United States Supreme Court

WHALEN v. ROE(1977)
No. 75-839
Argued: October 13, 1976 Decided: February 22, 1977
Responding to a concern that drugs were being diverted into unlawful channels, the New York Legislature in 1972
enacted a statutory scheme to correct defects in the previous law. The 1972 statute classifies potentially harmful drugs
and provides that prescriptions for the category embracing the most dangerous legitimate drugs (Schedule II) be
prepared on an official form. One copy of the form, which requires identification of the prescribing physician,
dispensing pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the State Health
Department, where pertinent data are recorded on tapes for computer processing. All forms are retained for a five-
year period under a system to safeguard their security, and are thereafter destroyed. Public disclosure of the patient's
identity is prohibited, and access to the files is confined to a limited number of health department and investigatory
personnel. Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing doctors,
brought this action challenging the constitutionality of the Schedule II patient-identification requirements. Holding
that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the
Act's patient-identification provisions invaded that zone with "a needlessly broad sweep," since appellant had been
unable to demonstrate the need for those requirements, a three-judge District Court enjoined the enforcement of the
challenged provisions. Held:

1. The patient-identification requirement is a reasonable exercise of the State's broad police powers, and the District
Court's finding that the necessity for the requirement had not been proved is not a sufficient reason for holding the
statute unconstitutional. Pp. 596-598.
2. Neither the immediate nor the threatened impact of the patient-identification requirement on either the reputation
or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion
of any right or liberty protected by the Fourteenth Amendment. Pp. 598-604.
(a) The possibility that a doctor or pharmacist may voluntarily [429 U.S. 589, 590] reveal information on a prescription
form, which existed under prior law, is unrelated to the computerized data bank. Pp. 600-601.
(b) There is no support in the record or in the experience of the two States that the New York program emulates for
assuming that the statute's security provisions will be improperly administered. P. 601.
(c) The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire
patient-identification program. Pp. 601-602.
(d) Though it is argued that concern about disclosure may induce patients to refuse needed medication, the 1972
statute does not deprive the public of access to Schedule II drugs, as is clear from the fact that about 100,000
prescriptions for such drugs were filed each month before the District Court's injunction was entered. Pp. 602-603.
3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free from unwarranted
state interference is without merit, whether it refers to the statute's impact on their own procedures, which is no
different from the impact of the prior statute, or refers to the patients' concern about disclosure that the Court has
rejected (see 2 (d), supra). P. 604.
403 F. Supp. 931, reversed.
STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., post, p. 606, and STEWART, J., post, p. 607,
filed concurring opinions.

A. Seth Greenwald, Assistant Attorney General of New York, argued the cause for appellant. With him on the brief
were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

Michael Lesch argued the cause for appellees Roe et al. With him on the brief was Solomon Z. Ferziger. H. Miles Jaffe
argued the cause for appellees Patient et al. With him on the brief were Melvin L. Wulf and John H. F. Shattuck. *

[ Footnote * ] Evelle J. Younger, Attorney General of California, Jack R. Winkler, Chief Assistant Attorney General, S.
Clark Moore, Assistant Attorney General, and Shunji Asari and Owen Lee Kwong, Deputy Attorneys General, [429 U.S.
589, 591] filed a brief for the State of California as amicus curiae urging reversal.

Robert Plotkin and Paul R. Friedman filed a brief for the National Association of Mental Health et al. as amici curiae
urging affirmance. [429 U.S. 589, 591]

MR. JUSTICE STEVENS delivered the opinion of the Court.

The constitutional question presented is whether the State of New York may record, in a centralized computer file,
the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for
which there is both a lawful and an unlawful market.

The District Court enjoined enforcement of the portions of the New York State Controlled Substances Act of
1972 1 which require such recording on the ground that they violate appellees' constitutionally protected rights of
privacy. 2 We noted probable jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907 , and now
reverse. 3

Many drugs have both legitimate and illegitimate uses. In response to a concern that such drugs were being diverted
into unlawful channels, in 1970 the New York Legislature created a special commission to evaluate the State's drug-
control laws. 4 The commission found the existing laws deficient [429 U.S. 589, 592] in several respects. There was
no effective way to prevent the use of stolen or revised prescriptions, to prevent unscrupulous pharmacists from
repeatedly refilling prescriptions, to prevent users from obtaining prescriptions from more than one doctor, or to
prevent doctors from over-prescribing, either by authorizing an excessive amount in one prescription or by giving one
patient multiple prescriptions. 5 In drafting new legislation to correct such defects, the commission consulted with
enforcement officials in California and Illinois where central reporting systems were being used effectively. 6

The new New York statute classified potentially harmful drugs in five schedules. 7 Drugs, such as heroin, which are
highly abused and have no recognized medical use, are in Schedule I; they cannot be prescribed. Schedules II through
V include drugs which have a progressively lower potential for abuse but also have a recognized medical use. Our [429
U.S. 589, 593] concern is limited to Schedule II, which includes the most dangerous of the legitimate drugs. 8

With an exception for emergencies, the Act requires that all prescriptions for Schedule II drugs be prepared by the
physician in triplicate on an official form. 9 The completed form identifies the prescribing physician; the dispensing
pharmacy; the drug and dosage; and the name, address, and age of the patient. One copy of the form is retained by
the physician, the second by the pharmacist, and the third is forwarded to the New York State Department of Health
in Albany. A prescription made on an official form may not exceed a 30-day supply, and may not be refilled. 10

The District Court found that about 100,000 Schedule II prescription forms are delivered to a receiving room at the
Department of Health in Albany each month. They are sorted, coded, and logged and then taken to another room
where the data on the forms is recorded on magnetic tapes for processing by a computer. Thereafter, the forms are
returned to the receiving room to be retained in a vault for a five-year period and then destroyed as required by the
statute. 11 [429 U.S. 589, 594] The receiving room is surrounded by a locked wire fence and protected by an alarm
system. The computer tapes containing the prescription data are kept in a locked cabinet. When the tapes are used,
the computer is run "off-line," which means that no terminal outside of the computer room can read or record any
information. Public disclosure of the identity of patients is expressly prohibited by the statute and by a Department of
Health regulation. 12 Willful violation [429 U.S. 589, 595] of these prohibitions is a crime punishable by up to one year
in prison and a $2,000 fine. 13 At the time of trial there were 17 Department of Health employees with access to the
files; in addition, there were 24 investigators with authority to investigate cases of overdispensing which might be
identified by the computer. Twenty months after the effective date of the Act, the computerized data had only been
used in two investigations involving alleged overuse by specific patients.

A few days before the Act became effective, this litigation was commenced by a group of patients regularly receiving
prescriptions for Schedule II drugs, by doctors who prescribe such drugs, and by two associations of
physicians. 14 After various preliminary proceedings, 15 a three-judge District Court conducted a one-day trial.
Appellees offered evidence tending to prove that persons in need of treatment with Schedule II drugs will from time
to time decline such treatment because of their fear that the misuse of the computerized data will cause them to be
stigmatized as "drug addicts." 16 [429 U.S. 589, 596]

The District Court held that "the doctor-patient relationship is one of the zones of privacy accorded constitutional
protection" and that the patient-identification provisions of the Act invaded this zone with "a needlessly broad
sweep," and enjoined enforcement of the provisions of the Act which deal with the reporting of patients' names and
addresses. 17

I
The District Court found that the State had been unable to demonstrate the necessity for the patient-identification
requirement on the basis of its experience during the first 20 months of administration of the new statute. There was
a time when that alone would have provided a basis for invalidating the statute. Lochner v. New York, 198 U.S. 45 ,
involved legislation making it a crime for a baker to permit his employees to work more than 60 hours in a week. In an
opinion no longer regarded as authoritative, the Court held the statute unconstitutional as "an unreasonable,
unnecessary and arbitrary interference with the right of the individual to his personal liberty . . . ." Id., at 56. [429 U.S.
589, 597]

The holding in Lochner has been implicitly rejected many times. 18 State legislation which has some effect on individual
liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in
part. 19 For we have frequently recognized that individual States have broad latitude in experimenting with possible
solutions to problems of vital local concern. 20

The New York statute challenged in this case represents a considered attempt to deal with such a problem. It is
manifestly the product of an orderly and rational legislative decision. It was recommended by a specially appointed
commission which held extensive hearings on the proposed legislation, and drew on experience with similar programs
in other States. There surely was nothing unreasonable in the assumption that the patient-identification requirement
might [429 U.S. 589, 598] aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For
the requirement could reasonably be expected to have a deterrent effect on potential violators 21 as well as to aid in
the detection or investigation of specific instances of apparent abuse. At the very least, it would seem clear that the
State's vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with
new techniques for control. 22 For if an experiment fails - if in this case experience teaches that the patient-
identification requirement results in the foolish expenditure of funds to acquire a mountain of useless information -
the legislative process remains available to terminate the unwise experiment. It follows that the legislature's
enactment of the patient-identification requirement was a reasonable exercise of New York's broad police powers.
The District Court's finding that the necessity for the requirement had not been proved is not, therefore, a sufficient
reason for holding the statutory requirement unconstitutional.

II
Appellees contend that the statute invades a constitutionally protected "zone of privacy." 23 The cases
sometimes [429 U.S. 589, 599] characterized as protecting "privacy" have in fact involved at least two different kinds
of interests. 24 One is the individual interest in avoiding disclosure of personal matters, 25 and another is the interest
in independence in making certain [429 U.S. 589, 600] kinds of important decisions.26 Appellees argue that both of
these interests are impaired by this statute. The mere existence in readily available form of the information about
patients' use of Schedule II drugs creates a genuine concern that the information will become publicly known and that
it will adversely affect their reputations. This concern makes some patients reluctant to use, and some doctors
reluctant to prescribe, such drugs even when their use is medically indicated. It follows, they argue, that the making
of decisions about matters vital to the care of their health is inevitably affected by the statute. Thus, the statute
threatens to impair both their interest in the nondisclosure of private information and also their interest in making
important decisions independently.

We are persuaded, however, that the New York program does not, on its face, pose a sufficiently grievous threat to
either interest to establish a constitutional violation.

Public disclosure of patient information can come about in three ways. Health Department employees may violate the
statute by failing, either deliberately or negligently, to maintain proper security. A patient or a doctor may be accused
of a violation and the stored data may be offered in evidence in a judicial proceeding. Or, thirdly, a doctor, a
pharmacist, or the patient may voluntarily reveal information on a prescription form.

The third possibility existed under the prior law and is entirely unrelated to the existence of the computerized[429
U.S. 589, 601] data bank. Neither of the other two possibilities provides a proper ground for attacking the statute as
invalid on its face. There is no support in the record, or in the experience of the two States that New York has
emulated, for an assumption that the security provisions of the statute will be administered improperly. 27 And the
remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide
inadequate protection [429 U.S. 589, 602] against unwarranted disclosures is surely not a sufficient reason for
invalidating the entire patient-identification program. 28

Even without public disclosure, it is, of course, true that private information must be disclosed to the authorized
employees of the New York Department of Health. Such disclosures, however, are not significantly different from
those that were required under the prior law. Nor are they meaningfully distinguishable from a host of other
unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals'
concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless,
disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public
health agencies are often an essential part of modern medical practice even when the disclosure may reflect
unfavorably on the character of the patient. 29 Requiring such disclosures to representatives of the State having
responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.

Appellees also argue, however, that even if unwarranted disclosures do not actually occur, the knowledge that the
information is readily available in a computerized file creates a genuine concern that causes some persons to decline
needed [429 U.S. 589, 603] medication. The record supports the conclusion that some use of Schedule II drugs has
been discouraged by that concern; it also is clear, however, that about 100,000 prescriptions for such drugs were
being filled each month prior to the entry of the District Court's injunction. Clearly, therefore, the statute did not
deprive the public of access to the drugs.

Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his
physician, to acquire and to use needed medication. Although the State no doubt could prohibit entirely the use of
particular Schedule II drugs, 30 it has not done so. This case is therefore unlike those in which the Court held that a
total prohibition of certain conduct was an impermissible deprivation of liberty. Nor does the State require access to
these drugs to be conditioned on the consent of any state official or other third party. 31Within dosage limits which
appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient.
We hold that neither the immediate nor the threatened impact of the patient-identification requirements in the New
York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom
Schedule II drugs are medically indicated is sufficient to constitute an [429 U.S. 589, 604] invasion of any right or
liberty protected by the Fourteenth Amendment. 32

III
The appellee doctors argue separately that the statute impairs their right to practice medicine free of unwarranted
state interference. If the doctors' claim has any reference to the impact of the 1972 statute on their own procedures,
it is clearly frivolous. For even the prior statute required the doctor to prepare a written prescription identifying the
name and address of the patient and the dosage of the prescribed drug. To the extent that their claim has reference
to the possibility that the patients' concern about disclosure may induce them to refuse needed medication, the
doctors' claim is derivative from, and therefore no stronger than, the patients'. 33 Our rejection of their claim
therefore disposes of the doctors' as well. [429 U.S. 589, 605]

IV
A final word about issues we have not decided. 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. 34 The collection of taxes, the distribution of welfare and social security benefits, the supervision of public
health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation
of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if
disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant
statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty
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. We
therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure [429
U.S. 589, 606] of accumulated private data - whether intentional or unintentional - or by a system that did not contain
comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty
protected by the Fourteenth Amendment.

Reversed.
U.S. Supreme Court

Whalen v. Roe, 429 U.S. 589 (1977)

Whalen v. Roe

No. 75-839

Syllabus

Responding to a concern that drugs were being diverted into unlawful channels, the New York Legislature, in 1972,
enacted a statutory scheme to correct defects in the previous law. The 1972 statute classifies potentially harmful drugs
and provides that prescriptions for the category embracing the most dangerous legitimate drugs (Schedule II) be
prepared on an official form. One copy of the form, which requires identification of the prescribing physician,
dispensing pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the State Health
Department, where pertinent data are recorded on tapes for computer processing. All forms are retained for a five-
year period under a system to safeguard their security, and are thereafter destroyed. Public disclosure of the patient's
identity is prohibited, and access to the files is confined to a limited number of health department and investigatory
personnel. Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing doctors,
brought this action challenging the constitutionality of the Schedule II patient identification requirements. Holding
that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the
Act's patient identification provisions invaded that zone with "a needlessly broad sweep," since appellant had been
unable to demonstrate the need for those requirements, a three-judge District Court enjoined the enforcement of the
challenged provisions.

Held:

1. The patient identification requirement is a reasonable exercise of the State's broad police powers, and the District
Court's finding that the necessity for the requirement had not been proved is not a sufficient reason for holding the
statute unconstitutional. Pp. 429 U. S. 596-598.

2. Neither the immediate nor the threatened impact of the patient identification requirement on either the reputation
or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion
of any right or liberty protected by the Fourteenth Amendment. Pp. 429 U. S. 598-604.

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

Page 429 U. S. 590

reveal information on a prescription form, which existed under prior law, is unrelated to the computerized data bank.
Pp. 429 U. S. 600-601.

(b) There is no support in the record or in the experience of the two States that the New York program emulates for
assuming that the statute's security provisions will be improperly administered. P. 429 U. S. 601.

(c) The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire
patient identification program. Pp. 429 U. S. 601-602.

(d) Though it is argued that concern about disclosure may induce patients to refuse needed medication, the 1972
statute does not deprive the public of access to Schedule II drugs, as is clear from the fact that about 100,000
prescriptions for such drugs were filed each month before the District Court's injunction was entered. Pp. 429 U. S.
602-603.

3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free from unwarranted
state interference is without merit, whether it refers to the statute's impact on their own procedures, which is no
different from the impact of the prior statute, or refers to the patients' concern about disclosure that the Court has
rejected (see 2(d), supra). P. 429 U. S. 604.

403 F.Supp. 931, reversed.

STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., post, p. 429 U. S. 606, and STEWART,
J., post, p. 429 U. S. 607, filed concurring opinions.