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April 10, 1973

Richard ROE, an infant, by Robert Roe, his parent, et al., Plaintiffs, and George Patient et al., Intervenors,
Hollis S. INGRAHAM, as Commissioner of Health of the State of New York, Defendant

Robert L. Carter, District Judge.

The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge:

The plaintiffs have made a narrow attack upon the comprehensive New York Controlled Substances Act, N.Y. Public Health Law § 3300 et seq. (McKinney's Consol. Laws, c. 45 Supp. 1972), which attempts to regulate virtually all facets of the use and distribution of drugs in this state for which a prescription is required. The plaintiffs object only to those sections, specifically §§ 3331(6), *fn1" 3332(1), (2)(a), *fn2" 3333(1), (4), *fn3" 3338 (2), *fn4" which, in combination, require physicians and pharmacists to file with the state copies of prescriptions for certain drugs which are described in detail in the statute under the heading of "Schedule II" drugs, § 3306. Concededly, although the statute does not require it, the state will enter the information it receives, including the name of the patient for whom the drug is prescribed, into a computer file. It is this mechanized collation of data, pursuant to which the state will have on file the names and addresses of patients who are users of prescribed drugs, that constitutes the gravaman of plaintiffs' complaint.

 On March 29, 1973 the plaintiffs *fn5" petitioned this court for an order to show cause on a motion to convene a three judge court pursuant to 28 U.S.C. §§ 2281, 2284 on the ground that plaintiffs sought preliminary and permanent injunctions restraining the implementation of certain sections of the New York Controlled Substances Act (which was to become effective on April 1, 1973), which were allegedly constitutionally infirm. The plaintiffs further sought a temporary restraining order which would stay the implementation of the Act pending determination of the merits. The court heard all counsel and signed the order *fn6" setting oral argument for Friday, April 6, 1973.

 Plaintiffs make a two pronged attack on the legislation. First, it is argued that the statute is an unconstitutional invasion of the patient's right to privacy, and second, that the statute creates classifications which do not comport with the dictates of the equal protection clause.

 I consider first the equal protection argument. The law in this complex area is currently in a state of flux, see, e.g., Gunther, The Supreme Court 1971 Term Foreword: In Search of Evolving Doctrine on a Changing Court, 86 Harv. L.R. 1 (1972), as evidenced by such cases as James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); and Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).

 The Court of Appeals in this Circuit has recently characterized the appropriate test as "whether the legislative classification is in fact substantially related to the object of the statute." Boraas v. The Village of Belle Terre (2d Cir. 1973), 476 F.2d 806 at 814.

 Applying this test I find no constitutional infringement that can be said to pose a substantial federal question. It is of course true, that patients legitimately receiving Schedule II drugs are treated differently than those who are either receiving Schedule III, IV or V drugs, those receiving no drugs at all, or those who are classified as addicts. But this is only improper if the treatment afforded Schedule II users does not substantially further the ends of the statute.

 It is rarely easy to pinpoint with precision a statute's "purposes." Here the goal is obviously at least in part to control certain illegal drug uses by doctors, pharmacists and patients. The plaintiffs intimate that the more lenient reporting standards required of Schedules III, IV and V users make the statute underinclusive and therefore void. This conclusion however results from a misstatement of purpose rather than a defect in the statute. As explained in the Memorandum of Assemblyman Chester Hardt, Chairman of the Temporary State Commission to Evaluate the Drug Laws, the state, by choosing to rely on voluntary and virtually unreviewed compliance with the law as it pertains to the less dangerous drugs of Schedules III, IV and V, sought not only to control drugs effectively but also to limit the intrusion into personal affairs. Thus restricting the new reporting requirements to Schedule II users in fact was consonant with the legislative goals.

 The plaintiffs also contend that the statute, by imposing stricter confidentiality requirements to an addict's records *fn7" than it does to the records of a Schedule II drug user, *fn8" is irrational and unconstitutional. The Controlled Substances Act deals at some length with distributions of drugs to addicts, Title V, §§ 3350-3356, and attempts to make provision for the effective treatment and rehabilitation of addicts in "maintenance programs." It is well known that addicts have generally been quite reluctant to participate in drug programs. One can well assume that active police surveillance of these programs would generate additional hostility among the addict population. The legislature, recognizing that addicts would be particularly reluctant to join treatment programs if their records were available to the police, imposed especially rigid confidentiality standards for addicts' files. It is evident, therefore, that § 3356 rationally promotes a valid and legitimate state interest and that the differing treatment afforded Schedule II users and addicts does no violence to any strictures imposed by the equal protection clause.

 The only remaining question is whether the system devised does in fact further the objectives of the statute. The conclusion that it does seems unavoidable. Through the use of this system the state will more effectively be able to investigate and control such drug related abuses as forgeries, prescriptions to fictitious persons, patients receiving dangerous drugs from a number of different doctors, and similar activity. Based upon the evidence presented to me, especially the affidavit of Dr. Robert Whalen, Second Deputy Commissioner of the New York State Department of Health and the Interim Report of the Temporary State Commission to Evaluate the Drug Laws, I can only conclude that the system of reporting required by the statute directly and substantially effectuates the state's legitimate interests as expressed by the Act.

 The right to privacy, to which I now direct my attention, is more difficult primarily because the issue has only recently clearly emerged as a basic constitutional consideration. It is not necessary here to expound upon the historical antecedents and the current flowering of that right. We are all aware of course that Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) solidified privacy's constitutional status and that since that decision numerous extensions of its essence have occurred. See, e.g., United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) and, to some extent, the recent decisions of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

 The case at bar, however, is significantly distinguishable from each of those cases and from any case cited to the court by counsel. The fundamental thrust of this lawsuit might be made clearer by briefly discussing what is not involved here.

 First, this is not a case where the state has launched a broad scale invasion into the doctor-patient relationship requiring the publication of the entire medical history and treatment record. Indeed, contrary to plaintiffs' suggestion, even the illness for which a Schedule II drug is prescribed need not be revealed.

 Second, the statute on its face does not permit unrestricted divulgence of even the limited information collected. In fact § 3371 confines disclosure to the extent consistent with the purposes of the Act. I have also been presented with the memorandum of Assemblyman Hardt and the affidavit of Commissioner Whalen, both of whom appear to be taking all necessary steps to maintain the security of the computerized information.

 Finally, this is not a case where the plaintiffs have been able to prove actual abuse of the reporting and computerizing process and consequently to argue facial unconstitutionality based upon pragmatic or historical evidence; that is that such process necessarily and inevitably results in abuse.

 In order to further appreciate the essence of plaintiffs' privacy argument, it is necessary to consider the status of the law prior to April 1, 1973. Insofar as the issues involved in this lawsuit are concerned, the only effective distinction is that the new statute requires sending a copy of each prescription for Schedule II drugs to Albany to be computerized. Previously prescriptions required the name of the patient, N.Y. Public Health Law § 3301(32) (McKinney 1971) (repealed 1973), the pharmacist was required to keep a copy of the prescription, Id. at § 3322, and law enforcement officials had complete access to the druggists prescription files, Id. at §§ 3322(1)(c), 3334. In short, the state had the power to learn all that it may now require to be revealed. The only difference is that now the state has developed the means to make effective use of that basic power which remains unchallenged.

 I must confess, however, that plaintiffs' claims fall upon sympathetic ears. I share with the plaintiffs a deep concern about the ultimate consequences of overzealous data collection and instant data retrieval. I recognize the dangers in a society which permits the government to know the intimacies of its citizens' lives and especially the consequences to those people against whom such information is maliciously or malevolently used. And I realize the potential for individual harm consequent upon errors of fact becoming imprinted upon unforgiving tapes.

 Yet computers, computer banks -- the new technology -- are facts of present day life. Courts can be no more effective than Canute in turning back the tide. It cannot be contended, at least not seriously, that governmental use of this new technology is constitutionally impermissible. And that is the fundamental and basic question which is being raised.

 It may well be that courts will be required to establish guidelines and set standards but that is not this case. I do not believe that the United States Constitution proscribes state use of computer lists which contain the names of patients as is provided for under this statute.

 The motions for preliminary and permanent injunctions are denied and the temporary restraining order is dissolved. The complaints are dismissed for want of a substantial federal question.

 So ordered.

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