E.D. Ark. Discusses Split Re Whether Right to Privacy In Medical Information

Per Leher v. Bailey, Slip Copy, 2006 WL 1307658 (E.D. Ark. May 10, 2006):

The Supreme Court has never declared that there is a general right to privacy nor does the Constitution specifically confer such a right in its text. The Court has, however, carved different, specific privacy rights. Roe v. Wade, 410 U.S. 113 (abortion); Eisenstate v. Baird, 405 U.S. 438 (1972) (contraception); Loving v. Virginia, 388 U.S. 1 (1967) (marriage). However, there is no Supreme Court case declaring that medical information constitutes a zone of privacy protected by the Fourteenth Amendment. Although courts finding a right of privacy in medical information have cited to the Supreme Court decision in Whalen v. Roe, 429 U .S. 589 (1977), Whalen did not establish a zone of privacy for medical information. . . .

As could be predicted, the Circuits have split on the issue. Powell v. Schriver, 175 F.3d 107 (2nd Cir.1999) (holding based on prior Second Circuit authority that inmates have a right to privacy in their HIV and transsexualism status but that such a right was not clearly established in 1991 at the time of disclosure); Doe v. Wigginton, 21 F.3d 733 (6th Cir.1994) (no privacy right in medical information); Anderson v. Romero, 72 F.3d 518 (7th Cir.1995) (no privacy right in confidentiality of medical information); Doe v. Delie, 257 F.3d 309 (3rd Cir.2001) (disclosure of HIV status is protected by the right of privacy). The undersigned has been unable to find any Eighth Circuit or United States Supreme Court precedent that establishes that the right to confidentiality in HIV status in the prison context. Thus, it is with confidence that the undersigned reaches the conclusion that there was no clearly established right in 2003 under the Fourteenth Amendment for an inmate not to have medical information, such as HIV status, disclosed by government actors regardless of whether or not the actors made the disclosure on the basis of a legitimate penological reason.