Summary
In Schulman v. New York City Health and Hospital Corp., 38 N.Y.2d 234, 379 N.Y.S.2d 702, 709, 342 N.E.2d 501, 506 (1975), for example, the court rejected the contention that the inclusion of a patient's name on a pregnancy termination certificate, filed with the Department of Health, infringed on a constitutionally-protected zone of privacy. It concluded that there was "no compelling reason to extend the right to privacy beyond its recognized boundaries."
Summary of this case from Falcon v. Alaska Public Offices Com'nOpinion
Argued October 16, 1975
Decided December 4, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SAMUEL A. SPIEGEL, J.
H. Miles Jaffe for appellants.
W. Bernard Richland, Corporation Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan of counsel), for respondents. Nancy Stearns for New York City Chapter of National Organization for Women, amicus curiae.
Petitioners challenge, primarily on constitutional grounds, respondent's requirement that a certificate of termination of pregnancy, a form whose execution is mandated by section 204 of the New York City Health Code, include the name and address of the patient obtaining the abortion. Appellant Dr. Harold Schulman is the director of obstetrics at the Bronx Municipal Hospital and appellant Jane Doe is the fictitious name of a patient on whom Dr. Schulman performed an abortion. At his patient's behest, Dr. Schulman did not file a pregnancy termination certificate. Petitioners argue that the name requirement violates a woman's qualified right to an abortion enunciated by the United States Supreme Court in Roe v Wade ( 410 U.S. 113) and Doe v Bolton ( 410 U.S. 179); and they claim, additionally, that it violates the right to privacy "connected with the use of an individual's name."
Section 204.03 of the New York City Health Code provides that a termination of pregnancy occurring in New York City shall be reported to the Department of Health within 24 hours of the termination, by the person in charge of the hospital in which the abortion occurs. Section 204.05 of the code vests the New York City Board of Health with the authority to prescribe the form and content of the certificate. Finally, and of particularly significant importance here, section 204.07 of the code, as amended by resolution of the Board of Health (pursuant to section 1706 of the New York City Charter), effective November 24, 1973, provides that: "The certificate of termination of pregnancy shall not be subject to subpoena or to inspection by persons other than the Commissioner or authorized personnel of the Department."
Appellant's preliminary challenge, that the inclusion of names is an abuse of discretion and a violation of the physician-patient privilege in CPLR 4504, must be rejected. Section 204 of the New York City Health Code confers upon the Board of Health the discretion to prescribe the content of pregnancy termination certificates. As long as the content of the certificates is rationally related to a valid State interest, the board has not abused its discretion. As we demonstrate below, the State's interest here is "compelling" and the name requirement rationally related thereto. Secondly, since the physician-patient privilege is wholly a creature of statute, unknown to the common law, it may be abrogated legislatively. Such is the case here since the Board of Health has been recognized by the Legislature as the sole legislative authority in the field of health regulation in the City of New York (see Grossman v Baumgartner, 17 N.Y.2d 345, 351; New York City Charter, § 1706).
The record indicates that these provisions of the Health Code were enacted in connection with the passage of the State liberal abortion reform law (Penal Law, § 125.05, subd 3; L 1970, ch 127) and prior to the Supreme Court decisions in Roe v Wade (supra) and Doe v Bolton (supra), in order, according to respondent, to safeguard the privacy and sensitivity of women undergoing abortions by differentiating a pregnancy termination certificate from a "fetal death certificate."
Respondent urges that the reporting requirement was designed to monitor the safety and effectiveness of New York City's pilot program in legal abortions. The city points out that data from the New York City program was relied upon by the Supreme Court to support its premise that abortions prior to the end of the first trimester produced as low or lower death rates than normal childbirth (see Roe v Wade, supra, p 149, n 44). Two public health experts, Doctors Donna O'Hare and Jean Pakter, submitted important background affidavits showing clearly that the certificates were directed toward the accomplishment of seven public health objectives:
1. Allowing follow-up where complications ensue.
2. Enabling the Department of Health to determine whether orthodox procedures were followed.
3. Enabling the department to determine whether further investigation or regulation is required.
4. Facilitating the collection of public health data as yet nonexistent on the possible adverse effects of an abortion or of multiple abortions on the same woman.
5. Ensuring the efficient compilation of this data and to allow the department to retrieve a particular patient's record from an abortion service where patients are identified only by name and address.
6. Offering public health counseling on adequate family planning measures as alternative means of birth control to repeated abortions.
7. Ensuring that women who test positive for venereal disease, sickle cell anemia, and RH negative factor which affect the health of any future children receive proper public health counseling and treatment.
Respondent successfully demonstrated that, while a woman's own doctor is in the position to perform many of these functions, he is unable to acquire the broad statistical sampling of data necessary to the establishment of public health programs and the advancement of medical research. The need for such programs is particularly critical in the case of indigent women who do not have private physicians on whom they may rely for after-care medical advice; rather, these women are admitted as clinic patients without attending physicians. The services provided by the Department of Health may, in fact, be the only means of securing adequate medical care for these women.
It is further claimed by the city that the name requirement insures accountability for proper abortion procedures. Anonymous pregnancy termination certificates would encourage careless and inaccurate reporting, and ultimately destroy accountability. The pregnancy termination certificate enables the Department of Health to ascertain whether proper procedures are being followed in second trimester abortions, an area of permissible State regulation under Roe v Wade ( 410 U.S. 113, supra), and to determine whether second trimester abortions are being falsely reported as first trimester abortions in order to avoid the stricter limitations governing the former. Moreover, the inclusion of names on the pregnancy termination certificate offers the most practicable means for researchers to retrieve a patient's hospital records containing detailed information regarding the treatment afforded to the patient.
Respondent estimates that 500,000 legal abortions are performed in New York City hospitals. This figure attests to the onerous burden upon the city to insure adequate medical care for the recipients of these abortions. Electronic data storage may be the most practical means to monitor the standard of care provided.
Those of the majority do not necessarily all agree that each of the city's articulated objectives is sufficient to sustain this mandatory reporting requirement. This is not critical because all do agree that the reporting requirement with centralized computer recording does enable the city to obtain and to have usefully available current statistical data on the basis of which to discharge the city's responsibility for effective, up-to-date monitoring of abortion practices as well as to plan for the availability and distribution of services and facilities. Not only is a statistical predicate necessary but any reliable evaluation must include opportunity as well for suitable random inquiry of individuals who have used the services.
In Roe v Wade (supra, p 155) the Supreme Court asserted that governmental regulations limiting fundamental rights may be justified only by a "compelling state interest" and that legislation or regulations affecting these rights must be "narrowly drawn to express only the legitimate state interests at stake." The court held that there was a qualified right to an abortion inherent in the right to privacy explicitly recognized in Griswold v Connecticut ( 381 U.S. 479; see, also, Breard v Alexandria, 341 U.S. 622; Skinner v Oklahoma, 316 U.S. 535; Pierce v Society of Sisters, 268 U.S. 510; Meyer v Nebraska, 262 U.S. 390). The right was qualified by the "compelling state interests" in protecting the health of the pregnant woman during the second trimester of pregnancy and that of the fetus at the "stage subsequent to viability", defined by the court as the beginning of the third trimester (Roe v Wade, supra, p 164). We hold that the inclusion of the patient's name in the pregnancy termination certificate does not infringe upon this right to an abortion or interfere with a woman's decision to have an abortion. Rather, the pregnancy termination certificate is precisely tailored and reasonably related to the compelling governmental interest in maternal health attaching during the second trimester of pregnancy. The record is completely devoid of any proof that the name requirement dissuades potential abortion recipients from obtaining abortions in New York City. Petitioners advance only unsubstantiated allegations of subjective chill, from which no actual chilling effect can logically be inferred (cf. Laird v Tatum, 408 U.S. 1, 13-14). The city has adequately insured, and the code so provides, that the information provided by the patient is cloaked with confidentiality and shielded from disclosure to unauthorized persons. Thus, we conclude that there can be no threat, real or otherwise, that the contents of a pregnancy termination certificate will become subject to public disclosure.
We deem irrelevant one dissenter's allusion to numerous decisions in the abortion area where litigants' identities are concealed by "protective pseudonyms" (dissenting opn, p 254, n 2). In those cases, without such protection, litigants' names would of necessity become public knowledge upon publication of the decisions in the press or the official reporters.
In accord with our reasoning is the decision of the three-Judge United States District Court in Planned Parenthood of Cent. Mo. v Danforth ( 392 F. Supp. 1362, probable jurisdiction noted 423 U.S. 819). Reviewing reporting requirements similar to those at issue here (in addition to other State regulations governing abortions), the court stated that, "The acquisition of data is essential to the advancement of medical knowledge. These provisions establish reporting procedures for statistical purposes only, and require that the division of health ensure the confidentiality of all information. Nothing in these sections would serve to restrict either the abortion decision itself or the exercise of medical judgment in performing an abortion." (Planned Parenthood of Cent. Mo. v Danforth, supra, p 1374.) No similar confidentiality safeguard was contained in the sections of the New York State Health Law, governing the reporting of prescriptions for certain controlled drugs, held unconstitutional by the United States District Court in Roe v Ingraham ( 403 F. Supp. 931). In that case, too, there was testimony by a psychologist that patients, who were in need of drugs subject to the reporting procedures on account of their medical conditions, would be dissuaded from using them because of the fear of being branded "drug addicts" by the State. Patients and parents of minor patients themselves testified that the procedures inhibited their use of the drugs.
Because of its slight, if any, impact on the abortion decision and procedures employed by physicians for first semester abortions, this case is distinguishable from Word v Poelker ( 495 F.2d 1349, 1351) and Friendship Med. Center v Chicago Bd. of Health ( 505 F.2d 1141, cert den 420 U.S. 997), in which courts invalidated "sweeping regulations of the abortion procedure without regard for the conflicting interests." (Cf. Younger v Harris, 401 U.S. 37, 51-52.) The regulations challenged herein plainly do not "affect whether and in what manner an abortion will take place" (Friendship Med. Center v Chicago Bd. of Health, supra, p 1151). To the contrary the city has struck a meticulous balance between its public health interests and the constitutionally protected interests delineated in Roe v Wade (supra).
We cannot ignore the fact that New York City's pilot program pioneered legalized abortions. In light of the shoddy and dangerous conditions under which women were forced to submit to abortion before legalization, New York's attempt to insure safe conditions, during the period in which abortions are constitutionally subject to its regulation, is laudable. Of course, women of means may not necessarily benefit directly or substantially from New York City public health programs because they presumably receive extensive adequate care and attention from their personal physicians. But, indigent women, not under the watchful eyes of personal attending physicians, may be subjected to improper procedures and inadequate health care following an abortion. The city is not seeking to interfere in the physician-patient relationship in providing counseling for these women; rather, it is seeking to provide such a relationship where none had previously existed.
We consider the intimations of one dissenter, relying upon Relf v Weinberger ( 372 F. Supp. 1196) and related cases, an unfair characterization of the city's aims and the effect of the regulation challenged. The inference that the city is using the pregnancy termination certificate to advise women against abortions for moral, as opposed to medical, reasons or to threaten denial of public welfare benefits to indigent women is wholly unsubstantiated and unwarranted.
Petitioners, and a dissenter, incorrectly rely on several United States Supreme Court decisions involving First Amendment questions in seeking to compensate for the utter lack of proof in the record that the challenged name requirement inhibits the abortion decision. In Gooding v Wilson ( 405 U.S. 518) and Coates v City of Cincinnati ( 402 U.S. 611), the Supreme Court dealt with facial overbreadth challenges to ordinances governing freedom of expression. There is no authority for extending this doctrine of facial overbreadth beyond the reach of the First Amendment (see Note, The First Amendment Overbreadth Doctrine, 83 Harv L Rev 844, 852). Indeed, the continued applicability of that doctrine beyond the category of statutes regulating "spoken words" is doubtful following the Supreme Court decision in Broadrick v Oklahoma ( 413 U.S. 601, 615-616; see, also, Civil Serv. Comm. v Letter Carriers, 413 U.S. 548) wherein the Supreme Court articulated the doctrine of "substantial overbreadth". Moreover, as we observed above, in other decisions invalidating regulations affecting the performance of abortions or the reporting of medical procedures, the record was replete with proof that the statute did impinge upon protected areas of conduct (Word v Poekler, 495 F.2d 1349, supra; Friendship Med. Center v Chicago Bd. of Health, 505 F.2d 1141, supra; Roe v Ingraham, 403 F. Supp. 931, supra).
As a subordinate claim, petitioners contend that the name requirement is invalid because of the right to privacy "connected with the use of one's name." The cases relied upon by appellants and the dissent in support of this contention are limited in scope to areas of the First Amendment freedom of association and the Fifth Amendment guarantee against self incrimination. The concerns expressed by Justice POWELL in California Bankers Assn. v Shultz ( 416 U.S. 21, 78-79 [concurring opn]) were grounded in First and Fifth Amendment concerns of "associations, and beliefs". In NAACP v Alabama ( 357 U.S. 449, 462-463), Shelton v Tucker ( 364 U.S. 479) and Bates v Little Rock ( 361 U.S. 516, 524), there was proof on the record that disclosure to the State of the names of members of the NAACP or of a teacher's associational ties would result in harassment and possible loss of employment. Unlike the situation in these cases, the city's motive and purpose in gathering the information in pregnancy termination certificates is not suspect. As we noted earlier, the aim of the city's program in these early years of abortion reform is to assure safe and adequate facilities and procedures in abortions subject to governmental regulation under Roe v Wade ( 410 U.S. 113, supra).
The right to privacy is not a talisman which may be invoked at will to set aside narrowly tailored governmental regulations which carefully avoid transgression upon constitutionally protected areas of decision making. Both petitioners and the dissenters manifest a misunderstanding of the scope of the right to privacy as articulated by the United States Supreme Court. Heretofore, the right has been construed to envelop (1) decision making in one's personal life (Roe v Wade, 410 U.S. 113 supra; Eisenstadt v Baird, 405 U.S. 438, supra; Loving v Virginia, 388 U.S. 1; Griswold v Connecticut, 381 U.S. 479, supra; Skinner v Oklahoma, 316 U.S. 535, supra) and (2) expectations of freedom from governmental intrusion into places where one's personal life is conducted (Griswold v Connecticut, supra; Stanley v Georgia, 394 U.S. 557; Katz v United States, 389 U.S. 347, 351-353 [decided on Fourth Amendment grounds]; see, also, Paris Adult Theatre I v Slaton, 413 U.S. 49, 65-67). Courts have generally not found that the privacy interest extends to situations in which the government gathers personal information for legitimate purposes. (See Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U L Rev 670, 770-772; Gross, The Concept of Privacy, 42 N.Y.U L Rev 34, 42.) Having concluded that the regulation here is narrowly designed to effectuate a legitimate State interest, we see no compelling reason to extend the right to privacy beyond its recognized boundaries in this case.
Protection against disclosure of facts concerning an individual's personal life has been provided by the tort law of individual States. (See Prosser, Torts [4th ed], § 117; Civil Rights Law, §§ 50, 51; Warren and Brandeis, The Right to Privacy, 4 Harv L Rev 193; cf. Katz v United States, 389 U.S. 347, 350-351, supra.) Some commentators have urged the extension of the right to include control of information over oneself (see, e.g., Fried, Privacy, 77 Yale LJ 475; Parker, A Definition of Privacy, 27 Rutgers L Rev 275).
Merely because the termination of pregnancy certificate may not be the only means available to the city to monitor abortion care, if such be the case, or is not as effective as appellants would prefer, does not invalidate it, when there is no interference with the right to privacy. The State is not limited in the means it may choose to advance valid State concerns to methods which Judges deem efficacious. It suffices that the means chosen do not "sweep unnecessarily broadly" so as to infringe upon constitutional rights, and are rationally related to the "compelling state interest" asserted (Roe v Wade, supra, pp 155, 164; NAACP v Alabama, 377 U.S. 288, 307; cf. Cleveland Bd. of Educ. v LaFleur, 414 U.S. 632, 643-644). The city has satisfactorily demonstrated that the pregnancy termination certificate and the name requirement, an integral part thereof, provide significant assistance in (1) assuring proper compliance with abortion procedures during the second trimester, (2) providing medical assistance to abortion patients and (3) advancing medical research in the abortion field.
Despite the legitimate ends of the city's inquiry here, we are not insensitive to the dangers posed by modern computer technology. Present day computerized information storage and retrieval systems may pose a significant threat to the constitutionally protected right to privacy (see Fried, Privacy, 77 Yale LJ 475, 489-493; Note, Privacy and Efficient Government: Proposals for a National Data Center, 82 Harv L Rev 400). This is especially true when governmental entities are permitted to indiscriminately seek and compile information concerning individuals for impermissible or vaguely articulated reasons (see NAACP v Alabama, 377 U.S. 288, supra; Shelton v Tucker, 364 U.S. 479; Schware v Board of Bar Examiners, 353 U.S. 232). In the instant case, however, the regulation is designed to provide information for narrow, well-defined and laudable governmental ends. Protection is afforded to the individual by the confidentiality provision of section 204.07 of the New York City Health Code. There is no allegation that information is permitted to leak from the system or that it is made available to other governmental agencies for illegitimate purposes. Contrary to petitioners' assertion, abortion is not singled out for a centralized data reporting requirement. The General Administration Manual of the Department of Health indicates that confidential records are maintained in the areas of birth defects, cancer cases, tuberculosis cases and reports of venereal disease, among others. We trust, of course, that when the need for the information contained in a pregnancy termination certificate ceases, the city will discontinue its culling and storage of information concerning abortions. At the present time, however, we believe that it has been clearly demonstrated that the information on the certificate, including the name requirement, serves a valid objective and is rationally related and narrowly tailored to the compelling State interest in maternal health during the second trimester of pregnancy.
Accordingly, the order of the Appellate Division should be affirmed.
I dissent and would reverse finding the challenged regulation unconstitutional. Conceding arguendo, the existence of a compelling State need to monitor what the city describes as "essentially a pilot program in legal abortions", I find absolutely no valid justification for the inclusion of the patient's name and address on the termination of pregnancy certificate.
In the wake of Roe v Wade ( 410 U.S. 113) and Eisenstadt v Baird ( 405 U.S. 438) it cannot be seriously doubted that the protection of the due process clause of the Fourteenth Amendment extends to matters involving whether or not to have children (see, also, Doe v Bolton, 410 U.S. 179; Loving v Virginia, 388 U.S. 1; Griswold v Connecticut, 381 U.S. 479; Skinner v Oklahoma, 316 U.S. 535). Nevertheless, the city argues that the regulation here is not within the ambit of the constitutional protection enunciated in Roe and Eisenstadt because those cases apply solely to the decision to abort and are inapposite with respect to mere requests for information needed for record keeping. The fallacy of this argument is that it overlooks the lingering sensitivity of the abortion issue and the potential for stigmatization of women availing themselves of abortions which are now perfectly legal. In my view the right to privacy which the Supreme Court extended to a woman's decision to abort necessarily extends to and includes her right to guard her identity from a centralized abortion registry.
While it is true that the Fourteenth Amendment's embodiment of the right to an abortion is not absolute and may be subject to State regulation in appropriate instances (Roe v Wade, 410 US, at pp 154-155, supra), any such regulation must still pass constitutional muster. This principle obtains whether the regulation directly controls abortions (Roe v Wade, supra; Friendship Med. Center v Chicago Bd. of Health, 505 F.2d 1141, cert den 420 U.S. 997) or whether it affects abortions indirectly by mandating disclosure of name and address for a central file. To be valid any such enactment must be precisely and narrowly drawn so as to express only the legitimate State interests at stake (see, e.g., Griswold v Connecticut, 381 US, at p 485, supra; Aptheker v Secretary of State, 378 U.S. 500, 508; Cantwell v Connecticut, 310 U.S. 296, 307-308; Eisenstadt v Baird, 405 US, at pp 463-464, supra).
The respondents attempt to justify the disclosure requirement by listing several objectives which the regulation purports to accomplish. Despite this list, the city fails to show that the identity statistic is essential. Those objectives relating to continuing treatment and emergencies (Nos. 1 7 in majority opn, at p 238) are patently unpersuasive. Communication and time limitations inherent in a system functioning via the mails, render the use of termination certificates unworkable. Moreover, the termination certificates are totally useless to a treating agency unless the patient's name is ascertained from some independent source, like the patient. Consequently, these objectives are better accomplished by the use of standard hospital files which are presumably more detailed and therefore more useful.
As far as the objective concerning the policing of abortion clinic operations (No. 2 in majority opn, at p 238) it is my view that this may best be accomplished by on-site supervision and inspection. It is highly doubtful whether those operating in an illegal or unethical manner will broadcast their illicit activity in the termination certificates. Additionally, the presence of a name is not a fact which helps to determine whether the procedures used were proper. If any impropriety or irregularity did appear on a certificate, the department could easily take that certificate to the appropriate facility and without using a name find the corresponding file and conduct the necessary investigation. Lastly, the objective relating to family planning and counseling for those undergoing repeated abortions (No. 6 in majority opn, at p 238) is highly suspect in view of the Supreme Court's unequivocal pronouncement that this area is constitutionally cognizable as within the right of privacy (Roe v Wade, 410 U.S. 113, supra; Doe v Bolton, 410 U.S. 179, supra; see, also, Relf v Weinberger, 372 F. Supp. 1196).
The respondents argue that the addresses are necessary in order to determine accurately whether certain areas of the city need more clinical facilities. This, of course, could be accomplished by requiring the inclusion of the patient's home area. The department has no need for the patient's specific street address.
At one point the city contends that the patient's identity is required because without it an investigation into malpractice or use of improper procedures would be thwarted by virtue of surgeon anonymity. The obvious solution is to require the inclusion of the surgeon's name on the certificate.
The only valid objective presented by the city deals with the compilation of public health data to provide an empirical basis for future evolution in the area of legalized abortion (Nos. 3, 4 5 in majority opn, at p 238). Recognizing the necessity and desirability of these statistics the determinative question becomes whether this objective may be achieved without disclosure of names and addresses in a centralized data bank. The majority notes that the regulation is designed to provide information for (p 244) "narrow, well-defined and laudable governmental ends". This formulation skirts the main thrust of appellants' attack, which is that too much information is required. Clearly, the power to promulgate a form seeking vital statistics does not include the power to probe into private matters. It is my view that the same result would be accomplished if the regulation required the termination certificates to be compiled according to number.
Under this approach the patient's file would receive a coded number which would also be placed on the termination certificate for identification. Since the cards would contain all the pertinent information required (except the name and address) the Board of Health could then analyze and correlate the data in order to test any hypothesis it desired. Moreover, in the event the name of a particular patient were needed for purposes of follow-up, counseling or further inquiry, that file could easily be extracted by number from the hospital or clinic utilized. Thus, it is very difficult to accept the majority's bald conclusion that the inclusion of names and addresses on the certificate offers (p 239) "the most practicable means for researchers to retrieve a patient's hospital records".
Nor may the majority draw support from Planned Parenthood of Cent. Mo. v Danforth ( 392 F. Supp. 1362 [three-Judge District Court], probable jurisdiction noted 423 U.S. 819). Although the statute under consideration there professed the need for statistical data and insured confidentiality, it did not establish a centralized list of names. Instead, that statute required that all such records be maintained in the permanent files of the health facility in which the abortion was performed. This is a far cry from the massive, open-ended compilation of names created by New York's regulation and is obviously a more palatable approach.
Similarly, the majority's attempt to distinguish Roe v Ingraham ( 403 F. Supp. 931 [three-Judge District Court]) misses the mark. The court there was not concerned with the lack of confidentiality safeguards, as the majority intimates. Rather it focused on the magnitude of the intrusion noting that the existence of a computerized central file is qualitatively different from a name on file in one of a thousand pharmacies. Thus, the three-Judge court declared unconstitutional a New York State statute mandating the establishment of a centralized file of those using certain drugs. After discussing the State's interest in preventing illicit drug trafficking, the court held that the minimal use derived from the names did not justify the centralized listing of thousands of names. The court opined that the presence on the form of the name of the person receiving drugs adds nothing.
This reasoning is especially applicable in the instant case where the operating facility is required to maintain individual files detailing the case history, and the inclusion of names on the certificate is of doubtful, if any, value. Here, as in Roe v Ingraham (supra), though both enactments implement concededly legitimate State needs, the centralized list serves no purpose in deterring illicit activity, nor materially advances the compilation of necessary statistics.
Considering the seriousness of the issue and the magnitude of the task of controlling abortion practices, it seems painfully obvious that the city should proceed in a manner calculated to assure accurate data. The present method is counterproductive. Even disregarding the appellants' argument that the instant regulation has a chilling effect, it is clear from the record that women often use an alias to circumvent this regulation. Clearly a system of coded numbers would preclude resort to such measures and insure abortion patients the anonymity to which they are entitled.
Nor do I believe this conclusion should be altered by the recent addition of confidentiality safeguard to the regulation. While this measure is indeed welcome it does not totally dispel the specter conjured up by the existence of a centralized list of names growing at a rate of 500,000 per year. More significantly, however, the confidentiality provision cannot and does not provide a justification for the inclusion of names. It merely makes the present system less offensive. The proper solution — the one mandated by sound constitutional principles — would be for the city to compile the statistics without the use of names and addresses. Such an alternative system could utilize coded numbers or any other approach which would limit to the slightest degree the infringement on the patient's right to keep her intimate decisions personal.
Where, as here, the information is of an intensely private nature and the State's need for names and addresses is nonexistent, the centralization of such data is unwarranted and unconstitutional. Accordingly, I would reverse the order of the Appellate Division.
I most respectfully dissent. While I do not disagree with the points made in my fellow dissenter's opinion, my own analysis of the legal and factual strengths to be found in the petitioner's argument is somewhat different. Given that the regulation of abortion is the focus of enormous contemporary concern, I state that analysis.
I begin with the conviction that the city's regulation compelling the exposure of all the women's names and addresses to availability in a central data bank comes sufficiently within the constitutionally protected right to privacy elaborated in Roe v Wade ( 410 U.S. 113) and Doe v Bolton ( 410 U.S. 179) so that it must be justified not merely on a rational basis but by that higher standard of utter necessity which we denominate a compelling State interest. (See Griswold v Connecticut, 381 U.S. 479; NAACP v Alabama, 377 U.S. 288; Shapiro v Thompson, 394 U.S. 618; Eisenstadt v Baird, 405 U.S. 438, 460 [WHITE, J., concurring].) As these cases point out, once a nexus is established between the Constitution and a particular right, any infringement of that right by the State must meet the higher test.
It is not now open to us to question whether abortion involves such a constitutional right. In Roe v Wade (supra) and Doe v Bolton (supra), the United States Supreme Court unequivocally declared that the right to an abortion is a medical matter within the range of the doctor-patient relationship and is to be accorded the constitutional dimensions of the right to privacy. Its recognition, in those cases, of the fact that the State has a strong interest in protecting women's health and safety is to be read in the light of its extension of constitutional protection to abortion. In advancing a balance, the court did not sanction every curiosity a State might wish to express about the abortion process. Nothing in the two opinions suggests that every possible manifestation of the State's interest has attained a status which could be utilized to put it beyond the scrutiny which must always be applied to State interference with a constitutional right.
Under the compelling interest test, not only must the State's interest be one which is related to a vital and important need, but also the means utilized in order to achieve the desired goal must be necessary ones. Where less intrusive means exist they must be used, even if they are somewhat less efficient and even if their use, perchance, involves greater expense to the State. (NAACP v Alabama, supra, at p 307; Shelton v Tucker, 364 U.S. 479, 488; Cantwell v Connecticut, 310 U.S. 296, 304; NAACP v Button, 371 U.S. 415, 438; and see Reed v Reed, 404 U.S. 71.)
It is not disputed or at issue here that, without any centralized data bank, the names and addresses of women receiving abortions are already contained in the medical records kept by the hospitals themselves. Indeed such records, in accordance with standard hospital practice, cover all patients in such institutions, not just those who abort, and, under proper circumstances, such hospital records are available to city health officials. Since the presumed goal of the regulation is the safety of women who undergo abortions, however, and not the obtaining of their names, the requirement that names be centralized is itself but a means selected to achieve that goal. It follows that the city must meet the test of necessity by proving that no less intrusive means exist.
The city has failed to meet that test. In its attempt to show true necessity for mass centralization of the data, it has offered the following reasons why it would like to be able to identify all of the women who have abortions:
1. Follow-up where the patient died and the doctor could not otherwise be found;
2. Follow-up where complications or coma occur;
3. Investigation of facilities to determine whether proper procedures are being used;
4. Research on the effects of multiple abortions and counseling on alternative means of birth control; and
5. Collection of vital statistics on abortion.
Careful analysis of both the logic inherent in these justifications for the city's regulation and of the actual experience with it, as documented in the papers before us, indicates that wholesale collection of names and addresses is not warranted.
Though vital statistics on abortion are needed, obviously names are not essential for that purpose.
The desirability of follow-up of complications or coma may have superficial appeal. However, since these follow abortion very quickly, it is clear that the slow processing of hundreds of thousands of routine certificates at a central data bank will not result in meaningful help to a woman in such a condition. In most cases, treatment would be given by the abortion center and the data would be provided on the certificate itself.
The city nevertheless argues that there may be instances in which a woman might be admitted with complications to a hospital other that the one from which she received the abortion and might be unable or unwilling to tell authorities where the abortion itself was performed. But it has failed to demonstrate that the inclusion of names on the certificates is crucial to its ability to deal with such cases or that they occur with sufficient frequency so that other means of follow-up are not effective. Its very "Report from the City Department of Health", though based on four years of experience with the regulation, in attempting to document a need for the names on certificates, proves instead that they are not necessary.
In fact, the entire report cites but five examples of such follow-up altogether. In the first, the woman herself identified the abortion hospital to the second hospital. In the second example, the woman again supplied the information needed; follow-up disclosed that the physician never filed her certificate. In the third example, data, not names, on certificates filed by a particular doctor was sufficient to reveal that he was performing abortions though he was only a general practitioner; on-site investigation turned up bad medical practices as to which he had filed false information on the certificates. The fourth example again involved an institution identified as guilty of repeated bad practices by information other than that on the certificates; on-site investigation revealed that one of the bad practices was failure to file these papers. In the fifth and final example, which involved an institution suspected of performing abortions after the twelfth week of pregnancy by methods not approved for use after that date, the problem was brought to the authorities' attention by a patient herself; her certificate had never been filed. Interestingly, in a number of these examples, the women involved used false names at the abortion center in an attempt to maintain their privacy, and real ones at the hospital later, thus indicating that, if anything, the regulation tends to be self-defeating. What all of this information demonstrates vividly is that supervision of abortion practices can be and is carried out by investigative methods far more effective than the use of names on the certificates.
In this context, it is also important to point out that the city's added contention that it needs the names of the women in order to follow up the possible existence of other diseases is also vulnerable to the test of necessity. Abortion is itself neither contagious nor dangerous to society in the way that venereal disease or tuberculosis is. Society possesses other means to follow up unrelated diseases which may occur in conjunction with pregnancy as, indeed, they may occur together with any other medical condition. A separate report on women with such diseases could be required, for example, if one is not already mandated. More significant, the invasion of women's privacy in this constitutionally protected area in order to facilitate the achievement of health goals which are unrelated to abortion is so clearly prohibited by the Supreme Court decisions as to require no further comment here.
Finally, we address the city's contention that the city has no other way to obtain data on the effects of multiple abortions or to counsel women who appear to be using abortion as their sole contraceptive to utilize other, less risky means. Surely, there are other and less objectionable ways to correlate data on such women; if, for example, the information other than name and address on the original certificates included specification as to the patients' previous abortions, that would suffice. Indeed, as both parties have acknowledged, and as the city's own examples have illustrated, the information supplied is likely to be more accurate and complete if its revelation is not inhibited by the name requirement.
Disturbing too is the implication that the regulation is intended to enable the city to seek out certain categories of abortion patients and advise them, paternalistically, of the best contraceptive procedures to follow. Even the city does not make so bold as to argue outright that it may so invade the constitutionally protected privacy of those who do not wish to be advised. Such advice would be more appropriately given by the woman's own doctor, than by the city.
We note that many of the abortions performed in New York City are provided to women who are receiving some form of public assistance or free medical care. (See respondent's brief, pp 32-33, wherein indigent women are specifically targeted for such advice.) The dangers inherent in even well-meant attempts to counsel such women are apparent from such recent cases as Relf v Weinberger ( 372 F. Supp. 1196 [sterilization urged upon poor, black, allegedly retarded teenaged girls]) and Klein v Nassau County Med. Center ( 347 F. Supp. 496, vacated and remanded for consideration in light of Roe v Wade, 410 U.S. 113 and Doe v Bolton, 412 U.S. 925 [law which forbade use of public funds for elective abortions held violative of equal protection principles]; see, also, Babcock, Freedman, Norton Ross, Sex Discrimination and the Law, pp 987-990; Doe v Rose, 499 F.2d 1112).
In sum, not one of the reasons advanced as to why the city needs to know the names of all women who obtain abortions demonstrates the level of necessity required here.
I also note that the majority, in justifying the State's interest in women's health, emphasizes the problems associated with the second trimester of pregnancy. Indeed, as I read its opinion, the majority fully acknowledges the fact that the Supreme Court cases made abortion during the first trimester of pregnancy very much a private matter between a woman and her doctor. Those opinions indicate that the State's interest reaches a compelling level only at the second trimester. I note further that the record indicates that most of the women who have abortions do so in the first trimester. Thus, the city's argument here amounts to a contention that it may invade the declared privacy of women who have abortions in the first trimester simply in order to enhance its ability to regulate second trimester abortions. Such an argument obliterates completely the careful distinctions between the two trimesters drawn by the Supreme Court. I find this a classic example of regulation which sweeps too broadly.
In retreat from its unproved assertions, the city falls back on the argument that, since the names are recorded in hospital records anyhow, the harm which may arise from centralizing them is, in any event, de minimis. Building on that, it points out that there is no roster of women ready to come forward and testify that the existence of the data bank in fact chilled their exercise of the right to seek an abortion. It is well recognized, though, that such testimony is not essential; direct proof of a chilling effect is frequently elusive and its existence, especially in a constitutionally protected area, may often be inferred. (Gooding v Wilson, 405 U.S. 518, 521; Coates v City of Cincinnati, 402 U.S. 611, 616; Cantwell v Connecticut, supra; Griswold v Connecticut, supra; Friendship Med. Center v Chicago Bd. of Health, 505 F.2d 1141.) Also, there is an enormous difference between the knowledge that one's name exists, together with the names of all patients, not just abortion patients, merely in a hospital record somewhere in an immense metropolis, and the knowledge that the local political body has compiled a special file of all those who have sought this particular treatment.
The majority suggests that case law has overruled this principle; I do not so read it. Later cases, such as those cited by the majority, have merely suggested that defendants whose own conduct was not covered by the chilling portions of a statute do not always have standing to raise that question. The general rule set down in the cases cited here, and in countless other cases, permits the courts to find a chilling effect where one plainly exists without the necessity for statistical proof of actual chill. In Laird v Tatum ( 408 U.S. 1), also cited by the majority, the court found first that the petitioners had not themselves been subjected to the practices they sought to challenge (surveillance of private citizens on political grounds by the Army), thus reaching and deciding the merits, and then backed up to declare that the petitioners were without standing on that ground. I do not admire the decision, since, among other things, it violates that court's own standing doctrines, and I see no reason to emulate it even if it were relevant; it is not, for there is no question of standing in the case before us. Moreover, the amicus brief filed by the National Organization of Women (NOW) indicates that, at least in the experience of NOW as an organization involved in the abortion issue, the number of women who seek information out of a concern that their names may be used to injure them is substantial. I also note that the present practice in courts, both State and Federal, of permitting suits in this area to be brought under protective pseudonyms provides at least some evidence that fears of stigmatization are sufficiently realistic to merit recognition by the courts. (See, for example, Doe v Doe, 314 N.E.2d 128 [Mass. Sup J Ct]; Doe v Dunbar, 320 F. Supp. 1297; Doe v Scott, 321 F. Supp. 1385; Hall v Lefkowitz, 305 F. Supp. 1030; Poe v Menghini, 339 F. Supp. 986; Beecham v Leahy, 130 Vt. 164; Doe v General Hosp. of Dist. of Columbia, 434 F.2d 427; Coe v Gerstein, 376 F. Supp. 695; Doe v Rampton, 366 F. Supp. 189; Roe v Norton, 380 F. Supp. 726; Doe v Poelker, 497 F.2d 1063; Roe v Fergusen, 515 F.2d 279; Doe v Westby, 402 F. Supp. 140.)
Abortion is still an emotionally charged and heavily politicized topic today. Even were that not so, it is and always will be closely related to the most intimate decisions in the area of sex and family rearing an individual can make, and, because of the recency of the change in judicial and legislative attitudes, we know that many groups within our society still would stigmatize women involved in abortions if they could do so. Although this tendency may be expected to abate with time, one would have to blind oneself to reality to deny that the potential for stigmatization, intended or inadvertent, is multiplied by the unnecessary collection and centralization of such information.
This view was confirmed most recently in Roe v Ingraham ( 403 F. Supp. 931 [three-Judge court]). There, the court struck down a New York statute which required that the names and addresses of all patients obtaining drugs on the so-called "Schedule II" of sections 3331, 3332 and 3334 of New York's Public Health Law be sent to Albany for inclusion in a centralized data bank. That statute was designed to identify both patients who go from doctor to doctor to obtain more drugs than their conditions justify and also doctors who over prescribe for individual patients.
Schedule II includes such drugs as ritalin, codeine, percodan, morphine, and hycodan. There are drugs which have a great many vital and legitimate uses as well as possible addictive or other undesirable features.
In Ingraham, the State's goal was materially aided by possession of the patient's name and was unquestionably a laudable one. Yet, on the authority of Roe v Wade ( 410 U.S. 113, supra), and Doe v Bolton ( 410 U.S. 179, supra), the centralized data collection system, the process the State chose to use there, was found to be unjustifiably violative of the right to privacy on two grounds. Noting first that in some 20 months of operation only two incidents of possible misuse of drugs had been uncovered (and even those cases were not clearly matters of illegality), the court held that the intrusive means was not justified by the results obtained. More significantly, the court emphasized the stigmatizing and, therefore, chilling effect such centralization may have upon the exercise of the right of privacy and explicitly found it irrelevant that patients' names already existed on the registers of the pharmacies from which they bought their prescriptions.
In Lamont v Postmaster Gen. ( 381 U.S. 301), the court struck down a law which authorized the postmaster to withhold (p 302) "communist political propaganda" and to so notify potential recipients, who were then required to return a postcard if they wished to receive the mail in question. In rejecting the postmaster's argument that this interference represented only an inconvenience since the addressee was ultimately able to receive the mail, Mr. Justice BRENNAN stated (p 309): "But inhibition as well as prohibition * * * is a power denied to government * * * In any event, we cannot sustain an intrusion on First Amendment rights on the ground that the intrusion is only a minor one. As the Court said in Boyd v. United States, 116 U.S. 616, 635: 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.'"
In the case before us, there is not even such agreement that the possession of the names materially facilitates safer abortions. As noted above, the reasons advanced to justify possession of the information are not impressive; the addition of centralization, far from being de minimis, compounds the offense against the right involved. Because there appears to be no legitimate need for the name of every woman who seeks abortion, centralization of such information cannot be defended on the ground that any particular name or names could, with sufficient effort, be culled from hospital records. The modern technology which makes possible swift and efficient collection of data other than names and addresses in order to make abortions safer constitutes a welcome advantage; its capacity to provide grist for the mill of data banks, however, does not provide any justification for insensitivity to unnecessary intrusions on privacy.
This conclusion also suffices to dispose of the city's belated effort, made first in the Appellate Division, to argue that, because its data is computerized, identification numbers supplied by the hospital and coded to its records of names and addresses could not be utilized successfully. Parenthetically, it should be noted that, though the argument was made, the city never adequately explained precisely why some such numerical system could not be implemented.
The right to privacy, though slow and gradual in its articulation as constitutional doctrine, has come to play an increasingly powerful and pervasive antidotal role in keeping the potential abuses of electronic and other scientific devices in check. (Henkin, Privacy and Autonomy, 74 Col L Rev 1410; Konvitz, Privacy and the Law: A Philosophical Prelude, 31 Law and Contemp Prob 272.) It is no less important a doctrine because its reach cannot always be defined with precision. It surely applies here.
Thus, the cautious and careful step-by-step investigation of abortion as a newly-popular medical procedure, urged here by the city, ought also to be applied by the city in its use of technology in this area, for it too is new. And just as people may be divided over the unknown effects of legal access to abortion so also are they divided over and mistrustful of the potential of computers in government. Headlines in the recent past, and even in the present, provide ample basis for concern that centralized data banks may be misused and that neither legislation which attempts to control such use nor bland assurances that the public good is of foremost importance is any guarantee that the data will not be misused. Where the centralization of data made possible by technology serves a vital and otherwise unattainable goal it must be permitted, and, indeed, welcomed, but where, as here, it conflicts with and threatens a constitutional right and is not truly necessary, it ought not be used just "because it is there".
Accordingly, the regulation challenged here should be declared constitutionally invalid and the order of the Appellate Division sustaining it reversed.
Chief Judge BREITEL and Judges JASEN and JONES concur with Judge GABRIELLI; Judges WACHTLER and FUCHSBERG dissent and vote to reverse in separate opinions in each of which the other concurs and in both of which Judge COOKE concurs.
Order affirmed, without costs.