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tional privacy right remains Whalen v. Roe.8 In Whalen, the Court accepted that the right to privacy includes a generalized "right to be let alone," which includes "the individual interest in avoiding disclosure of personal matters." Despite finding a theoretical right to avoid disclosure of intimate personal matters, however, in Whalen the Court allowed New York State to keep a computerized list of prescription records for dangerous drugs and to require physicians to disclose the names of patients for whom they prescribed those drugs. The decision balanced the social interest in informational privacy against the state's ''vital interest in controlling the distribution of dangerous drugs." Finding New York's program to be narrowly tailored and replete with security provisions designed to reduce the danger of unauthorized disclosure, the Supreme Court held that the constitutional balance tilted in favor of the statute. Despite upholding the mandatory compilation and disclosure of prescription data, the Court left the door open to future restrictions in light of technical change, noting that it was "not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files." In so doing, the Court set the stage for claims that the Constitution embodies a right to informational privacy, although the Court has yet to expand on this idea in any significant way.9 Despite the considerable power of the decision, lower courts have not capitalized on this constitutional doctrine's promise for improving health care privacy.10
Weaknesses also exist in the Americans with Disabilities Act (ADA).11 This statute has proven less than efficacious in protecting medical privacy. To begin with, health information per se is not covered by this law. Rather, the ADA's applicability turns on whether or not an impairing condition fits among those conditions that have been found to fall within
429 U.S. 589 (1977).
429 U.S. 599-604 (1977). An alternative view is provided by A. Michael Froomkin (see "Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases," available on the World Wide Web at www.law.miami.edu/-froomkin/articles/oceanno.htm).
See, for example, Doe v. Attorney General, 941 F.2d 780, 795 (9th Cir. 1991); American Civil Liberties Union v. Mississippi, 911 F.2d 1066, 1069-1070 (5th Cir. 1990); Walls v. City of Petersburg, 895 F.2d 188, 192-194 (4th Cir. 1990); Gitorerrez v. Lynch, 826 F.2d 1534, 1539 (6th Cir. 1987); Mann v. University of Cincinnati, 824 F.Supp. 1190, 1198-1199 (S.D. Ohio 1993); Doe v. Borough of Barrington, 729 F.Supp. 376, 382 (D.N.J. 1990).
42 U.S.C. §§12111-12117. See Miller, Frances H., and Philip A. Huvos. 1994. "Genetic Blueprints, Employer Cost-Cutting, and the Americans with Disabilities Act," Administrative Law Review 46(369):383. ("Disabilities law has not yet caught up with the recent explosion in genetic technology that now facilitates testing for a wide range of genetic anomalies potentially detrimental to employee health.")