by Sherry F. Colb
In my Verdict column for this week, I examine the case of Los Angeles v. Patel. In particular, I discuss the significance of the majority's decision to rely on the abortion facial challenges analysis in Planned Parenthood v. Casey to inform its handling of the Fourth Amendment facial challenges question presented by Patel. In this post, I want to call attention to another interesting parallel between the Court's handling of Fourth Amendment privacy, on the one hand, and abortion, on the other.
When the Supreme Court first ruled that the Constitution protects abortion, in Roe v. Wade, it focused quite a bit on the doctor's role in making the decision whether to terminate a pregnancy. With respect to the first trimester, for example, the Justice said that "the attending
physician, in consultation with his patient, is free to determine,
without regulation by the state, that, in his medical judgment, the
patient's pregnancy should be terminated."
Though the decision in Casey has since supplanted Roe and is (properly) much more focused on the woman (with a concurrence by Justice Blackmun characterizing forced pregnancy as a species of enslavement) rather than the doctor, the oddity of highlighting the doctor in Roe itself is still noteworthy. It essentially looks to the provider of services that constitute the right to privacy as the holder of that right itself.
This odd formulation appears in Patel as well, though for different reasons. In Patel, it is the people who operate hotels who come to the U.S. Supreme Court asserting a right to privacy in the personal information about their guests kept in the hotel registries. There is no discussion in Patel of the privacy rights of the hotel guests themselves, who are presumably going to be the most concerned about government snooping into private, identifying information about guests contained in the registries. Yet the Supreme Court does find that hotel operators have a Fourth Amendment privacy right in the information contained in those registries (because the registries are the hotel's property) and ultimately finds as well that the challenged statute is facially invalid under the Fourth Amendment.
In Roe, the emphasis on doctors likely reflects Justice Blackmun's tremendous respect for physicians acquired from his own experience serving as general counsel to the Mayo Clinic in Rochester for nine years. In Patel, by contrast, the Court does not exhibit any special respect or affection for hotel operators. Instead, the people bringing the case are hotel operators, and their customers cannot join them in their suit because of the third-party doctrine, elaborated in detail in this column. Briefly, the third-party doctrine holds that (often, though not always), a private person's handing over information to another private person or entity (such as a bank or a telephone company) constitutes a relinquishment of any Fourth Amendment right to privacy from governmental surveillance of that information. In a fascinating article entitled Fourth Amendment Fiduciaries, to be published in the Fordham Law Review, Kiel Robert Brennan-Marquez argues that not only is this doctrine wrong, but private parties to whom personal information has been entrusted should sometimes themselves be barred by the Fourth Amendment from sharing such entrusted information with the government, even without governmental initiation.
In one sense, it is quite understandable that providers of privacy would often be best situated to litigate the rights of those to whom privacy is provided. In Griswold v. Connecticut, the providers of contraception had prudential standing to challenge laws prohibiting contraceptive use, and they were able to litigate strongly, without embarrassment, to protect both their business interests and their customers' privacy interests. Hotel guests and women who seek abortions likewise rely on hotel operators and abortion providers, respectively, to offer them a safe haven and provide the services they need, so it may not be surprising to find the same providers litigating on their behalf when the time comes. It is unfortunate, though, to have the law ignore the underlying privacy interests or vest them entirely in their providers, given whose interests are most squarely implicated. And Brennan-Marquez makes an important contribution in arguing that the privacy interests are not truly safe from the government unless the law recognizes a further obligation on the part of the providers to respect their customers' privacy enough to hold it sacred, regardless of whether the government is seeking its exposure or not. Needless to say, Brennan-Marquez deals with the obvious "state action" objection to his position. I recommend that people read his article.