Application for stay of a three-judge District Court's judgment
declaring unconstitutional provisions of New York Public Health Law
requiring names and addresses of patients receiving certain
prescription drugs to be reported to applicant Commissioner of
Health, and enjoining enforcement of those provisions and
acceptance of incoming prescriptions disclosing patients'
identities, is denied, no showing having been made that applicant
would suffer irreparable injury as a result of the denial of a
See: 403 F. Supp.
MR. JUSTICE MARSHALL, Circuit Justice.
This is an application for a stay of the judgment of a
three-judge court sitting in the Southern District of New York. The
applicant, the Commissioner of Health of the State of New York, has
been enjoined by the three-judge court from enforcing certain
provisions of New York's Public Health Law (Law). Respondents are
various physicians, organizations of physicians, and patients in
the State of New York who successfully brought suit to have those
provisions declared unconstitutional.
The provisions at stake are those parts of §§ 3331(6),
3332(2)(a), and 3334(4) of the Law (Supp. 1974) that require the
name and address of each patient receiving a Schedule II controlled
substance to be reported to the applicant. Schedule II drugs are
those that have a high potential for abuse, but also have an
accepted medical use. They include opiates and amphetamines. Under
the Law, a doctor prescribing a Schedule II drug does so on a
special serially numbered triplicate prescription
Page 423 U. S. 1314
form. One copy is retained by the doctor, a second goes to the
pharmacist (if applicable), and the last copy goes to the
applicant, who transfers the data, including the name and address
of the patient, from the prescription to a centralized computer
Respondents brought this action shortly after the effective date
of the computerization program, alleging violations of their
constitutional rights under 42 U.S.C. § 1983 and grounding
jurisdiction on 28 U.S.C. § 1343(3). Specifically, respondents
claimed that mandatory disclosure of the name of a patient
receiving Schedule II drugs violated the patient's right of privacy
and interfered with the doctor's right to prescribe treatment for
his patient solely on the basis of medical considerations. A
three-judge court was convened. Roe v. Ingraham,
102 (CA2 1973).
At trial, various respondents testified that they were inhibited
from using or prescribing Schedule II drugs they otherwise found
beneficial because of a reluctance to disclose their or their
patients' identities to the State. While questioning respondents'
standing to sue, the applicant asserted that knowledge of patients'
names was necessary to enable the computer system to detect drug
abuse. When put to its proof by respondents, however, the applicant
eventually conceded that the names and addresses of patients were
useful in detecting only one abuse: patients who go from doctor to
doctor (using the same name on each visit) in order to obtain an
excessive supply of drugs. Thereupon respondents showed that, in 15
months of operation the computer system had located only one
suspected "doctor-shopper" while processing over 125,000
prescriptions per month. Thus, respondents contended that the
centralization of patients' names and addresses served no
compelling state interest sufficient to offset the asserted
invasion of privacy.
Page 423 U. S. 1315
The three-judge court accepted respondents' arguments. The court
read our decisions in Roe v. Wade, 410 U.
(1973), and Doe v. Bolton, 410 U.
(1973), as placing the doctor-patient
relationship among those zones of privacy accorded constitutional
protection. While noting that Roe
concerned the most intimate of personal relations, sexual intimacy
and the decision to bear a child, the court refused to hold the
doctor-patient relationship constitutionally protected only when
matters of childbearing were at stake. Rather, it noted the
intimate nature of a patient's concern about his bodily ills and
the medication he takes, and held that these matters, too, are
protected by the constitutional right to privacy. While reaching
this conclusion primarily on the basis of Roe
the court drew some support from the concurring and
dissenting opinions in California Bankers Assn. v. Shultz,
416 U. S. 21
416 U. S. 78
(1974) (POWELL, J., concurring); id.
at 416 U. S. 79
(DOUGLAS, J., dissenting); id.
at 416 U. S. 91
(BRENNAN, J., dissenting); id.
at 416 U. S. 93
(MARSHALL, J., dissenting); which it read as indicating that a
majority of this Court would accord constitutional protection, at
least against a wholesale reporting requirement, to all "intimate
areas of an individual's personal affairs." Id.
416 U. S. 78
(POWELL, J., concurring). Upon finding that respondents had a
protected privacy interest in the medication they received, the
court balanced that interest against the State's need for patients'
names, and concluded that, with one suspect uncovered over 15
months, the need shown was ephemeral. "The diminution of a
constitutionally guaranteed freedom is too great a price to pay for
such a small governmental yield." Roe v.
Ingraham, 403 F.
, 937 (SDNY 1975) (footnote omitted).
Finding those portions of the Law that demanded disclosure of
patients' names and addresses to the State to
Page 423 U. S. 1316
be unconstitutional on the facts, the court enjoined the State
from enforcing those provisions and from accepting for filing
prescriptions or other documents disclosing the identities of
patients receiving Schedule II drugs. The court also ordered the
destruction of any name-bearing prescription forms in the State's
possession and the expungement of names from all computer records.
The court stayed the destruction and expungement order pending
disposition of the case by this Court; it refused, however, to stay
its declaration of unconstitutionality and its injunction against
enforcement of the provisions and acceptance of incoming
Thus, the application for stay now before me concerns only those
matters the District Court refused to stay. The principles that
govern a Circuit Justice's in-chambers review of stay applications
are well known. A single Justice will grant a stay only in
extraordinary circumstances. Certainly the judgment of the lower
court, which has considered the matter at length and close at hand,
and has found against the applicant both on the merits and on the
need for a stay, is presumptively correct. To prevail here, the
applicant must meet a heavy burden of showing not only that the
judgment of the lower court was erroneous on the merits, but also
that the applicant will suffer irreparable injury if the judgment
is not stayed pending his appeal.
MR. JUSTICE POWELL has succinctly stated the considerations
pertinent to evaluating these two factors:
"As a threshold consideration, Justices of this Court have
consistently required that there be a reasonable probability that
four members of the Court will consider the issue sufficiently
meritorious to grant certiorari or to note probable jurisdiction.
See Mahan v. Howell, 404 U. S. 1201
, 404 U.
; Organized Village of Kake v. Egan,
S. Ct. 33, 4 L. Ed.2d
Page 423 U. S. 1317
34 (1959). Of equal importance in cases presented on direct
appeal -- where we lack the discretionary power to refuse to decide
the merits -- is the related question whether five Justices are
likely to conclude that the case was erroneously decided below.
Justices have also weighed heavily the fact that the lower court
refused to stay its order pending appeal, indicating that it was
not sufficiently persuaded of the existence of potentially
irreparable harm as a result of enforcement of its judgment in the
Graves v. Barnes, 405 U. S. 1201
405 U. S.
-1204 (1972) (POWELL, J., in chambers). See also
Aberdeen & Rockfish R. Co. v. SCRAP, 409 U.
, 409 U. S.
(1972) (BURGER, C.J., in chambers); Railway
Express Agency v. United States,
82 S. Ct. 466, 468, 7 L. Ed.
2d 432, 434 (1962) (Harlan, J., in chambers); United Fuel Gas
Co. v. Public Service Comm'n, 278 U.
, 278 U. S. 326
Applying these standards to the application before me, I
conclude a stay should not be granted. The three-judge court gave
careful consideration to applicant's motion for a stay and, indeed,
granted one insofar as it deemed necessary to prevent irreparable
harm to applicant's interests. Applicant has shown nothing to
persuade me the lower court erred. If applicant's position is
sustained on appeal, all the data it is precluded from processing
by the District Court's order will be readily available from the
State's doctors and pharmacists, who are required by law to retain
the complete prescription form for five years. The information now
denied the State's computers can thus, be located and tabulated at
a later date. While the State may suffer delay in the complete
implementation of its computerization program, delay alone is not,
on these facts, irreparable injury.
I conclude that applicant would suffer no irreparable
Page 423 U. S. 1318
injury if a stay is denied. This conclusion necessarily decides
the application and renders unnecessary consideration of the
possibility, since this case involves an appeal as of right, that
applicant will be able to convince five Justices to reverse the
three-judge court. I do note, however, that the right to privacy is
a sensitive and developing area of the law and that the three-judge
court did not apply it in a manner plainly inconsistent with our
decisions. Likewise, the court's conclusion that respondents had
standing seems in accord with the liberal standing decisions of
this Court. Of course, this conclusion and my denial of a stay on
the papers now before me are not to be taken as a reflection of my
views on the merits of this case, or as an indication of the
ultimate disposition of the case in this Court.
The appiction is denied.