right, and
failed to establish what type of constitutional treatment the courts were to
use when assessing it.58 Unlike the Court’s second privacy interest in
“independence in making certain kinds of important decisions,” which had
been fleshed out by several previous Supreme Court decisions59 including
Roe v. Wade60 and Paul v. Davis,61 there was no clear legal precedent for a
privacy interest in nondisclosure of personal matters.62
57. Id. at 605.
58. See, e.g., Borucki v. Ryan, 827 F.2d 836, 841 (1st Cir. 1987) (“Whalen provides little
guidance regarding the nature of the confidentiality branch of the right of privacy.”); Plante v.
Gonzalez, 575 F.2d 1119, 1133 (5th Cir. 1978) (“Because it determined that public disclosure was
unlikely, the Court [in Whalen] did not address the standard to be applied to such public disclosure.”).
59. Courts were not confused by Whalen’s privacy interest in independence in making certain
kinds of important decisions because the right encompassed other fundamental rights already
guaranteed within the “zone of privacy.” See Borucki, 827 F.2d at 839; United States v. Westinghouse
Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980); J.P. v. DeSanti, 653 F.2d 1080, 1087 (6th Cir. 1981).
These fundamental rights included “matters relating to marriage, procreation, contraception, family
relationships, and child rearing and education.” Borucki, 827 F.2d at 839 (quoting Paul v. Davis, 424
U.S. 693, 713 (1976)). The Fourteenth Amendment’s protection of fundamental rights is considerably
more developed than the right to nondisclosure of personal matters. Borucki, 827 F.2d at 839.
60. 410 U.S. 113,
) (“[T]he right of personal privacy includes the abortion decision,
but . . . this right is not unqualified and must be considered against important state interests in
61. 424 U.S. 693, 712 (1976) (holding that reputation alone does not implicate any liberty or
property interest sufficient to invoke the protection of due process). In Paul v. Davis, Paul, a police
officer, distributed flyers to local merchants warning against shoplifters in the area. Id. at 694–95.
Davis was one of the “active shoplifters” identified on the flyer. Id. at 695. Davis sought relief against
Paul’s alleged defamation under the protection of the Fourteenth Amendment, claiming that the flyer,
which included his name and photograph, impermissibly violated his “liberty.” Id. at 697. The
Supreme Court resoundingly rejected Davis’s argument. Id. at 698–99. In several of its previous
decisions, the Supreme Court had recognized certain privacy protections guaranteed by the Fourteenth
Amendment, including “matters relating to marriage, procreation, contraception, family relationships,
and child rearing and education.” Id. at 713. Here, however, Davis’s claim was “based, not upon any
challenge to the State's ability to restrict his freedom of action in a sphere contended to be ‘private,’
Nonetheless, the Supreme Court, within the same year, again
acknowledged the existence of a constitutional right to nondisclosure of
personal matters in Nixon v. Administrator of General Services.63 Former
President Nixon, seeking to maintain the privacy of communications he
made as President, challenged the constitutionality of a public law that
granted access to his presidential communications in order to review and
document them.64 The Supreme Court acknowledged that Nixon had a
legitimate expectation of privacy in his personal materials;65 however, it
found the intrusion justified by the greater public interest in archival
screening.66 With little explanation, but citing Whalen v. Roe, the Court
noted, “We may agree with [Nixon] that, at least when Government
intervention is at stake, public officials, including the President, are not
wholly without constitutionally protected privacy rights in matters of
personal life unrelated to any acts done by them in their public capacity.”67
Multiple lower courts have since latched on to this language as further
proof that the Supreme Court recognizes a constitutional right to
nondisclosure of personal matters.68
The constitutional right to nondisclosure of personal matters has not
been addressed by the Supreme Court since its limited treatment in Nixon.
As a result, the courts of appeals retain broad discretion in interpreting the
right. Their decisions refer to Whalen’s “individual interest in avoiding
disclosure of personal matters” as the right to confidentiality.69 Whalen’s
dual privacy interest, “independence in making certain kinds of decisions,”
has been termed the right to autonomy.70
C. Debate Over the Existence of the Right to Confidentiality Among the
Courts of Appeals
The courts of appeals have split over whether Whalen v. Roe created a
constitutional right to confidentiality.
Nine courts of appeals have
affirmed the existence of the right;71 two courts of appeals have practically
denied it.72 In addition, the constitutional treatments used to assess the
right contrast greatly among all the courts of appeals.73
Third Circuit applied a balancing
The seminal circuit court case affirming the constitutional right to
confidentiality is the Third Circuit’s decision in United States v.
Westinghouse Electric Corp.74 In 1978, the National Institute for
Occupational Safety and Health (NIOSH), a federal agency, investigated
complaints that Westinghouse’s Pennsylvania plant was infested
epoxy mold.75 As part of its investigation, NIOSH requested employee
medical records from Westinghouse.76 After Westinghouse repeatedly
refused to comply with NIOSH’s request, NIOSH sought legal action in
district court.77 The district court, ruling in favor of NIOSH, rejected
Westinghouse’s claim that its employee medical records were the type of
information constitutionally protected from disclosure.78 On appeal, the
test to assess Westinghouse’s
personal matters as the “confidentiality” branch of the constitutional right to privacy).
70. Id. (identifying the individual interest in independence in making certain kinds of important
decisions as the “autonomy” branch of the constitutional right to privacy). The autonomy branch of
privacy includes those rights identified by the Supreme Court in Paul v. Davis: “matters relating to
marriage, procreation, contraception, family relationships, and child rearing and education.” Id. at 839
(citing Paul v. Davis, 424 U.S. 693, 713 (1976)). See also supra note 61.
71. See infra note 85 and accompanying text.
72. See infra notes 102, 117 and accompanying text.
73. See infra notes 85–88 and accompanying text.
74. 638 F.2d 570 (3d Cir. 1980).
75. Id. at 572–74.
76. Id. at 573.
78. Id. Relying on Whalen v. Roe, the district court held that NIOSH had authority to view the
employees’ medical records given the public interest stake involved. Id. Westinghouse had not
demonstrated that the government would improperly disclose the medical information. Id.
Furthermore, the court found that NIOSH’s procedures for safeguarding the records were sufficiently
adequate to ensure nondisclosure. Id.
79. Id. at 578. The Third Circuit had no problem identifying medical records as the type of
information protected by the right to confidentiality and instead focused primarily on the issue of how
to assess each party’s interest. Id. at 577–78 (“There can be no question that an employee’s medical
The Third Circuit recognized that, while the Supreme Court has
allowed some intrusion into the right to privacy, “it has usually done so
only after finding that the societal interest in disclosure outweighs the
privacy interest on the specific facts of the case.”80 The court identified
seven factors to consider in balancing the societal benefit of disclosing the
medical records to NIOSH against the employees’ interest in privacy:81 1)
the type of record requested, 2) the information the record does or might
contain, 3) the potential for harm in any subsequent nonconsensual
disclosure, 4) the injury from disclosure in relation to the way in which the
record was generated, 5) the adequacy of safeguards to prevent an
unauthorized disclosure, 6) the degree of need for the information, and
finally, 7) whether an express statutory mandate, articulated public policy,
or other recognizable public interest militates in favor of access.82
Applying these seven factors to the case at hand,83 the court concluded that
the strong public interest in facilitating the research and investigations of
NIOSH justified the minimal intrusion into Westinghouse’s employee
In addition to the Third Circuit, eight circuit courts have affirmed the
constitutional right to confidentiality.85 Two of these courts did so
specifically in the context of protecting medical records.86 Several of these
courts have also adopted a balancing test similar to that used by the court
in Westinghouse to assess the right.87 However, there remains variability
among the factors balanced by these courts.88
A few circuit courts use dramatically different tests to assess the right
to confidentiality. For example, the Fourth Circuit in Walls v. City of
Petersburg89 used a strict scrutiny test90 to conclude that Walls’s city
employer had not violated her constitutional right to privacy when it
required her to fill out a questionnaire asking about her sexual orientation,
marital status, family history, and financial status.91 According to the
Eighth Circuit, only “inherently private” information is entitled to
constitutional confidentiality protection.92 This unique standard requires
that the information disclosed be either a “shocking degradation or an
87. Barry v. City of New York, 712 F.2d 1554, 1559–60 (2d Cir. 1983) (citing Westinghouse and
holding that “some form of intermediate scrutiny or balancing approach is appropriate as a standard of
review”); Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981) (“In deciding upon the merits of Fadjo’s
case, the district court must balance the invasion of privacy alleged by Fadjo against any legitimate
interests proven by the state.”); Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir. 1996) (holding that “[t]he
government may obtain and use medical information if its interest in obtaining the information
outweighs a person’s interest in privacy”) (citing Doe v. Att’y Gen., 941 F.2d 780, 796 (9th Cir.
88. See, e.g., United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)
(balancing seven factors); Plante v. Gonzalez, 575 F.2d 1119, 1134–35 (5th Cir. 1978) (balancing four
state concerns against the senators’ interests); Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir. 1996)
(balancing four of the factors identified in Westinghouse).
89. 895 F.2d 188 (4th Cir. 1990).
90. “If the information is protected by a person’s right to privacy, then the defendant has the
burden to prove that a compelling governmental interest in disclosure outweighs the individual’s
privacy interest.” Id. at 192.
91. Id. at 190–93. Walls brought a Title VII action against her city employer for firing her after
she refused to complete a background questionnaire. Id. at 190. Walls specifically objected to four
questions that asked about her family members’ criminal histories, her marriage status, whether or not
she had ever had sexual relations with someone of the same sex, and asked her to list all her
outstanding debts. Id. In assessing Walls’s privacy claim, the Fourth Circuit acknowledged that
Whalen protects two types of privacy interests. Despite this acknowledgment, it gave both interests
identical strict scrutiny treatment, as if they encompassed one general right to privacy. Id. at 192.
Applying strict scrutiny, the court held that the city had a compelling interest in obtaining Walls’s
information and had exercised sufficient caution in order to protect her information from potential
disclosure. Id. at 195. Therefore, the city had not violated Walls’s constitutional right to privacy. Id.
92. See Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996). In Eagle v. Morgan, David Eagle
accepted a plea agreement stating that after serving minimal jail time and a six-year probation, his
felony theft of property charge would be expunged. Id. at 622. Upon full compliance with the plea
agreement, Eagle was released and became a city auditor. Id. When Eagle drew the displeasure of the
local police department he was auditing, several police officers abused their access to city databases
and, discovering Eagle’s past criminal record, divulged it to the public. Id. at 623. In assessing whether
Eagle’s criminal record was the type of “inherently private” information entitled to protection, the
Eighth Circuit considered the types of information to which other courts of appeals had extended
protection. Id. at 625–26. Agreeing with three other courts of appeals, it concluded that because prior
guilty pleas “are by their very nature matters within the public domain,” they are not inherently
private. Id. at 625. Therefore, Eagle possessed no legitimate expectation of privacy and was not
entitled to constitutional protection. Id. at 625–27.
egregious humiliation . . . .”93 Furthermore, there is an ongoing debate
among many of the courts over whether the right to confidentiality is
limited to only those fundamental matters guaranteed protection by the
right to autonomy.94
A First Circuit decision illustrates the complexity that results from the
inconsistent approaches to the right of confidentiality. In Borucki v.
Ryan,95 the First Circuit considered whether a prosecutor’s disclosures to
the press concerning the contents of Borucki’s psychiatric report
constituted a violation of Borucki’s right to privacy.96 Choosing to wash
its hands of the conflict over the existence of a right to confidentiality,97
the First Circuit held that because it was not “clearly established” that
psychiatric reports are the type of thing protected by the right to privacy,
the right to confidentiality did not apply.98 The court failed to explain what
criteria were necessary to trigger a “clearly established” constitutional
right to privacy.99 Rather, it deferred to the fact that none of the other
93. Id. at 625 (quoting Alexander v. Peffer, 993 F.2d 1348, 1350 (8th Cir. 1993)). “‘[T]o violate
[a person’s] constitutional right of privacy the information disclosed must be either a shocking
degradation or an egregious humiliation of her to further some specific state interest, or a flagrant
bre[a]ch of a pledge of confidentiality which was instrumental in obtaining the personal information.’”
Eagle, 88 F.3d at 625 (quoting Alexander, 993 F.2d at 1350).
94. See, e.g., Doe v. SEPTA, 72 F.3d 1133, 1137 (3d Cir. 1995) (“When the underlying claim is
one of invasion of privacy, the complaint must be ‘limited to those [rights of privacy] which are
“fundamental” or “implicit in the concept of ordered liberty” . . .’”) (citing Paul v. Davis, 424 U.S.
693, 713 (1976)). But compare Denius v. Dunlap, 209 F.3d 944, 956 (7th Cir. 2000) (“[I]t is not clear
whether the right of confidentiality covers all confidential information or only confidential information
relating to certain matters.”). See also discussion infra note 112.
95. 827 F.2d 836 (1st Cir. 1987).
96. Id. at 837. Borucki had been charged with damaging twenty-three aircraft at a Massachusetts
airport. Id. Although Borucki had not offered a defense of insanity, the state district court ordered that
Borucki be examined to determine whether he was competent to stand trial. Id. The criminal charges
against Borucki were ultimately dismissed. Id. Following the dismissal of the charges, Ryan, the
prosecutor, held a press conference during which he disclosed the information contained in Borucki’s
psychiatric examination. Id.
97. The court offers a lengthy discussion of the differences of opinion among the courts of
appeals regarding a constitutional right to confidentiality. Id. at 841–49.
99. In its analysis, the First Circuit gave substantial consideration to concerns over whether the
right to confidentiality pertains only to those fundamental rights protected by the autonomy branch of
the right to privacy, or whether the right to confidentiality is itself an independent right. Id. at 841–44.
Ultimately, the court chose to refrain from reaching a conclusion concerning these two positions.
Instead, it relied on the uncertainty of all the relevant areas of possible protection to conclude that
psychiatric records do not fall with the privacy protection of the confidentiality branch. Id. at 845.
The court’s end result leaves its position with respect to the right of confidentiality unclear.
Specifically, it is unclear whether it believes that no right to confidentiality exists because the right
protects only those fundamental rights guaranteed by the autonomy branch of privacy, or because its
fellow courts of appeals have yet to recognize the confidentiality of psychiatric records as a legitimate
right to be protected. If the First Circuit meant to endorse the latter proposition, then it is interesting
courts of appeals recognized a similar privacy protection for psychiatric
records.100 Furthermore, the court explicitly stated that it had no opinion as
to whether the use of a balancing test is appropriate to assess whether the
government possesses a valid public interest in disclosure.101 Thus, the
First Circuit’s decision postponed a conclusive evaluation of the right to
confidentiality, leaving such an analysis for a time when the parameters of
the right are more clearly fleshed out.
While the First Circuit appears hesitant to cast doubt on the existence
of a right to confidentiality, the Sixth and D.C. Circuits are clearly not
afraid to do so. In J.P. v. DeSanti,102 the Sixth Circuit considered the
claims of juveniles who asserted that their probation officers violated their
constitutional right to privacy when the officers compiled social histories
about the juveniles.103 Among other things, the social histories contained
information on and from complaining parties, the juveniles, their parents,
school records, and the juveniles’ past records in court.104 The social
histories were compiled nonconsensually by the court’s probation officers,
and the juveniles and their families were denied access to them.105
Postadjudication, however, the social histories were made available to
fiftyfive governmental, social, and religious agencies.106
The juveniles claimed that the court’s uses of the social histories were
unconstitutional and sought to enjoin access to them by anyone other than
juvenile court personnel.107 While the district court found that the juvenile
court’s post-adjudication dissemination of the social histories violated the
juveniles’ constitutional right to privacy,108 the Sixth Circuit did not.109 In
that it did not consider psychiatric records to fall within the general category of medical records, which
have been protected by other courts of appeals. See supra note 86 and accompanying text.
100. Borucki, 837 F.2d at 847–49.
101. Id. at 848 n.21.
102. 653 F.2d 1080 (6th Cir. 1981).
103. Id. at 1081.
104. Id. at 1082.
106. Id. at 1085.
108. Id. at 1082. The district court held that the dissemination of the juveniles’ social histories
amounted to an impermissible violation for two reasons. Id. at 1085–86. First, the disclosure violated
the Ohio Code, which provided that “the reports and records of the probation department shall be
considered confidential information and shall not be made public.” Id. (citing Ohio Rev. Code
§ 2151.14). Second, the disclosure violated the “right of juveniles and their family members ‘to have
intimate biographical details protected from exposure to the government.’” Id. at 1086. This second
violation was unconstitutional. Id.
109. Id. at 1087.
particular, the Sixth Circuit chided the district court for failing to tie its
analysis to any direct provision of the Constitution.110
The Sixth Circuit rejected the notion that Whalen v. Roe created a right
to confidentiality to be assessed according to a balancing test. The court
explicitly stated, “We do not view the discussion of confidentiality in
Whalen v. Roe as . . . creating a constitutional right to have all government
action weighed against the resulting breach of confidentiality.”111 Rather,
the court considered the Supreme Court’s analysis in Whalen v. Roe as an
isolated statement extending from the Supreme Court’s previous
substantive due process decisions that conferred several specific
fundamental privacy protections and only those protections.112 To allow
otherwise would potentially require the courts to balance every
government action against any intrusion of individual privacy.113 Such a
task, the court argued, was better left to the states or the legislative
process.114 Indeed, the court asserted that “[i]nferring very broad
‘constitutional’ rights where the Constitution itself does not express them
is an activity not appropriate to the judiciary.”115 Given the Sixth Circuit’s
finding that protection of the juveniles’ social histories was not tantamount
to a fundamental right, it is not surprising that the court held the disclosure
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The D.C. Circuit joined the Sixth Circuit’s critical analysis of the right
to confidentiality in American Federation of Government Employees,
AFL-CIO v. Department of Housing and Urban Development.117 The D.C.
Circuit began its analysis by “expressing [its] grave doubts as to the
existence of a constitutional right of privacy in the nondisclosure of
personal information.”118 The right to confidentiality, it believed,
amounted to little more than unresolved, “recurring dicta.”119
Joined as two companion cases, AFL-CIO involved long-term
employees of the Department of Housing and Urban Development (HUD)
and the Department of Defense (DOD) who sought to enjoin HUD and
DOD from subjecting them to periodic reinvestigation of private concerns,
such as illegal drug use, mental health, and financial history, information
about which both departments had previously acquired
preemployment.120 Because the employees held sensitive or public trust
positions, both HUD and DOD believed that it was necessary to
continually investigate their fitness for employment.121 The D.C. Circuit
agreed with the agencies.122 According to the court, the “numerous
uncertainties” that surrounded the right to confidentiality made its
constitutional protection unhelpful in this case.123 Because there was no
indication that the results of the departments’ additional investigations
would be revealed to the public,124 the court concluded that the individual
interest in protecting the privacy of the information gathered was
significantly less important than the departments’ interest in having the
117. 118 F.3d 786 (D.C. Cir. 1997).
118. Id. at 791. The court then stated that were it the first to confront the issue of a right to
nondisclosure of personal matters, it would have found “with little difficulty” that no right exists. Id.
119. Id. “The Supreme Court has addressed [the right to confidentiality] in recurring dicta without,
we believe, resolving it.” Id.
120. Id. at 788–89.
121. Id. at 788.
122. Id. at 794.
123. Id. at 793.
124. Id. Security measures against disclosure included a policy prohibiting public dissemination,
maintaining the records under secure conditions, and requiring background checks for those officials
who had access to the records. Id. The court believed that these measures, designed to protect the
confidentiality of the information, “substantially reduce[d] the employees’ privacy interests.” Id.
125. Id. at 794. The court concluded that HUD adequately defended its need for the employees’
information. Id. at 793. For example, HUD presented evidence that an employee who used illegal
drugs would be more likely to make a negligent error on the job. Id. at 794. Because HUD’s
employees have access to confidential information, it is important that they remain trustworthy. Id. In
order to ensure that the employees possessed the level of trust necessary to perform their jobs, HUD
had a legitimate interest in discovering which of its employees were illegal drug users or were in
financial trouble. Id.
Like the Sixth Circuit in DeSanti, the D.C. Circuit expressed in
AFLCIO its concern that none of the circuit courts upholding the right to
confidentiality cited a particular provision of the Constitution in doing
so.126 Finding that no such provision existed,127 the court thought it
improper to extend the privacy right unless there was proof that the
government would publicly disseminate the information it collected.128
Because HUD and DOD presented sufficient evidence to indicate that the
information collected would not be disseminated,129 the court concluded
that their intrusions were permissible.130
On the surface, there appear to be two contrasting interpretations of
Whalen v. Roe among the courts of appeals: one that affirms the existence
of a constitutional right to confidentiality and one that questions it.131
Grouping the various interpretations of Whalen v. Roe into one of these
two overarching, opposing viewpoints, however, oversimplifies the
opinions of the circuit courts. For example, among those courts that affirm
the existence of a right to confidentiality, numerous divisions exist over
the type and amount of constitutional treatment the right should receive.132
Among those courts that question the right, there is division over the
primary reason to reject it.133 Rather than two dichotomous interpretations
of Whalen v. Roe, in reality a spectrum of twelve different interpretations
exists. As a result, the privacy protection afforded by the right to
confidentiality remains questionable, at best.
Of all the courts of appeals, the D.C. Circuit’s analysis in AFL-CIO is
the most persuasive interpretation of the right to confidentiality. The D.C.
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Circuit correctly points out that in both Whalen v. Roe and Nixon v.
Administrator of General Services, the Supreme Court gave little more
than a passing glance to the right to confidentiality.134 In Whalen v. Roe,
the Supreme Court asserted that the right to confidentiality “arguably has
its roots in the Constitution,” but it failed to identify where.135 Indeed,
none of the precedent cited by the Supreme Court in reference to the right
to confidentiality affords constitutional protection against the
nondisclosure of personal matters.136 Instead, the cases protect various
privacy concerns emanating from other clearly defined rights, such as
illegal search and seizure under the Fourth Amendment.137 Justice Stewart
acknowledged this problem with the Supreme Court’s analysis in his
concurrence in Whalen v. Roe.138
In Nixon v. Administrator of General Services, the Supreme Court only
suggested that it “may agree” with the protection of privacy rights in
matters of personal life.139 Furthermore, in neither Whalen nor Nixon did
the Supreme Court offer any analytical framework for interpreting the
They sought to protect Americans in their beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government, the right to be let alone—the most
comprehensive of rights and the right most valued by civilized men. To protect that right,
every unjustifiable intrusion by the Government upon the privacy of the individual, whatever
the means employed, must be deemed a violation of the Fourth Amendment.
Id. at 478.
Without question, this powerful language evokes the American sentiment that privacy is a value.
The Supreme Court certainly seemed to believe as much since it quoted part of Brandeis’s text in
reference to the right to confidentiality. Whalen, 429 U.S. at 599 n.25. The problem with Olmstead,
however, is that its lengthy opinion says nothing about protecting the nondisclosure of personal
matters. Rather, Olmstead’s “right to be let alone,” Justice Brandeis argues, grows out of a clear
constitutional guarantee: the Fourth Amendment. Olmstead, 277 U.S. at 478. This is unlike the right to
confidentiality, which does not have a clear constitutional guarantee from which it can be recognized.
For this reason, it seems far-reaching for the Supreme Court in Whalen to cite Olmstead in support of a
constitutional right to confidentiality.
138. In his concurrence in Whalen v. Roe, Justice Stewart concludes that the right to
confidentiality is not a constitutionally protected right based on past Supreme Court precedent.
Whalen, 429 U.S. at 608–09 (Stewart, J., concurring). Specifically, he analyzed the two opinions cited
by the majority in support of the right to confidentiality, Griswold v. Connecticut and Stanley v.
Georgia, and concluded that neither recognizes a privacy interest in nondisclosure of personal matters.
139. See supra note 67 and accompanying text.
right to confidentiality.140 This suggests that the Supreme Court itself was
unsure how much protection the right should receive.
The Sixth Circuit’s rationale for doubting the existence of a right to
confidentiality is less persuasive than the D.C. Circuit’s because it
conflates the right to confidentiality with the right to autonomy. According
to the Sixth Circuit’s decision in DeSanti, the existence of a right to
confidentiality is doubtful not only because the right lacks textual support
from the Constitution and Supreme Court precedent, but also because it is
irreconcilable with the Supreme Court’s earlier decision in Paul v. Davis
concerning the right to autonomy.141 Several authors, however, have
explained why this analysis is mistaken.142 The right to confidentiality is a
privacy right distinct and separate from the right to autonomy.143 The
Supreme Court made this clear in Whalen v. Roe when it failed to cite to
Paul v. Davis in reference to the right to confidentiality, yet explicitly did
so in reference to the right to autonomy.144 Absent its mistaken conflation
of the two privacy interests, the Sixth Circuit offers no other plausible
reason to narrowly construe the right to confidentiality so as to practically
Least persuasive of all are the opinions of the courts of appeals that
affirm the right to confidentiality. Their analyses are unconvincing for four
reasons. First, the constitutional treatment they apply is inconsistent.
Every court of appeals that affirms the right to confidentiality relies on a
different test to reach its determination.145 Even among the majority of
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courts that support the use of a balancing test, the factors they rely on
differ.146 This division of treatment highlights one of the major practical
problems for litigants bringing claims under the right to confidentiality.147
Because there is neither consensus as to which level of treatment the right
should be afforded, nor consensus over which factors should apply when a
balancing test is used, the right is inconsistently recognized and applied.148
This results in confusion for both the government and private litigants who
must endure different constitutional treatment depending on the circuit in
which they bring their cases.
Second, despite the differing constitutional treatments that pervade the
courts, only under the most egregious factual circumstances will the
individual litigant likely prevail, regardless of the court in which the case
is brought.149 This outcome seems contrary to the ideals espoused in the
courts’ opinions, which often strongly assert the importance of preserving
nondisclosure of personal matters and the need for confidential material to
be constitutionally protected.150 The fact that so few private litigants
prevail makes the practice of recognizing the right to confidentiality
inadequate, since it subverts the very purpose of recognizing the right in
the first place. There is little reason behind recognizing a right that, in
practice, no court will uphold.
One explanation for this inadequacy is that, in the majority of courts
using a balancing test, little weight is given to the private litigant’s
(applying a test of strict scrutiny in reaching its determination); Eagle v. Morgan, 88 F.3d 620, 625
(8th Cir. 1996) (providing protection only to disclosure of “inherently private” information); Anderson
v. Blake, 469 U.S. F.3d 910, 914 (
10th Cir. 2006
) (holding that the state must demonstrate that it had a
compelling interest for disclosure and that it used the least intrusive means of disclosing the
146. See supra note 88.
147. For example, in a case concerning a surgeon diagnosed with AIDS who sued the hospital
where he worked for requiring his patients to sign an “unusual consent form” notifying them of the
surgeon’s AIDS status before undergoing surgery, the trial judge admitted that he “has been unable to
elicit a standard against which to gauge the hospital’s actions.” Joseph F. Sullivan, Should a Hospital
Tell Patients if a Surgeon Has AIDS?, N.Y. TIMES, Dec. 12, 1989, at B1. The judge was also
“concern[ed] about the line he may be asked to draw between a patient’s right to know and a
physician’s right to confidentiality about his own health.” Id.
148. See supra notes 88, 145.
149. “[C]ourts have been willing to uphold statutes giving only the barest minimum of safeguards
. . . .” Jessica Ansley Bodger, Note, Taking the Sting Out of Reporting Requirements: Reproductive
Health Clinics and the Constitutional Right to Informational Privacy, 56 DUKE L.J. 583, 607 (2006).
150. Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir. 1999) (“Th[e] right [to confidentiality] is a
venerable one whose constitutional significance we have recognized . . . .”); Walls v. City of
Petersburg, 895 F.2d 188, 194–95 (4th Cir. 1990) (“Although some of this information can be useful
and even necessary to maintain order and provide communication and convenience in a complex
society, we need to be ever diligent to guard against misuse. Some information still needs to be
private, disclosed to the public only if the person voluntarily chooses to disclose it.”).
individual interest in privacy.151 For example, despite its lengthy
sevenfactor test, the seminal balancing test used by the Third Circuit in United
States v. Westinghouse Electric Corp. provides no distinct factor
representing the private litigant’s individual reasons for seeking
confidentiality.152 In fact, the Third Circuit only considers the individual’s
privacy interest in relation to the public need for access.153 This standard
necessarily results in unfavorable treatment for the private litigant whose
reasons for desiring confidentiality are not even considered a distinct,
viable factor worthy of balancing. It also renders the balancing test
inherently tilted in favor of the government since all the factors take into
consideration the government’s interest and none independently represent
the private litigant’s individual interest. While this tilt is not necessarily
improper,154 it certainly accounts for the private litigant’s lack of privacy
Third, like the Sixth Circuit in DeSanti, the First and Eighth Circuits
only extend constitutional confidentiality protection to those certain
matters protected under the Fourteenth Amendment’s right to
autonomy.155 Under this type of treatment, the confidentiality of medical
records is not constitutionally protected.156 Furthermore, this type of
treatment reduces the significance of the right to confidentiality, since
arguably every breach of confidentiality also necessarily triggers the
privacy protection of the right to autonomy.157
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Finally, the confidentiality protection provided by these courts of
appeals guarantees only a reasonable expectation of privacy, rather than
allowing individuals to protect their privacy in accordance with their own
personal preferences. Balancing tests limit privacy protection to whatever
courts deem should be private, since the weighing of interests necessarily
assumes there are legitimate instances in which the public interest
outweighs an individual’s interest and vice versa.158 This protection is
limiting because it disregards the fact that what some individuals would
regard as private information, others would not.159 If privacy is something
that stems from an individual’s sense of values—and the Supreme Court
seems to say so in its final thought in Whalen v. Roe160—then privacy
protection needs to be based on a system that protects an individual’s
personal assessment of his privacy interests, rather than a system that
imposes societal notions of privacy on every individual.161
The inconsistent and inadequate privacy protection that pervades the
constitutional analysis applied by courts that affirm the right to
confidentiality lends further support to the D.C. Circuit’s belief that the
right to confidentiality suffers from too “numerous uncertainties” to be
helpful.162 In total, these uncertainties amount to a privacy protection that
lacks the value that the Supreme Court sensed was important and
attempted to preserve in Whalen v. Roe.163 Given the questionable state of
the right to confidentiality and the Supreme Court’s disinclination to
address the issue further, confidential materials require an alternative legal
doctrine to ensure their protection.
IV. PROTECTING PRIVACY
The Supreme Court made some attempt to protect the nondisclosure of
personal matters in Whalen v. Roe.164 Yet the Court clearly did not want to
give nondisclosure of personal matters the same level of protection as
other fundamental rights.165 Given the questionable state of the right to
158. Edgar & Sandomire, supra note 6, at 162–63.
159. Allen-Castellitto, supra note 25, at 29.
160. See supra note 57 and accompanying text.
161. See generally Amy Peikoff, No Corn on This Cobb: Why Reductionists Should Be All Ears
for Pavesich, 42 BRANDEIS L.J. 751, 784–88 (2004) (arguing that the right to privacy, as originally
conceived, is based on moral and political first principles meant to protect an individual’s private
information from being surrendered to society).
162. See supra note 123 and accompanying text.
163. See supra note 57 and accompanying text.
164. Whalen v. Roe, 429 U.S. 589, 599–600 (1977).
confidentiality and the inconsistent and inadequate privacy protection
provided currently by the courts of appeals, how can confidentiality be
protected? This Note proposes that the answer to that question lies not in
constitutional law but in privacy tort law.166 In the context of medical
records, tort law provides the best protection against those who, without
authorization, seek to acquire information from confidential health
Privacy tort law protects against breaches of confidential medical
records in one of two ways: via a theory of implied contract or via a theory
of fiduciary duty.168 A theory of implied contract arises when a patient and
physician fail to sign a contract barring the physician from disclosing
certain confidential information, yet such a contract is implied based on
the particular nature of the patient-physician relationship.169 A theory of
fiduciary duty arises when a patient enters a relationship with a physician
under the expectation that the physician will act with good will to care for
the patient’s health.170 The legal purpose for recognizing a breach of
implied contract or fiduciary duty is the same as that underlying the
166. A similar suggestion was presented by Bruce Watson as a solution for protecting privacy in
the face of increased use of computerized healthcare information. Bruce L. Watson, Disclosure of
Computerized Health Care Information: Provider Privacy Rights Under Supply Side Competition, 7
AM. J.L. & MED. 265, 285–99 (1981). More recently, Eugene Volokh has suggested an analogous
solution for privacy protections involving free speech and the internet. Eugene Volokh, Freedom of
Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking
About You, 52 STAN. L. REV. 1049 (2000). In his article, Volokh asserts that existing contract law is
“eminently defensible under existing free speech doctrine.” Id. at 1057. He argues that implied
contracts, which promise confidentiality, allow for speakers to contract not to speak. Id. at 1058. The
freedom of the individual to contract his own speech restrictions, he argues, is a preferable option to
expanding speech restrictions already in force, such as commercial speech and speech on matters of
private concern. Id. at 1080–1106.
167. See Richard C. Turkington, Legal Protection for the Confidentiality of Health Care
Information in Pennsylvania: Patient and Client Access; Testimonial Privileges; Damage Recovery for
Unauthorized Extra-Legal Disclosure, 32 VILL. L. REV. 259, 375–86 (1987). See generally William J.
Winslade & Judith Wilson Ross, Privacy, Confidentiality, and Autonomy in Psychotherapy, 64 NEB. L.
REV. 578, 584–606 (1985) (describing privacy tort law protections for medical patients).
168. Turkington, supra note 167, at 383–85. Other common law torts provide protection against
privacy invasions. These torts include “disclosure of private facts, appropriation of name or likeness
for personal advantage, intrusion of one’s physical solitude or seclusion, and publicity that places one
in a false light in the public eye.” Scott L. Fast, Comment, Breach of Employee Confidentiality:
Moving Toward a Common-Law Tort Remedy, 142 U. PA. L. REV. 431, 434 (1993) (citing
RESTATEMENT (SECOND) OF TORTS § 652A (1977)). Some of these torts lend well to the context of the
physician-patient relationship, while others do not. See Alan B. Vickery, Note, Breach of Confidence:
An Emerging Tort, 82 COLUM. L. REV. 1426, 1428–48 (1982) (discussing the merits of the various
common law privacy torts). This Note relies on an analysis of the two privacy torts identified by
Richard Turkington in his article, both of which Turkington believes the most suitable for protection of
medical records. See Turkington, supra note 167, at 383–86.
169. Turkington, supra note 167, at 383.
170. BLACK’S LAW DICTIONARY 545 (8th ed. 2004).
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concern for constitutional protection: privacy is needed to foster a
relationship of trust between physician and patient; otherwise individuals
may be deterred from seeking medical attention or may not fully disclose
their medical history to their physician, thereby resulting in diminished or
inadequate medical care.171 A third party that induces the breach of either
an implied contract or fiduciary duty is liable to the patient for that
breach.172 Thus, both theories create a cause of action against government
officials who, acting as third parties, attempt to breach the
patientphysician relationship in order to gain access to private medical records.
Both a theory of implied contract and a theory of fiduciary duty
provide more protection to the nondisclosure of personal matters than any
current constitutional protection. Unlike the current constitutional tests
used by the circuit courts, which are inconsistently applied and often result
in confusion, theories of implied contract and fiduciary duty are well
recognized by courts and are applied consistently.173 Thus, they are more
predictable for litigants. Also, unlike balancing tests, both theories protect
a patient’s confidentiality by presuming a guarantee of confidentiality
upfront. Any party that attempts to breach an implied contract or fiduciary
duty can be enjoined from doing so, as opposed to current constitutional
balancing tests, which only recognize a violation after the breach of
privacy has already occurred.174 Privacy tort law also avoids the confusion
and conflation of the two privacy interests expressed in Whalen v. Roe.175
Through tort law, confidential privacy protection can extend to include,
among other things, medical records, financial records, and psychiatric
records.176 Thus, confidential privacy protection cannot be limited to only
those rights that fall under the right to autonomy.
171. These were the very concerns that the Supreme Court acknowledged in Whalen v. Roe in
asserting a constitutional right to confidentiality. See supra notes 48–49 and accompanying text. But
see Winslade & Ross, supra note 167, at 584–85 (explaining how constitutional law protects only
restrictions against individual privacy and tort law protects invasions of individual privacy).
172. Turkington, supra note 167, at 384.
173. Id. at 384–85 n.408 (citing the following states as recognizing causes of action for privacy
torts: Alabama, Massachusetts, Minnesota, Nebraska, New Jersey, New York, and Utah).
174. In Whalen v. Roe, the Supreme Court did not decide the result of an unwarranted disclosure
of privacy, intentional or not. Whalen, 429 U.S. 589, 605–06 (1977). The Court’s holding pertained
only to whether the Fourteenth Amendment was violated. Id. at 606. As a result, it is unclear whether
constitutional protection for the right of constitutionality extends to potential privacy invasions. If the
government can show that it has taken sufficient precautions to avoid disclosure, the right likely does
not extend to potential privacy invasions. Whalen v. Roe suggests such an outcome since the Supreme
Court relied on the fact that New York had taken multiple steps to avoid disclosure of the information
it collected. See discussion supra note 53.
175. See supra note 94 and accompanying text.
176. See supra note 156.
Theories of implied contract and fiduciary duty protect an individual’s
privacy at a level commensurate with his personal views about privacy, as
opposed to a societal expectation of privacy.177 Each patient has the
freedom to assess his personal sense of privacy and decide whether or not
to make his medical information available to third parties. If he does not
want his medical information shared, then he can enjoin a third party from
gaining access to it. If he would like to share his medical information, then
he can consent to a third party’s acquisition of his records. This freedom is
not available under current constitutional tests, which permit a third party
to violate a patient’s confidentiality absent consent whenever a court
determines that the third party’s interest is more important than the
Furthermore, like constitutional privacy principles,179 a theory of
implied contract or fiduciary duty does not make privacy protection
absolute.180 Both can be limited in two important instances: when a patient
consents to disclosure, or when the disclosure furthers an overriding,
mandated public interest.181 In the second instance, the
government may still be able to gain access to confidential patient
information; however, it may do so only when the legislature explicitly
directs such disclosure—an outcome that may prove difficult to achieve as
constituents become increasingly wary of privacy invasions by the
177. Edgar and Sandomire argue that “[r]estricting protection to medical records rather than
protecting broad categories of information may lead to anomalous results.” Edgar & Sandimore, supra
note 6, at 163. They cite as an example the fact that HIV laws restrict HIV test disclosures, but do not
similarly limit clinical diagnoses of AIDS. Id. at 163. This concern can be ameliorated under a theory
of implied contract or fiduciary duty, because individual litigants can decide for themselves which
breaches of confidentiality they do not wish to permit. Using the above example, the disclosure of
clinical diagnoses of AIDS is significant only if an individual litigant believes such a disclosure is
inappropriate. Anomalous results are not a bad thing. Rather, they are an illustration of what certain
people consider an impermissible invasion of their privacy, and what others simply do not.
178. See, e.g., United States v. Westinghouse Elec. Corp., 638 F.2d 570, 580 (3d Cir. 1980)
(concluding that the strong public interest in facilitating the research and investigations of NIOSH
justified the minimal intrusion into Westinghouse’s employee medical records).
179. See discussion supra note 154.
180. Turkington, supra note 167, at 385.
181. Id. Express consent is an absolute defense to privacy torts. RESTATEMENT (SECOND) OF
TORTS § 583 (1965). Public interest in disclosure is a conditional defense to privacy torts. Id. § 652G.
It requires legislative authority expressly authorizing nonconsensual disclosure.
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However, there remain many potential problems with privacy tort
protections.182 One potentially significant problem is that the government
may retain sovereign immunity183 against third-party implied contract or
fiduciary duty causes of action. Protecting confidentiality through the
tortious breach of the physician-patient relationship would be futile in the
face of a government body that can intrude as a third party, obtain
confidential medical records, and avoid being sued. Indeed, one of the
definite advantages of having a constitutional right to confidentiality is
that the problem of sovereign immunity is avoided.184 The problem of
sovereign immunity, however, may be averted in certain contexts, such as
against municipalities, which are excluded from sovereign immunity
specifically to ensure that they remain accountable for impinging on the
rights of their citizens.185 If privacy tort protection proves insufficient due
to sovereign immunity problems, then legislation may be needed to ensure
that this protection is given full force.186
Theories of implied contract and fiduciary duty, while themselves
incontrovertible common law principles, are relatively new in their
application to confidentiality protection.187 For this reason and those
mentioned above, this area of privacy law still requires more development.
What is clear, however, is that both theories offer more consistent and
182. Potential problems include: What sort of protection is there for communications in which
there is no social convention of confidentiality? See Volokh, supra note 166, at 1058. In a similar vein,
what happens when a patient seeking group medical care desires confidentiality? See Winslade &
Ross, supra note 167, at 610. Another limiting factor may be privileges extended by state governments
requiring certain types of individuals, such as physicians or newsmen, to make disclosures. Edgar &
Sandomire, supra note 6, at 162. See generally Vickery, supra note 168, at 1437–48 (discussing the
inadequacies of current privacy tort laws).
183. Sovereign immunity is guaranteed by the Eleventh Amendment, which states, “The Judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST. amend. XI. The Supreme Court has devised three methods to
circumvent the Eleventh Amendment, thereby allowing federal courts limited means to ensure that
states comply with federal law. ERWIN CHEMERINSKY, FEDERAL JURISDICTION 395 (4th ed. 2003).
These three methods include allowing state officers to be sued individually, permitting states to waive
their sovereign immunity, and sanctioning “litigation against the states pursuant to statutes adopted
under the Fourteenth Amendment.” Id.
184. In Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57 (1976), the Supreme Court held that citizens
my sue states for claims arising under the Fourteenth Amendment. CHEMERINSKY, supra note 183, at
446–47 (discussing how Congress can authorize suits against the states pursuant to section 5 of the
185. CHEMERINSKY, supra note 183, at 413. The exception for municipalities would allow
diabetes patients to sue New York City’s DOHMH to seek an injunction preventing DOHMH from
enrolling them in the pilot intervention program.
186. Watson, supra note 166, at 298–99 (suggesting the need for the federal government and state
legislatures to provide quality controls through legislation to facilitate actions for tortious breaches).
187. Vickery, supra note 168, at 1454–55.
adequate privacy protection than that afforded by the constitutional right
to confidentiality. Indeed, legal scholarship is increasingly recognizing the
value of these theories as viable alternatives for privacy protection.188 In
the face of increased privacy violations of medical records, theories of
implied contract and fiduciary duty offer a compelling alternative to the
questionable right to confidentiality.
Given the current inconsistent and inadequate privacy protection
offered by the right to confidentiality, New York City’s diabetes program,
if challenged, would likely be held constitutional.189 Nonetheless, this
outcome would seem to run counter to the Supreme Court’s general belief
expressed in Whalen v. Roe that privacy is something that is rooted in the
Constitution and should be protected.190 Privacy values are violated when
the government directly intrudes on the physician-patient relationship,
which New York City clearly does with its pilot intervention program in
the South Bronx.
New York City’s Department of Health and Mental Hygiene violates
patients’ privacy rights when it seizes confidential medical records in
order to offer unsolicited medical advice. This seems especially egregious
when the government caller who contacts the patient and physician
possesses no medical expertise.191 However, patients cannot solve this
problem by asserting a constitutional right to privacy, since any individual
patient’s interest in privacy would likely succumb to the government’s
putative public health interest.
As an unauthorized third party, New York City’s DOHMH breaches
the confidence of the patient-physician relationship when it induces
medical laboratories to provide it with patients’ A1C blood test results.192
DOHMH does the same when it nonconsensually contacts patients to
inform them about their blood test results.193 These intrusive acts give rise
to a cause of action under both a theory of implied contract and a theory of
fiduciary duty. Accordingly, patients who are injured by New York City’s
188. See, e.g., Fast, supra note 168; Vickery, supra note 168.
189. “Conventional public health reporting statutes . . . will pass constitutional muster even if
Whalen is used to limit government power to collect health information about named individuals.”
Edgar & Sandomire, supra note 6, at 165.
190. See supra note 57 and accompanying text.
191. See supra note 18.
192. See supra note 9 and accompanying text.
193. See supra note 14 and accompanying text.
of their patient-physician relationships should file suit and
demonstrate that the theories of implied contract and fiduciary duty offer a
plausible solution to privacy protection absent a constitutional right.
7. See The New York City Department of Health and Mental Hygiene (DOHMH), Diabetes Prevention and Control , http://www.nyc.gov/html/doh/html/diabetes/diabetes-nycar. shtml (last visited Nov. 8 , 2007 ).
8. A1C blood tests provide long-term measurements of a patient's blood sugar levels by indexing blood glucose levels over the past ninety days . Id.
9. N.Y., N.Y. , HEALTH CODE tit . 24 , § 13 .04 ( 2006 ). See also Diabetes Prevention and Control, supra note 7; Stein, supra note 4.
10. Robert Steinbrook , Facing the Diabetes Epidemic-Mandatory Reporting of Glycosylated Hemoglobin Values in New York City, 354 NEW ENG. J. MED . 545 , 546 ( 2006 ).
11. N.Y., N.Y. , HEALTH CODE tit . 24 , § 13 .03 ( 2006 ). Accord Steinbrook, supra note 10.
12. SILVER & BERGER, supra note 5, at 25.
13. The DOHMH defines poor A1C blood tests as >8.0%. The optimal A1C blood test result is 7.0% . Id. at 27.
14. Id .
15. Diabetes Prevention and Control, supra note 7.
16. The program began in July 2007 and it is unclear how long it will last . Steinbrook, supra note 10 , at 546.
17. Stein , supra note 4.
18. SILVER & BERGER, supra note 5, at 27. A patient is contacted when his A1C test results exceed 8.0%. Id. The initial letter to the patient includes educational resource material about diabetes
40. Id . at 595.
41. Id . at 593.
42. Id .
43. Id .
44. Id . at 599-600.
45. See infra notes 59-62 and accompanying text.
46. In its opinion, the Court “ [r]ecogniz[ed] that in some circumstances [the duty to avoid unwarranted disclosures] arguably has its roots in the Constitution . . . .” Whalen, 429 U.S. at 605. In support of its assertion of an individual interest in avoiding disclosure of personal matters, the Supreme Court cited to Justice Brandeis's dissent in Olmstead v . United States , 227 U.S. 438 , 478 ( 1928 ), Griswold v . Connecticut , 381 U.S. 479 , 483 ( 1965 ), Stanley v . Georgia , 394 U.S. 557 ( 1969 ), and California Bankers Ass'n. v. Schultz , 416 U.S. 21 , 79 ( 1974 ) (Douglas , J., dissenting), id. at 78 (Powell, J., concurring). Whalen , 429 U.S. at 599 n.25. Each of these cases found constitutional protection under the Fourteenth Amendment's due process clause. In support of its assertion of an interest in independence in making certain kinds of important decisions, the Supreme Court cited to Roe v . Wade , 410 U.S. 113 ( 1973 ), Loving v . Virginia , 388 U.S. 1 ( 1967 ), and a string of other similar cases guaranteeing privacy protection under the Fourteenth Amendment . Whalen, 429 U.S. at 600 n.26.
47. Whalen , 429 U.S. at 600.
48. Id . but instead on a claim that the State may not publicize a record of an official act such as an arrest.” Id. The Court concluded that “[n]one of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner .” Id. Paul v. Davis was decided a year before Whalen .
62. In Whalen, the Court cited to four previous court opinions, two of which were dissents, as support for its determination that the nondisclosure of personal matters had legal precedent as a privacy interest . See supra note 46 . Two courts of appeals, however, have questioned the relevance and precedential value of these cases . See J.P. v. DeSanti , 653 F.2d 1080 , 1089 ( 6th Cir . 1981 ) ; Am. Fed'n of Gov't Employees, AFL-CIO v . Dep't of Hous. & Urban Dev., 118 F.3d 786 , 791 -92 (D.C. Cir . 1997 ). But see Bruce E. Falby, Comment, A Constitutional Right to Avoid Disclosure of Personal Matter: Perfecting Privacy Analysis in J.P. v. DeSanti , 71 GEO. L.J. 219 , 232 - 34 ( 1982 ) (arguing that the cases cited by the Supreme Court in Whalen protect against nondisclosure of use).
63. 433 U.S. 425 ( 1977 ).
64. Id . at 429-36.
65. The Court found that Nixon's privacy claim was legitimate only in regard to the “extremely private communications between [Nixon] and, among others, his wife, his daughters, his physician, lawyer, and clergyman .” Id. at 459 (quoting the district court's opinion, 408 F. Supp . 321 , 359). These “extremely private communications” were commingled with, and amounted to only a very small fraction of, the massive volume of materials obtained by the archivists . Id.
66. Id . at 458.
67. Id . at 457 (emphasis added).
68. See , e.g., Plante v . Gonzalez , 575 F.2d 1119 , 1133 ( 5th Cir . 1978 ); Borucki v . Ryan , 827 F.2d 836 , 843 - 44 ( 1st Cir . 1987 ).
69. See , e.g., Borucki , 827 F. 2d at 840 (identifying the individual interest in nondisclosure of records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection .”).
80. Id . at 578. In reaching this conclusion, the Third Circuit cited Detroit Edison Co . v. NLRB , 440 U.S. 301 ( 1979 ), wherein the Supreme Court held that the NLRB had improperly compelled disclosure of employees' scores from psychological aptitude tests . Westinghouse, 638 F.2d at 578 . To reach this conclusion, the Supreme Court weighed the NLRB's need for revealing the information against the strong interest of the company and its employees . Id. (citing Detroit Edison , 440 U.S. at 315).
81. Westinghouse , 638 F.2d at 578.
82. Id .
83. Id . at 579- 80 . The court took particular note of the fact that Westinghouse failed to produce any evidence that the employee medical records contained information so highly sensitive that, if disclosed, employees would surely suffer adverse effects . Id. at 579.
84. Id . at 580.
85. See Barry v. City of New York, 712 F.2d 1554 ( 2d Cir . 1983 ); Walls v . City of Petersburg , 895 F.2d 188 ( 4th Cir . 1990 ); Plante v . Gonzalez , 575 F.2d 1119 ( 5th Cir . 1978 ); Kimberlin v. U.S. Dep't of Justice , 788 F.2d 434 ( 7th Cir . 1986 ); Eagle v . Morgan, 88 F.3d 620 ( 8th Cir . 1996 ); In re Crawford, 194 F.3d 954 ( 9th Cir . 1999 ); Anderson v . Blake , 469 F.3d 910 ( 10th Cir . 2006 ); James v . City of Douglas , 941 F.2d 1539 ( 11th Cir . 1991 ).
86. Doe v. City of New York, 15 F.3d 264 , 267 ( 2d Cir . 1994 ) (“[T]he right to confidentiality includes the right to protection regarding information about the state of one's health .”); Roe v. Sherry , 91 F.3d 1270 , 1274 ( 9th Cir . 1996 ) (recognizing a constitutional protection of privacy for HIV test results ).
110. Id . at 1087. “ The District Court made no attempt to tie the constitutional right 'to have any intimate biographical details protected from exposure by the government' to any particular provision of the Constitution .” Id.
111. Id . at 1088-89.
113. DeSanti, 653 F.2d at 1090.
114. Id . at 1091.
115. Id . at 1090.
116. Id . at 1091.
126. Id . at 793.
127. Id . at 791. “ The Court [in Whalen v. Roe] cited two dissents [in asserting a right to nondisclosure of information], Olmstead v. United States and California Bankers Assn. v. Shultz, neither of which argued for a general constitutional right to privacy in the nondisclosure of information .” Id. at 791-92 (citations omitted).
128. Id . at 793.
129. See supra note 124.
130. AFL-CIO , 118 F.3d at 795.
131. See supra Part III.
132. See , e.g., United States v . Westinghouse Elec. Corp., 638 F.2d 570 ( 3d Cir . 1980 ) (using a balancing approach to assess the right to confidentiality). But see Walls v . City of Petersburg , 895 F.2d 188 ( 4th Cir . 1990 ) (applying a strict scrutiny test).
133. See J.P. v. DeSanti , 653 F.2d 1080 ( 6th Cir . 1981 ) (failing to recognize the right to confidentiality, among other reasons, because doing so would conflict with the Supreme Court's decision in Paul v . Davis). But see Am. Fed'n of Gov't Employees , AFL-CIO v. Dep't of Hous . & Urban Dev ., 118 F. 3d 786 (D.C. Cir . 1997 ) (relying primarily on lack of a well-established right to conclude that a right to confidentiality does not exist ).
134. AFL-CIO , 118 F.3d at 791.
135. Whalen v. Roe , 429 U.S. 589 , 605 ( 1977 ) (emphasis added).
136. See infra note 137; Whalen, 429 U.S. at 608- 09 (Stewart, J., concurring).
137. Whalen , 429 U.S. at 608- 09 . For example, in support of the right to confidentiality, the Supreme Court cites to Justice Brandeis's dissent in Olmstead v . United States , 277 U.S. 438 ( 1928 ). Whalen, 429 U.S. at 599 n.25. In Olmstead, Justice Brandeis argued that federal officers violated Olmstead's Fourth Amendment protection against unwarranted searches and seizures when they wiretapped his telephone conversations . Olmstead , 277 U.S. at 479 (Brandeis, J., dissenting). Invoking the Founding Fathers in support of his assertion , Justice Brandeis wrote:
140. Bruce W. Clark, Note, The Constitutional Right to Confidentiality, 51 GEO. WASH. L. REV. 133 , 135 ( 1982 ); Falby, supra note 62, at 237. In his concurrence in Whalen v. Roe, Justice Brennan suggests that requiring a compelling state interest may be appropriate in assessing the right to confidentiality . Whalen, 429 U.S. at 606 (Brennan, J., concurring) ( “Broad dissemination by state officials of [private] information, however, would clearly implicate constitutionally protected privacy rights, and would presumably be justified only by compelling state interests .”). Indeed, a few of the courts of appeals have adopted such a test . See, e.g., Anderson v . Blake , 469 F.3d 910 , 914 ( 10th Cir . 2006 ) (“Disclosure of [constitutionally] protected information must 'advance a compelling state interest which, in addition, must be accomplished in the least intrusive manner .'”) (citing Mangels v . Pena , 789 F.2d 836 , 839 ( 10th Cir . 1986 )). Justice Stewart rejects Justice Brennan's compelling interest test in his own concurrence . See Whalen , 429 U.S. at 607- 09 (Stewart, J., concurring).
141. See supra note 112.
142. See Clark, supra note 140 , at 142 ( “Reliance on Paul v. Davis in determining the application of the right to confidentiality is inappropriate .”); Falby, supra note 62, at 223 ( “[The Sixth Circuit in DeSanti] erred in ruling the disclosure of the histories 'indistinguishable' from the disclosure of the fact of arrest in Paul [v . Davis].”).
143. “ Although it characterizes interests in avoiding publication of personal information and in autonomous decision making as facets of the right to privacy, the Whalen opinion clearly differentiates the two interests and treats each as giving rise to an independent constitutional claim . ” Clark, supra note 140 , at 142.
144. See supra note 46.
145. See supra note 88. See also Walls v. City of Petersburg , 895 F.2d 188 , 192 ( 4th Cir . 1990 )
151. The Fifth Circuit is the only court of appeals using a balancing test recognizing that “[p]rivacy of personal matters is an interest in and of itself.” Plante v . Gonzalez , 575 F.2d 1119 , 1135 ( 5th Cir . 1978 ).
152. United States v. Westinghouse Elec. Corp., 638 F.2d 570 , 578 ( 3d Cir . 1980 ).
153. Id .
154. The Supreme Court has always held that the right to privacy is not absolute . Roe v. Wade , 410 U.S. 113 , 154 ( 1973 ). There are legitimate reasons for the government to acquire and retain information concerning private citizens . Whalen v. Roe , 429 U.S. 589 , 602 ( 1977 ).
155. O 'Brien v . DiGrazia , 544 F.2d 543 , 545 - 46 ( 1st Cir . 1976 ); Eagle v . Morgan, 88 F.3d 620 , 625 ( 8th Cir . 1996 ).
156. In addition to a lack of protection for medical records, other confidential matters, such as financial records and one's sexual orientation, are also unprotected. Such an outcome is in direct conflict with other courts that have already recognized constitutional protection for these matters . See Sterling v. Borough of Minersville , 232 F.3d 190 , 196 ( 3d Cir . 2000 ) (sexual orientation); Plante v . Gonzalez , 575 F.2d 1119 , 1136 ( 5th Cir . 1978 ) (financial records).
157. It would seem remiss for the Supreme Court in Whalen v. Roe to take the time to distinguish between the right to confidentiality and the right to autonomy only to provide that they are, in fact, the same type of right and thus, afforded the same constitutional protection. Indeed, the Supreme Court could not have intended such a result because it refrained from applying strict scrutiny in Whalen v. Roe, which it would have done had the New York State Controlled Substances Act implicated a fundamental right . Roe v. Wade , 410 U.S. 113 , 155 ( 1973 ) (“Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest . . . .'”).
∗ B.A. Slavic Languages & Literature ( 2005 ), Duke University; J.D. Candidate ( 2008 ), Washington University School of Law. I would like to thank Jessica Golby for her advice and counsel throughout the writing of this Note .