Friendly, Chief Judge, Hays, Circuit Judge, and Jameson,*fn* District Judge.
This appeal from an order of the District Court for the Southern District of New York, 357 F. Supp. 1217 dismissing complaints in actions under the civil rights statute, 42 U.S.C. § 1983, as jurisdictionally implemented by 28 U.S.C. § 1343(3), relates to the New York State Controlled Substances Act, N.Y.Laws 1972, ch. 878, amending N.Y. Public Health Law §§ 3300-96, effective April 1, 1973, McKinney's Consol.Laws, c. 45.
The Controlled Substances Act represents a comprehensive effort by the State, aimed primarily at controlling the abuse caused by diversion of lawfully manufactured and prescribed dangerous drugs into unlawful uses. Broadly speaking, the scheme of the statute is to classify each such drug in one of five schedules, see Public Health Law § 3306, depending on the degree of harm its abuse may cause and the extent of its lawful medical uses, with restrictions imposed on distribution of the drug varying in accordance with the schedule in which it is placed. Schedule I lists drugs with a high potential for abuse, for which there is no generally recognized medical use, including certain opiates and opium derivatives, various hallucinogenic substances, and marijuana; § 3330 forbids prescribing any such substance except for strictly limited purposes detailed in Title III. Schedule II lists substances having a high potential for abuse leading to severe psychological or physical dependence, but having accepted medical use in some cases; included in this schedule are such major narcotics as cocaine, concentrated codeine, morphine, Demerol, and other opiates, and the amphetamines. Schedule II drugs may be prescribed and dispensed only in the manner hereafter described. Schedules III, IV and V list other drugs of medical utility having progressively less severe effects on the central nervous system; these may be prescribed and dispensed in less onerous ways unnecessary here to detail.
Plaintiffs' complaints are particularly directed at the procedure established for the prescription of Schedule II drugs. Section 3338(2) directs that, except for emergency oral prescriptions,*fn1 substances listed in Schedule II may be dispensed only upon an official New York State prescription form. These forms, to be prepared and issued by the Department of Health in groups of 100, are to be in triplicate and serially numbered, § 3338(1). So far as here relevant, the prescription must contain the name, address and age of the patient; the name, address, registration number, telephone number and handwritten signature of the prescribing practitioner; specific directions for use; and the date upon which the prescription was actually signed, § 3332(2). When the practitioner also dispenses, he must retain the original for five years and file the two copies with the Department of Health not later than the fifteenth day of the month following that in which the substance was delivered, § 3331(6). When dispensing is to be done by a pharmacist, the practitioner must retain a copy for five years, § 3332(4), the pharmacist must retain the original for a like period, and the pharmacist must file a copy endorsed with the date of delivery, the registration number of the pharmacy, and his signature, with the Department of Health not later than the fifteenth day of the month following that in which the substance was delivered, § 3333. The information contained in the prescriptions filed with the Department of Health is afforded some degree of confidentiality by § 3371, which provides:
1. No person, who has knowledge by virtue of his office of the identity of a particular patient or research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:
(a) to another person who by virtue of his office is entitled to obtain such information; or
(b) pursuant to judicial subpoena or court order in a criminal investigation or proceeding; or
(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by this article to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board.
2. In the course of any proceeding where such information is disclosed, except when necessary to effectuate the rights of a party to the proceeding, the court or presiding officer shall take such action as is necessary to insure that such information, or record or report of such information is not made public.
This action against the Commissioner of Health was brought by three infants receiving prescriptions for medications listed under Schedule II, two physicians who prescribe drugs listed under that schedule, and the Empire State Physicians Guild, Inc. A post-operative cancer patient who receives Hycodan and Percodan, both Schedule II drugs, a woman suffering from migraine who receives Demerol, a physician who prescribes for one of these patients, and the American Federation of Physicians and Dentists were permitted to intervene as plaintiffs and also to file a separate complaint. Alleging that the compelled disclosure to the Department of Health of the identity of patients for whom Schedule II drugs have been prescribed unconstitutionally invades the patient's right to privacy, infringes on the doctor's right to prescribe treatment solely on the basis of medical considerations, and discriminates against persons suffering from certain diseases by requiring their identification to a governmental agency as a condition to receiving medical treatment, plaintiffs sought temporary and permanent injunctive relief and asked that a three-judge court be convened, 28 U.S.C. § 2281, to consider their complaint. An affidavit supporting the application for a temporary restraining order annexed a Memorandum to members of the New York Legislature from the Chairman of the Temporary State Commission to Evaluate the Drug Laws, which had proposed the New York State Controlled Substances Act. This Memorandum was submitted because, in addition to elaborating the reasons thought to require the strict control of Schedule II substances, it demonstrated that information from the official prescription would be coded into a computer. The report explained that the computer would be asked certain questions at regular intervals. These questions, which "will be formulated at the highest administrative level," would relate to physicians who had "prescribed and dispensed a greater amount of a Schedule II substance than could possibly be justified by the nature of their practice" and to "situations arising from lost or stolen prescriptions." The Memorandum stated, however, that the proposed plan would not "make use of massive print-outs of patients' names," or, indeed, disclose identifying data about any patient "unless, based upon previous reports, it is clear that such patient has been using stolen or forged prescriptions."*fn2
The district court issued a temporary restraining order against the Commissioner's accepting for filing or processing forms containing the identity of patients receiving prescriptions for Schedule II drugs or requiring physicians or pharmacists to file such forms, and directing the Commissioner to maintain in a sealed vault such forms as were received. It also set an early hearing on the motion to convene a three-judge court. The State responded with a motion to dismiss the complaint. It submitted an affidavit of Dr. Robert Whalen, Second Deputy Commissioner of the Department of Health. This developed the reasons, discussed below, which were thought to require the filing of the prescriptions with the patients' names on them. Dr. Whalen alleged that similar multiple prescription procedures had been in effect in three other states, for considerable periods, with beneficial effects. He also said that the exception in § 3371(1)(a) allowing disclosure "to another person who by virtue of his office is entitled to obtain such information" was "to allow disclosure internally within the Department to those with a controlled substance responsibility." Annexed to his affidavit were a manual of the State Commissioner of Health entitled "Security of Computer Systems," another manual of the State Commissioner of Health dealing generally with confidential information, and a policy statement dealing specifically with security from unauthorized disclosure of information obtained by the Department of Health under the Controlled Substances Act. Relying in part on this affidavit, which the district judge took to demonstrate that the Department of Health was "taking all necessary steps to maintain the security of the computerized information," he found no substantial constitutional question and dismissed the complaint for lack of federal jurisdiction. He continued the temporary restraining order for three days to allow plaintiffs to seek a further stay from this court after filing notice of appeal, and another panel of this court continued so much of it as required the Commissioner to retain prescriptions received in a sealed vault pending an expedited appeal.*fn3
In the face of recent strong advocacy of the abolition of the three-judge court requirement in constitutional cases,*fn4 a unanimous Supreme Court has just defined the standard permitting a single judge to dismiss a complaint seeking an injunction on the ground of unconstitutionality in the most limiting terms the Court has ever used. In Goosby v. Osser, 409 U.S. 512, 516, 93 S. Ct. 854, 858, 35 L. Ed. 2d 36 (1973), it said:
Section 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. "Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 551, 7 L. Ed. 2d 512 (1962), "wholly insubstantial," ibid, "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 327, 54 L. Ed. 482 (1910), "obviously without merit," Ex parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 4-5, 78 L. Ed. 152 (1933). The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of ...