U.S. Supreme Court Whalen v. Roe, 429
U.S. 589 (1977) Whalen v. Roe No. 75-839 Argued October 13,
1976 Decided February 22,
1977 429
U.S. 589 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK 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. Page 429 U. S. 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 [ Footnote 1 ] which require such recording on
the ground that they violate appellees' constitutionally protected
rights of privacy. [ Footnote 2 ]
We noted probable jurisdiction of the appeal by the Commissioner of
Health, 424 U.S. 907, and now reverse. [ Footnote 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.
[ Footnote 4 ] The commission
found the existing laws deficient Page 429 U. S. 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 overprescribing, either by authorizing an
excessive amount in one prescription or by giving one patient
multiple prescriptions. [ Footnote
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. [ Footnote 6 ]

															The new New York statute classified potentially harmful drugs in
five schedules. [ Footnote 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 Page 429 U. S. 593 concern is limited to Schedule II, which includes the most
dangerous of the legitimate drugs. [ Footnote 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. [ Footnote 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. [ Footnote 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. [ Footnote 11 ] Page 429 U. S. 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.
[ Footnote 12 ] Willful
violation Page 429 U. S. 595 of these prohibitions is a crime punishable by up to one year in
prison and a $2,000 fine. [ Footnote 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. [ Footnote 14 ] After various preliminary proceedings,
[ Footnote 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." [ Footnote 16 ] Page 429 U. S. 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. [ Footnote 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 198 U. S.
56 . Page 429 U. S. 597 The holding in Lochner has been implicitly rejected
many times. [ Footnote 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 pat. [ Footnote 19 ] For we have frequently recognized
that individual States have broad latitude in experimenting with
possible solutions to problems of vital local concern. [ Footnote 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 Page 429 U. S. 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,
[ Footnote 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. [ Footnote 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." [ Footnote 23 ] The cases sometimes Page 429 U. S. 599 characterized as protecting "privacy" have in fact involved at
least two different kinds of interests. [ Footnote 24 ] One is the individual interest in
avoiding disclosure of personal matters, [ Footnote 25 ] and another is the interest in
independence in making certain Page 429 U. S. 600 kinds of important decisions. [ Footnote 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 Page 429 U. S. 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.
[ Footnote 27 ] And the remote
possibility that judicial supervision of the evidentiary use of
particular items of stored information will provide inadequate
protection Page 429 U. S. 602 against unwarranted disclosures is surely not a sufficient
reason for invalidating the entire patient identification program.
[ Footnote 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. [ Footnote 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 Page 429 U. S. 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,
[ Footnote 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. [ Footnote 31 ] Within 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 Page 429 U. S. 604 invasion of any right or liberty protected by the Fourteenth
Amendment. [ Footnote 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'. [ Footnote 33 ] Our rejection of their claim therefore
disposes of the doctors' as well. Page 429 U. S. 605 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. [ Footnote 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 Page 429 U. S. 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. [ Footnote 1 ]

															1972 N.Y.Laws, c. 878; N.Y.Pub.Health Law § 3300 et
seq. (McKinney, Supp. 1971977) (hereafter Pub.Health Law,
except as indicated in n 13, infra ).

															[ Footnote 2 ] Roe v. Ingraham, 403 F.
Supp. 931 (SDNY 1975). Earlier, the District Court had
dismissed the complaint for want of a substantial federal question. Roe v. Ingraham, 357 F.
Supp. 1217 (1973). The Court of Appeals reversed, holding that
a substantial constitutional question was presented, and therefore
a three-judge court was required. Roe v. Ingraham, 480
F.2d 102 (CA2 1973).

															[ Footnote 3 ]

															Jurisdiction is conferred by 28 U.S.C. §§ 1253, 2101(b).

															[ Footnote 4 ]

															1970 N.Y.Laws, c. 474, amended by 1971 N.Y.Laws, c. 7. The
Temporary State Commission to Evaluate the Drug Laws (hereafter
T.S.C.) issued two reports which, it is stipulated, constitute part
of the legislative history of the Act. The reports are the Interim
Report of the Temporary State Commission to Evaluate the Drug Laws
(State of New York, Legislative Doc. No. 10, Jan.1972); and the
Second Interim Report of the Temporary State Commission to Evaluate
the Drug Laws (Albany, N.Y. Apr. 5, 1971).

															[ Footnote 5 ] Id. at 3-5.

															[ Footnote 6 ]

															The Chairman of the T.S.C. summarized its findings:

															"Law enforcement officials in both California and Illinois have
been consulted in considerable depth about the use of multiple
prescriptions, since they have been using them for a considerable
period of time. They indicate to us that they are not only a useful
adjunct to the proper identification of culpable professional and
unscrupulous drug abusers, but that they also give a reliable
statistical indication of the pattern of drug flow throughout their
states: information sorely needed in this state to stem the tide of
diversion of lawfully manufactured controlled substances."

															Memorandum of Chester R. Hardt, App. 87a-88a.

															T.S.C. Interim Report 21; T.S.C. Second Interim Report 27-44.
Cal.Health & Safety Code §§ 11158, 11160, 11167 (West, 1975 and
Supp. 1976); Ill.Ann.Stat., c. 562, §§ 1308, 1311, 1312(a) (Supp.
1977).

															[ Footnote 7 ]

															These five schedules conform in all material aspects with the
drug schedules in the Federal Comprehensive Drug Abuse Prevention
and Control Act of 1970. 21 U.S.C. § 801 et seq. [ Footnote 8 ]

															These include opium and opium derivatives, cocaine, methadone,
amphetamines, and methaqualone. Pub.Health Law § 3306. These drugs
have accepted uses in the amelioration of pain and in the treatment
of epilepsy, narcolepsy, hyperkinesia, schizo-affective disorders,
and migraine headaches.

															[ Footnote 9 ]

															Pub.Health Law §§ 3334, 3338. These forms are prepared and
issued by the Department of Health, numbered serially, in groups of
100 forms at $10 per group (10 cents per triplicate form). New York
State Health Department -- Official New York State Prescription,
Form N77 (8/72).

															[ Footnote 10 ]

															Pub.Health Law §§ 3331-3333, 3339. The pharmacist normally
forwards the prescription to Albany after filling it. If the
physician dispenses the drug himself, he must forward two copies of
the prescription to the Department of Health, § 3331(6).

															[ Footnote 11 ]

															Pub.Health Law § 3370(3) , 1974 N.Y.Laws, c. 965, § 16. The
physician and the pharmacist are required to retain their copies
for five years also, Pub. Health Law §§ 3331(6), 3332(4), 3333(4),
but they are not required to destroy then.

															[ Footnote 12 ]

															Section 3371 of the Pub.Health Law states:

															"1. No person, who has knowledge by virtue of his office of the
identity of a particular patient or research subject, a
manufacturing process, a trade secret or a formula shall disclose
such knowledge, or any report or record thereof, except:"

															"(a) to another person employed by the department, for purposes
of executing provisions of this article; or"

															"(b) pursuant to judicial subpoena or court order in a criminal
investigation or proceeding; or"

															"(c) to an agency, department of government, or official board
authorized to regulate, license or otherwise supervise a person who
is authorized by this article to deal in controlled substances, or
in the course of any investigation or proceeding by or before such
agency, department or board; or"

															"(d) to a central registry established pursuant to this
article."

															"2. In the course of any proceeding where such information is
disclosed, except when necessary to effectuate the rights of a
party to the proceeding, the court or presiding officer shall take
such action as is necessary to insure that such information, or
record or report of such information is not made public."

															Pursuant to its statutory authority, the Department of Health
has promulgated regulations in respect of confidentiality as
follows:

															"No person who has knowledge by virtue of his office of the
identity of a particular patient or research subject, a
manufacturing process, a trade secret or a formula shall disclose
such knowledge, or any report or record thereof, except:"

															"(a) to another person who by virtue of his office as an
employee of the department is entitled to obtain such information;
or"

															"(b) pursuant to judicial subpoena or court order in a criminal
investigation or proceedings; or"

															"(c) to an agency, department of government, or official board
authorized to regulate, license or otherwise supervise a person who
is authorized by article 33 of the Public Health Law to deal in
controlled substances, or in the course of any investigation or
proceeding by or before such agency, department or board; or"

															"(d) to a central registry established pursuant to article 33 of
the Public Health Law."

															10 N.Y.C.R.R. § 80.107 (1973).

															[ Footnote 13 ]

															N.Y.Pub.Health Law § 12-b(2) (McKinney 1971).

															[ Footnote 14 ]

															The physicians' associations, Empire State Physicians Guild,
Inc. and the American Federation of Physicians and Dentists,
articulate no claims which are severable from the claims of the
named physicians. We therefore find it unnecessary to consider
whether the organizations themselves may have standing to maintain
these suits.

															[ Footnote 15 ]

															In addition to the appeal from the original dismissal of the
complaint, the parties took depositions which were made a part of
the record and entered into a stipulation of facts.

															[ Footnote 16 ]

															Two parents testified that they were concerned that their
children would be stigmatized by the State's central filing system.
One child had been taken off his Schedule II medication because of
this concern. Three adult patients testified that they feared
disclosure of their names would result from central filing of
patient identifications. One of them now obtains his drugs in
another State. The other two continue to receive Schedule II
prescriptions in New York, but continue to fear disclosure and
stigmatization. Four physicians testified that the prescription
system entrenches on patients' privacy, and that each had observed
a reaction of shock, fear, and concern on the part of their
patients whom they had informed of the plan. One doctor refuses to
prescribe Schedule II drugs for his patients. On the other hand,
over 100,000 patients per month have been receiving Schedule II
drug prescriptions without their objections, if any, to central
filing having come to the attention of the District Court. The
record shows that the provisions of the Act were brought to the
attention of the section on psychiatry of the New York State
Medical Society (App. 166a), but that body apparently declined to
support this suit.

															[ Footnote 17 ]

															Pub.Health Law §§ 3331(6), 3332(2)(a), 3333(4).

															[ Footnote 18 ] Roe v. Wade, 410 U. S. 113 , 410 U. S. 117 ; Griswold v. Connecticut, 381 U. S. 479 , 381 U. S.
481 -482; Ferguson v. Skrupa, 372 U.
S. 726 , 372 U. S.
729 -730; FHA v. The Darlington, Inc., 358 U. S. 84 , 358 U. S.
91 -92.

															[ Footnote 19 ]

															"We are not concerned, however, with the wisdom, need, or
appropriateness of the legislation." Olsen v. Nebraska ex rel.
Western Reference & Bond Assn., 313 U.
S. 236 , 313 U. S.
246 .

															[ Footnote 20 ]

															Mr. Justice Brandeis' classic statement of the proposition
merits reiteration:

															"To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the Nation. It is one of the
happy incidents of the federal system that a single courageous
State may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the rest of
the country. This Court has the power to prevent an experiment. We
may strike down the statute which embodies it on the ground that,
in our opinion, the measure is arbitrary, capricious or
unreasonable. We have power to do this, because the due process
clause has been held by the Court applicable to matters of
substantive law as well as to matters of procedure. But in the
exercise of this high power, we must be ever on our guard, lest we
erect our prejudices into legal principles. If we would guide by
the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285 U.
S. 262 , 285 U. S. 311 (dissenting opinion) (footnote omitted).

															[ Footnote 21 ]

															The absence of detected violations does not, of course,
demonstrate that a statute has no significant deterrent effect.

															"From the beginning of civilized societies, legislators and
judges have acted on various unprovable assumptions. Such
assumptions underlie much lawful state regulation of commercial and
business affairs. . . ." Paris Adult Theatre I v. Slaton, 413 U. S.
49 , 413 U. S. 61 (citations omitted).

															"Nothing in the Constitution prohibits a State from reaching . .
. a conclusion and acting on it legislatively simply because there
is no conclusive evidence or empirical data." Id. at 413 U. S.
63 .

															[ Footnote 22 ]

															"Such regulation, it can be assumed, could take a variety of
valid forms." Robinson v. California, 370 U.
S. 660 , 370 U. S. 664 . Cf. Minnesota ex rel. Whipple v. Martinson, 256 U. S.
41 , 256 U. S. 45 ; Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S.
261 -262.

															[ Footnote 23 ]

															As the basis for the constitutional claim, they rely on the
shadows cast by a variety of provisions in the Bill of Rights.
Language in prior opinions of the Court or its individual Justices
provides support for the view that some personal rights "implicit
in the concept of ordered liberty" ( see Palko v.
Connecticut, 302 U. S. 319 , 302 U. S. 325 ,
quoted in Roe v. Wade, 410 U.S. at 410 U. S.
152 ), are so "fundamental" that an undefined penumbra
may provide them with an independent source of constitutional
protection. In Roe v. Wade, however, after carefully
reviewing those cases, the Court expressed the opinion that the
"right of privacy" is founded in the Fourteenth Amendment's concept
of personal liberty, id. at 410 U. S.
152 -153.

															"This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment's reservation of rights to the
people, is broad enough to encompass a woman's decision whether or
not to terminate her pregnancy." Id. at 410 U. S. 153 (emphasis added). See also id. at 410 U. S.
168 -171 (STEWART, J., concurring); Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 500 (Harlan, J., concurring in judgment).

															[ Footnote 24 ]

															Professor Kurland has written:

															"The concept of a constitutional right of privacy still remains
largely undefined. There are at least three facets that have been
partially revealed, but their form and shape remain to be fully
ascertained. The first is the right of the individual to be free in
his private affairs from governmental surveillance and intrusion.
The second is the right of an individual not to have his private
affairs made public by the government. The third is the right of an
individual to be free in action, thought, experience, and belief
from governmental compulsion."

															The private I, the University of Chicago Magazine 7, 8 (autumn
1976). The first of the facets which he describes is directly
protected by the Fourth Amendment; the second and third correspond
to the two kinds of interests referred to in the text.

															[ Footnote 25 ]

															In his dissent in Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 ,
Mr. Justice Brandeis characterized "the right to be let alone" as
"the right most valued by civilized men"; in Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 483 ,
the Court said: "[T]he First Amendment has a penumbra where privacy
is protected from governmental intrusion." See also Stanley v.
Georgia, 394 U. S. 557 ; California Bankers Assn. v. Shultz, 416 U. S.
21 , 416 U. S. 79 (Douglas, J., dissenting); id. at 416 U. S. 78 (POWELL, J., concurring).

															[ Footnote 26 ] Roe v. Wade, supra; Doe v. Bolton, 410 U.
S. 179 ; Loving v. Virginia, 388 U. S.
1 ; Griswold v. Connecticut, supra; Pierce v. Society
of Sisters, 268 U. S. 510 ; Meyer v. Nebraska, 262 U. S. 390 ; Allgeyer v. Louisiana, 165 U. S. 578 . In Paul v. Davis, 424 U. S. 693 , 424 U. S. 713 ,
the Court characterized these decisions as dealing with

															"matters relating to marriage, procreation, contraception,
family relationships, and childrearing and education. In these
areas, it has been held that there are limitations on the States'
power to substantively regulate conduct."

															[ Footnote 27 ]

															The T.S.C.'s independent investigation of the California and
Illinois central filing systems failed to reveal a single case of
invasion of a patient's privacy. T.S.C. Memorandum of Chester R.
Hardt, Chairman, Re: Triplicate Prescriptions, New York State
Controlled Substances Act, effective Apr. 1, 1973 (reproduced at
App. 88a).

															Just last Term, in Buckley v. Valeo, 424 U. S.
1 , we rejected a contention that the reporting
requirements of the Federal Election Campaign Act of 1971 violated
the First Amendment rights of those who contribute to minority
parties:

															"But no appellant in this case has tendered record evidence. . .
. Instead, appellants primarily rely on 'the clearly articulated
fears of individuals, well experienced in the political process.'.
. . At best, they offer the testimony of several minor party
officials that one or. two persons refused to make contributions
because of the possibility of disclosure. On this record, the
substantial public interest in disclosure identified by the
legislative history of this Act outweighs the harm generally
alleged."

															424 U.S. at 424 U. S. 71 -72
(footnote omitted) Here, too, appellees urge on us "clearly
articulated fears" about the pernicious effects of disclosure. But
this requires us to assume even more than that we refused to do in Buckley. There, the disclosures were to be made in
accordance with the statutory scheme. Appellees' disclosures could
only be made if the statutory scheme were violated as
described, supra at 429 U. S.
594 -595.

															The fears of parents on behalf of their pre-adolescent children
who are receiving amphetamines in the treatment of hyperkinesia are
doubly premature. Not only must the Act's nondisclosure provisions
be violated in order to stigmatize the children as they enter adult
life, but the provisions requiring destruction of all prescription
records after five years would have to be ignored, see n 11, supra, and
accompanying text.

															[ Footnote 28 ]

															The physician-patient evidentiary privilege is unknown to the
common law. In States where it exists by legislative enactment, it
is subject to many exceptions and to waiver for many reasons. C.
McCormick, Evidence §§ 98, 101-104 (2d ed.1972); 8 J. Wigmore,
Evidence § 2380, nn. 3, 5, 6, §§ 2388-2391 (McNaughton rev.
ed.1961).

															[ Footnote 29 ]

															Familiar examples are statutory reporting requirements relating
to venereal disease, child abuse, injuries caused by deadly
weapons, and certifications of fetal death. Last Term we upheld the
recordkeeping requirements of the Missouri abortion laws against a
challenge based on the protected interest in making the abortion
decision free of governmental intrusion, Planned Parenthood of
Central Missouri v. Danforth, 428 U. S.
52 , 428 U. S.
79 -81.

															[ Footnote 30 ]

															It is, of course, well settled that the State has broad police
powers in regulating the administration of drug by the health
professions. Robinson v. California, 370 U.S. at 370 U. S.
664 -665; Minnesota ex rel. Whipple v.
Martinson, 256 U.S. at 256 U. S. 45 ; Barsky v. Board of Regents, 347 U.
S. 442 , 347 U. S.
449 .

															[ Footnote 31 ]

															In Doe v. Bolton, 410 U. S. 179 , for
instance, the constitutionally defective statute required the
written concurrence of two state-licensed physicians, other than
the patient's personal physician, before an abortion could be
performed, and the advance approval of a committee of not less than
three members of the hospital staff where the procedure was to be
performed, regardless of whether the committee members had a
physician-patient relationship with the woman concerned.

															[ Footnote 32 ]

															The Roe appellees also claim that a constitutional
privacy right emanates from the Fourth Amendment, citing language
in Terry v. Ohio, 392 U. S. 1 , 392 U. S. 9 , at a
point where it quotes from Katz v. United States, 389 U. S. 347 . But
those cases involve affirmative, unannounced, narrowly focused
intrusions into individual privacy during the course of criminal
investigations. We have never carried the Fourth Amendment's
interest in privacy as far as the Roe appellees would have
us. We decline to do so now.

															Likewise the Patient appellees derive a right to individual
anonymity from our freedom of association cases such as Bates
v. Little Rock, 361 U. S. 516 , 361 U. S.
522 -523, and NAACP v. Alabama, 357 U.
S. 449 , 357 U. S. 462 .
But those cases protect "freedom of association for the purpose of
advancing ideas and airing grievances," Bates v. Little Rock,
supra at 357 U. S. 523 ,
not anonymity in the course of medical treatment. Also, in those
cases there was an uncontroverted showing of past harm through
disclosure, NAACP v. Alabama, supra at 361 U. S. 462 ,
an element which is absent here. Cf. Schulman v. New York City Health & Hospitals
Corp., 38 N.Y.2d 234, 342 N.E.2d 501 (1975).

															[ Footnote 33 ]

															The doctors rely on two references to a physician's right to
administer medical care in the opinion in Doe v. Bolton, 410 U.S. at 410 U. S.
197 -198, and 199. Nothing in that case suggests that a
doctor's right to administer medical care has any greater strength
than his patient's right to receive such care. The constitutional
right vindicated in Doe was the right of a pregnant woman
to decide whether or not to bear a child without unwarranted state
interference. The statutory restrictions on the abortion procedures
were invalid because they encumbered the woman's exercise of that
constitutionally protected right by placing obstacles in the path
of the doctor upon whom she was entitled to rely for advice in
connection with her decision. If those obstacles had not impacted
upon the woman's freedom to make a constitutionally protected
decision, if they had merely made the physician's work more
laborious or less independent without any impact on the patient,
they would not have violated the Constitution.

															[ Footnote 34 ]

															Boyer, Computerized Medical Records and the Right to Privacy:
The Emerging Federal Response, 25 Buffalo L.Rev. 37 (1975); Miller,
Computers, Data Banks and Individual Privacy: An Overview, 4 Colum.
Human Rights L.Rev. 1 (1972); A. Miller, The Assault on Privacy
(1971). See also Utz v. Cullinane, 172 U.S.App.D.C. 67,
78-82, 520 F.2d 467, 478-482 (1975).

															MR. JUSTICE BRENNAN, concurring.

															I write only to express my understanding of the opinion of the
Court, which I join.

															The New York statute under attack requires doctors to disclose
to the State information about prescriptions for certain drugs with
a high potential for abuse, and provides for the storage of that
information in a central computer file. The Court recognizes that
an individual's "interest in avoiding disclosure of personal
matters" is an aspect of the right of privacy, ante at 429 U. S.
598 -600, and nn. 24-25, but holds that in this case, any
such interest has not been seriously enough invaded by the State to
require a showing that its program was indispensable to the State's
effort to control drug abuse.

															The information disclosed by the physician under this program is
made available only to a small number of public health officials
with a legitimate interest in the information. As the record makes
clear, New York has long required doctors to make this information
available to its officials on request, and that practice is not
challenged here. Such limited reporting requirements in the medical
field are familiar, ante at 429 U. S. 602 n. 29, and are not generally regarded as an invasion of privacy.
Broad dissemination by state officials of such information,
however, would clearly implicate constitutionally protected privacy
rights, and would presumably be justified only by compelling state
interests. See, e.g., Roe v. Wade, 410 U.
S. 113 , 410 U. S.
155 -156 (1973).

															What is more troubling about this scheme, however, is the
central computer storage of the data thus collected. Obviously, as
the State argues, collection and storage of data Page 429 U. S. 607 by the State that is, in itself, legitimate is not rendered
unconstitutional simply because new technology makes the State's
operations more efficient. However, as the example of the Fourth
Amendment shows, the Constitution puts limits not only on the type
of information the State may gather, but also on the means it may
use to gather it. The central storage and easy accessibility of
computerized data vastly increase the potential for abuse of that
information, and I am not prepared to say that future developments
will not demonstrate the necessity of some curb on such
technology.

															In this case, as the Court's opinion makes clear, the State's
carefully designed program includes numerous safeguard intended to
forestall the danger of indiscriminate disclosure. Given this
serious and, so far as the record shows, successful effort to
prevent abuse and limit access to the personal information at
issue, I cannot say that the statute's provisions for computer
storage, on their face, amount to a deprivation of constitutionally
protected privacy interests, any more than the more traditional
reporting provisions.

															In the absence of such a deprivation, the State was not required
to prove that the challenged statute is absolutely necessary to its
attempt to control drug abuse. Of course, a statute that did effect
such a deprivation would only be consistent with the Constitution
if it were necessary to promote a compelling state interest. Roe v. Wade, supra; Eisenstadt v. Baird, 405 U.
S. 438 , 405 U. S. 464 (1972) (WHITE, J., concurring in result).

															MR. JUSTICE STEWART, concurring.

															In Katz v. United States, 389 U.
S. 347 , the Court made clear that although the
Constitution affords protection against certain kinds of government
intrusions into personal and private matters, * there is no

															"general constitutional 'right to Page 429 U. S. 608 privacy.' . . . [T]he protection of a person's general right to
privacy -- his right to be let alone by other people -- is, like
the protection of his property and of his very life, left largely
to the law of the individual States." Id. at 389 U. S.
350 -351 (footnote omitted).

															MR. JUSTICE BRENNAN's concurring opinion states that

															"[b]road dissemination by state officials of [the information
collected by New York State] . . . would clearly implicate
constitutionally protected privacy rights. . . ." Ante at 429 U. S. 606 .
The only possible support in his opinion for this statement is its
earlier reference to two footnotes in the Court's opinion, ibid., citing ante at 429 U. S.
599 -600, and nn. 24-25 (majority opinion). The
footnotes, however, cite to only two Court opinions, and those two
cases do not support the proposition advanced by MR. JUSTICE
BRENNAN.

															The first case referred to, Griswold v. Connecticut, 381 U. S. 479 ,
held that a State cannot constitutionally prohibit a married couple
from using contraceptives in the privacy of their home. Although
the broad language of the opinion includes a discussion of privacy, see id. at 381 U. S.
484 -485, the constitutional protection there discovered
also related to (1) marriage, see id. at 381 U. S.
485 -486; id. at 381 U. S. 495 (Goldberg, J., concurring); id. at Page 429 U. S. 609 381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v.
Ullman, 367 U. S. 497 , 367 U. S. 522 (Harlan, J., dissenting); 381 U.S. at 381 U. S.
502 -503 (WHITE, J., concurring in judgment); (2) privacy
in the home, see id. at 381 U. S.
484 -485 (majority opinion); id. at 381 U. S. 495 (Goldberg, J., concurring); id. at 381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman,
supra at 367 U. S. 522 (Harlan, J., dissenting); and (3) the right to use contraceptives, see 381 U.S. at 381 U. S. 503 (WHITE, J., concurring in judgment); see also Roe v. Wade, 410 U. S. 113 , 410 U. S.
169 -170 (STEWART, J., concurring). Whatever the ratio decidendi of Griswold, it does not
recognize a general interest in freedom from disclosure of private
information.

															The other case referred to, Stanley v. Georgia, 394 U. S. 557 ,
held that an individual cannot constitutionally be prosecuted for
possession of obscene materials in his home. Although Stanley makes some reference to privacy rights, id. at 394 U. S. 564 ,
the holding there was simply that the First Amendment -- as made
applicable to the States by the Fourteenth -- protects a person's
right to read what he chooses in circumstances where that choice
poses no threat to the sensibilities or welfare of others, id. at 394 U. S.
565 -568.

															Upon the understanding that nothing the Court says today is
contrary to the above views, I join its opinion and judgment.

															* See 389 U.S. at 389 U. S. 350 n. 5:

															"The First Amendment, for example, imposes limitation upon
governmental abridgment of 'freedom to associate and privacy in
one's association." NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 462 .
The Third Amendment's prohibition against the unconsented peacetime
quartering of soldiers protects another aspect of privacy from
governmental intrusion. To some extent, the Fifth Amendment too
"reflects the Constitution's concern for . . . . . . the right
of each individual "to a private enclave where he may lead a
private life.'" Tehan v. Shott, 382 U.
S. 406 , 382 U. S. 416 .
Virtually every governmental action interferes with personal
privacy to some degree. The question in each case is whether that
interference violates a command of the United States
Constitution. As the Court note, ante at 429 U. S.
599 -600, and n. 26, there is also a line of authority,
often characterized as involving "privacy," affording
constitutional protection to the autonomy of an individual or a
family unit in making decisions generally relating to marriage,
procreation, and raising children.

Summary: In Whalen v. Roe, the Supreme Court upheld a New York law requiring doctors to disclose patient information for certain prescription drugs, finding that the law was a reasonable exercise of the state's police powers and did not violate the Fourteenth Amendment. The Court rejected arguments that the law invaded patients' privacy or posed a threat to their reputation or independence. Justices Brennan and Marshall concurred, emphasizing the limited nature of the decision and distinguishing it from previous privacy cases like Griswold v. Connecticut and Stanley v. Georgia.