Category: Privacy (Medical)


Sex in Kansas

doctor2a.jpgYes, Dorothy, you really can tell your doctor about sex in Kansas. A while ago, I wrote about the Kansas Attorney General’s interpretation of a law prohibiting sex with minors under the age of 16 as requiring doctors to report any sexual activity by people under 16 to the state authorities (here and here).

Recently, a federal district court judge concluded in Aid for Women v. Foulston:

An individual’s right to informational privacy may be implicated when the government compels disclosure of that individual’s personal sexual or health-related information to the government and/or to other third parties. Compelled disclosure may violate an individual’s right to informational privacy unless the disclosure serves a compelling state interest in the least intrusive manner. To determine whether information is of such a personal nature that it demands constitutional protection, the court considers: “1) if the party asserting the right has a legitimate expectation of privacy; 2) if disclosure serves a compelling state interest; and 3) if disclosure can be made in the least intrusive manner.” A “legitimate expectation of privacy,” is based “at least in part, upon the

intimate or otherwise personal nature of the material.” . . .

The Supreme Court and this Circuit have extended to minors the constitutional right to privacy, including the right of informational privacy. However, in a variety of contexts the power of the state to control or regulate the conduct of children has been found to reach beyond the scope of its power over adults. For the narrow issue of whether mandatory reporting of consensual sexual activity of minors violates a minor’s informational privacy rights, the court begins with a three-prong analysis: 1) is there is a legitimate expectation of privacy; 2) does disclosure serve a compelling state interest; and 3) can disclosure be made in the least intrusive manner? The court finds the Kansas reporting statute encompasses these elements. First, the statute recognizes an expectation of privacy in conduct when there is no reason to suspect injury as a result of abuse. Second, the state clearly has a compelling interest in protecting children from abuse, but, as the statute indicates, this interest is limited to circumstances when there is a reason to suspect injury. Thus, a minor’s privacy ends where the state’s interest in protecting the minor begins. Finally, the statute recognizes that privacy should be breached only when injury to the child is reasonably suspected. By its very terms, the statute recognizes an element of privacy in mandatory reporting of unlawful sexual activity of a minor.

As the court concluded above, the statute itself wasn’t a problem. The Kansas AG’s interpretation of the law, however, went too far, and the court enjoined it. According to the court:

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Update on the Kansas Teen Sex Medical Records Case

doctor2b.jpgA few days ago, I blogged about a case in Kansas where the Attorney General interpreted a law prohibiting sex with minors under the age of 16 as requiring doctors to report any sexual activity by people under 16 to the state authorities. Recently, the Kansas Supreme Court issued an opinion, Alpha Medical Clinic v. Anderson, strongly limiting the Attorney General’s reporting requirement. Relying in significant part on Whalen v. Roe, 429 U.S. 589 (1977) (discussed in depth in my earlier post), the Kansas Supreme Court reasoned:

It is beyond dispute that the State has a compelling interest in pursuing criminal investigations. . . . And an individual’s right to informational privacy is not necessarily “absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest.” . . . . Also, the fundamental right to obtain a lawful abortion may be regulated as long as the regulation does not constitute an undue burden. . . .

Our evaluation necessarily involves weighing of these competing interests, including the type of information requested, the potential harm in disclosure, the adequacy of safeguards to prevent unauthorized disclosure, the need for access, and statutory mandates or public policy considerations. See Lawall, 307 F.3d at 790 (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 [3rd Cir. 1980]). . . .

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Can Doctors Be Required to Tell the Government About Teen Sex?

doctor2a.jpgA rather remarkable case is beginning in Wichita, Kansas. From the Wichita Eagle:

A 15-year-old girl tells her doctor she needs birth control because she and her boyfriend are having sex.

Kansas Attorney General Phill Kline says the law requires the doctor to report the girl to child protective services.

A group of doctors, nurses, counselors and other health-care providers across Kansas say it’s none of the state’s business.

U.S. District Judge J. Thomas Marten will have to decide who’s right during a trial beginning Monday in Wichita that’s being watched across the country by legal, women’s and health-care groups. . . .

Kline touched off what has become a lengthy court battle with a controversial legal opinion in 2003. Kansas law makes sexual contact with anyone under 16 a crime. Kline said that means doctors, psychologists, nurses and other health-care providers should report all suspected sexual activity involving anyone younger than 16.

The plaintiffs’ complaint is here. And here is their memorandum in support of their motion for a preliminary injunction. I believe that the plaintiffs may have a good case.

The plaintiffs first raise a constitutional right to information privacy claim. In a case called Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court stated that the constitutional right to privacy protected two “different kinds of interests” — (1) “the individual interest in avoiding disclosure of personal matters” and (2) “the interest in independence in making certain kinds of important decisions.” The first interest has become known as the constitutional right to information privacy. The Court only addressed this right in one other case, Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Since then, however, the Court has done little to clarify the right. A few courts have concluded that the right is just dicta, but most federal courts of appeal have recognized the right, including the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, and 10th Circuits.

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Teaching Information Privacy Law

privacy1a.jpgThis post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

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Genetic Testing: Further Debate with Richard Epstein

dna7.jpgRichard Epstein has posted a reply continuing our debate over whether employers should be able to use genetic testing information to make employment decisions regarding employees. Here are the posts in our debate so far:

1. Solove, IBM vs. NBA: Using Employee Genetic Information

2. Epstein, Two Cheers for Genetic Testing

3. Solove, A Reply to Richard Epstein on Genetic Testing

4. Epstein, A Third Cheer for Genetic Testing

Epstein’s latest reply, A Third Cheer for Genetic Testing, slips in another cheer for genetic testing. He asserts that my argument that genetic information only reveals propensities, not the presence of certain conditions, actually cuts in favor of employers using genetic information:

That information should not make the employer instantly hand out a pink slip. It is one factor among many to be taken into the overall assessment. The insurance could be supplied, but in exchange for an additional premium that reflects that additional risk. Or the health insurance could be supplied subject to an exclusion for the risky condition. Judgments like that are made all the time in the insurance business, and there is no reason why they cannot be made with the processing of genetic information.

Epstein is certainly correct that genetic information is helpful in assessing risk, and he is right that employers need not just fire or refuse to hire people with genetic predispositions. But there are larger normative issue at stake: What risks ought people to bear? Who ought to bear these risks? How ought these risk to be distributed throughout society?

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A Reply to Richard Epstein on Genetic Testing

dna6.jpgIn his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein disagrees with my general view that it is better to restrict employers from using genetic information in making employment decisions.

epstein.jpgEpstein’s argument is based in part on his view that privacy is a form of misrepresentation, tantamount to a kind of fraud by concealing disreputable and harmful information. In this regard, he agrees with his colleague, Richard Posner, who makes a similar argument. If a person knows he will drop dead in a month from a fatal disease, it would be fraud to deliberately conceal this information on a life insurance application. So why not when seeking employment, Epstein asks, since employers often invest heavily in training a person?

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IBM vs. NBA: Using Employee Genetic Information

ibm-nba1.jpgThis week, IBM announced that it would not use genetic information in making any employment decision:

On October 10, IBM Chairman Sam Palmisano signed a revision of the company’s equal opportunity policy specifying that IBM would not “use genetic information in its employment decisions.” In doing so, Big Blue became the first major corporation to proactively take this position. “Business activities such as hiring, promotion and compensation of employees will be conducted without regard to a person’s genetics,” wrote Palmisano in a letter to employees announcing the change.

In contrast, consider the story of Eddie Curry, an NBA basketball player. Curry was with the Chicago Bulls, but he had two incidents of heart arrhythmia. General Manager John Paxson decided to bench Curry for the rest of the season. Paxson wanted Curry to undergo a genetic test to further diagnose his heart condition, but Curry refused. According to this CNN-Sports Illustrated article:

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Should We All Be in the National DNA Database?

dna4.jpgThe Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System (“CODIS”), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.

In a press release, Senator Leahy (D-Vermont) states:

Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.

Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.

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