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Constitutional Right to Privacy

The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy. Because the Supreme Court has found that a fundamental right of privacy exists as to medical information about a person, private causes of action (against defendants other than federal or state entities) also exist for alleged violations of privacy rights (e.g., “invasion of privacy”). This right would extend to the privacy of any medical information contained in medical records.

But even that right is not absolute, and must be weighed against the state or federal, or outside interest at stake. For example, in Whalen v. Roe, 429 U.S. 589 (1977), a group of physicians joined patients in a lawsuit challenging the constitutionality of a New York statute that required physicians to report to state authorities the identities of patients receiving Schedule II drugs (controlled substances). The physicians alleged that such information was protected by doctor-patient confidentiality, and their patients alleged that such disclosure was an invasion of their constitutional right to privacy. The Supreme Court did not disagree with the lower court’s finding that “the intimate nature of a patient’s concern about his bodily ills and the medication he takes … are protected by the constitutional right to privacy.” However, the high court concluded (after balancing the state’s interests) that “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.”

Inside Constitutional Right to Privacy