Hard cases, bad law, and the right to privacy

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(Host) Commentator Cheryl Hanna has been thinking about hard cases, bad law and the right to privacy.

(Hanna) Lawyers often say that hard cases make bad law. A recent case in Iowa has got me thinking about just how true that aphorism is.

Last May, the remains of a newborn baby, less than two days old, was found at a recycling center. Iowa, indeed the nation, was horrified. To make matters worse, the county attorney didn’t have a clue who the mother was. Not one.

I used to be a prosecutor, and I’ll tell you, the worst kind of case, the one that creates a sick feeling in your stomach, the one that calls upon your inner sense of justice, and revenge, is a case involving an innocent child. So I can understand the prosecutor’s motivation when he subpoenaed the medical records of all local women who had had a positive pregnancy test over the relevant nine month period from doctors and family planning clinics, even though he had no evidence that the mother had ever sought treatment from any clinic, or that she even lived in Iowa.

Planned Parenthood refused to comply, and filed a lawsuit. It was joined by a woman only identified as Janice Roe. She and her husband had been thrilled to learn they were pregnant after a positive test taken at another area clinic. Six weeks later, an ultrasound revealed that the fetus had no heartbeat, and the couple was devastated. Imagine their grief, and pain, and feelings of betrayal when someone from law enforcement called to find out what had happened to their pregnancy.

Iowa, like Vermont, protects doctor-patient confidentiality. The law is very stringent, and meant to keep sacred the relationship between patient and doctor. The prosecutor argued that a pregnancy test isn’t medical in nature when administered by someone other than a doctor. A lower court agreed, and ordered Planned Parenthood to turn over the records.

So why should we here in Vermont be concerned about a case in Iowa? Well, this case has far less to do issues of reproductive rights as some have argued – than it has to do with the right to be free from unreasonable government intrusion into our private lives. And that right can be chipped away at slowly, one case, and one state, at a time.

Law enforcement officials, in their well-intentioned zeal to hold someone accountable for a horrible crime, simply can’t go on a fishing expedition that exposes the most intimate and personal details of the lives of thousands of innocent people. There’s harm in having your privacy violated, even if you think you have nothing to hide.

I hope the Iowa Supreme Court, which recently agreed to review the case, doesn’t let a hard case produce a really bad law. Sometimes prosecutors, indeed, all of us, have to live with the fact an unsolved mystery is the price we pay for the certainty of freedom.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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