Back In The Day by Steve Vaughn MD, PhD

It is fifty years since the Supreme Court took on the privacy of citizens, married couples and their physicians in GRISWOLD ET AL. v. CONNECTICUT It may be surprising to many readers that in 1965, the purchase and use of contraceptives by married couples was illegal in Connecticut and many other States. That may be unbelievable by younger readers, but it was the law of the land.

Case law makes for dry reading, for sure. But there are points in Justice Douglas’ opinion below, that people need to think of about physician practice and privacy, for they are already disappearing.

From the opinion:

“Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested. “

“They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.”

Dr. Buxton was arrested for giving medical advice regarding contraception to married couples.

“The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.”

This part of the opinion found for a special relationship protected under the constitution by privacy rights, not only between married couples, but between doctor and patient. Although lip service is still made to this privacy right through HIPAA, it is largely gone.

It would have been almost impossible for courts to get ahold of medical records then – they were private property that belonged to the physician and/or the patient, period. Courts would have to show a serious need to review medical records outside of a malpractice case.

“These cases bear witness that the right of privacy which presses for recognition here is a legitimate one. “

“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

Now, the government sleuth doesn’t have to drop its donut and get up from the monitor. Sweeping through the vast electronic holdings on people, including some of their medical and psychological records, can be done with a mouse, when fifty years ago, it required a crowbar.

In the great philosophies of government, there are the Optimists – those that believe that an organization or an individual with proper motives and admirable character can wield any sort of power in the interests of lesser persons. The American founders were largely Pessimists – that we are all budding Knaves, and a little sprinkle of power here and there, and presto – Instant Jerk.

What would Justice Douglas have said about the world of the EMR and centralized medical data, which will be here within a few years? Where privacy is a concept extolled in words and ignored in actions, like the fate of Black Americans during Jim Crow days? On paper they had Equal Rights, and on paper we have “Privacy.” In a place where paper matters more than human beings, such things are always the case.