Civility: The rule of law and privacy post-Roe

There are many different definitions of the rule of law. Fundamentally, the rule of law “is the foundation for communities of justice, opportunity, and peace – underpinning development, accountable government, and respect for fundamental rights. Research shows that the rule of law correlates to higher economic growth, greater peace, less inequality, improved health outcomes, and more education.” It is premised on civility and applies to all citizens in the United States – regardless of their position.

In medicine, the right of privacy is an item that has been respected for eons. In the United States, one needs only to look to the United States Supreme Court Opinion in Union Pac. Railroad Co. v. Botsford, 141 U.S. 250 (May 25, 1891), which held:

• An injured woman’s right to refuse examination by the railroad company’s doctor.
• To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity.
• No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.
• Quoting another judge, they added: “[t]he right to one’s person may be said to be a right of complete immunity: to be let alone.”

In the practice of medicine, privacy exists in various contexts including the ability of a patient with decision making capacity to self-discharge against medical advice (“AMA”) from a healthcare facility contrary to what his or her physician(s) perceive to be in the patient’s best interests, and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA"), which gives patients the right over their health information are two examples of privacy in healthcare. While there are exclusions which allow an individual’s protected health information (“PHI”) to be utilized and shared for purposes set forth in the law, there are exceptions, which require either patient consent, notice, or appropriate due process procedures in order to preserve an individual citizen’s Constitutional rights in the United States.

Prior to the repealing of Roe v. Wade by the United States Supreme Court Opinion in Dobbs v. Jackson Women’s Health Organization (Decided June 24, 2022), there was a legacy that a right to privacy stems from the 1st, 4th, 5th, 9th, and 14th Amendments. In essence, there are guarantees in the Bill of Rights that create a “zone of privacy” but the Majority in Dobbs did not adopt that approach.

From a healthcare standpoint, it is imperative for providers to appreciate that HIPAA does apply and that the law enforcement exception exists (45 CFR § 164.512(e), (f)) serves to preserve both the privacy and due process rights of an individual.

In sum, the implications of Dobbs encroach into a variety of areas of privacy rights for both men and women. The rule of law serves as an equalizer so that everyone is held to the same laws, regardless of their status. When evaluating state laws or proposals, providers and other entities need to consider an individual’s rights, as well as those inherent in the U.S. Constitution.

Rachel V. Rose, JD, MBA, advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.