Constitutional Confidentiality

Imagine a researcher studying the impact of the Supreme Court’s decision overturning Roe v. Wade on access to different forms of reproductive health care, as well as the impact on health outcomes. While the research will provide important public health information about the health impact of state policies adopted in the wake of the Court’s decision, it also poses a legal risk to the patients and health care providers who participate in it. Congress created the Certificate of Confidentiality, a federal statutory tool designed to shield such data from compelled disclosure (like a subpoena), to facilitate critical research while protecting individual participants. But, despite their 50-year history, stakeholders who rely on them still express concerns about whether Certificates will hold up in court.

In this presentation, we analyzed the fundamental constitutional underpinnings of Certificates to respond to those concerns. Our constitutional analysis concludes that the Certificate statute falls well within Congress’s authority under the Commerce Clause. Moreover, we situate Certificates in the context of federal statutory privileges and other federal regulation of access to sensitive data. Those comparisons demonstrate the strength of the statutory privilege Congress established. Finally, we considered constitutional doctrines limiting both congressional power and evidentiary privileges to illuminate how these doctrines may require Certificate protections to give way in truly exceptional cases. Combined, these analyses provide welcome reassurance about the strength of Certificates in protecting individuals who share sensitive information to advance research, while advancing understanding of this important research tool.

Laura Beskow – Unaffiliated – Unaffiliated; Jorge Contreras – S.J. Quinney College of Law – University of Utah; Natalie Ram – Carey School of Law – University of Maryland