Reconsidering Constitutional Protection for Health Information Privacy

80 Pages Posted: 20 Jun 2016 Last revised: 27 Jul 2016

See all articles by Wendy K. Mariner

Wendy K. Mariner

Boston University School of Public Health; Boston University - School of Law

Date Written: November 17, 2015


What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special needs doctrine, as well as Fifth and Fourteenth Amendment cases examining health information privacy reveals quasi-precedents of limited relevance for evaluating mandatory reporting of health information. This lack of clarity calls for a more sophisticated approach to contemporary civil uses of health data.

Suggested Citation

Mariner, Wendy K., Reconsidering Constitutional Protection for Health Information Privacy (November 17, 2015). 18(3) University of Pennsylvania Journal of Constitutional Law 975 (2016), Boston Univ. School of Law, Public Law Research Paper No. 15-56, Available at SSRN: or

Wendy K. Mariner (Contact Author)

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-358-3160 (Phone)
617-414-1464 (Fax)

Boston University - School of Law ( email )

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Boston, MA 02215
United States

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