In the Supreme Court of the State of Iowa

IN THE SUPREME COURT OF THE STATE OF IOWA

No. 02-1191

Planned parenthood

Plaintiff,

Iowa district court

Defendant,

On Writ of Certiorari to the District Court in and for Buena Vista County (Hon. Frank B. Nelson, District Judge)

BRIEF OF joan and lyle middleton center for children’s rights, drake university law school

Amicus Curiae

Gregory C. Sisk
Robert R. Rigg
Suzanne J. Levitt
Drake Legal Clinic
2400 University Avenue
Des Moines, Iowa 50311
(515) 271-4184 FAX: (515) 271-2530

Attorneys for Middleton Center for Children’s Rights, Drake University Law School, Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES...... iv

STATEMENT OF THE ISSUES...... 1

INTEREST OF AMICUS CURIAE, JOAN AND LYLE

MIDDLETON CENTER FOR CHILDREN’S RIGHTS,

Drake University Law School...... 4

STATEMENT OF THE CASE...... 6

SUMMARY OF ARGUMENT...... 7

I.Because Identification of Large Numbers of Women Who

Tested Positive for Pregnancy at a Medical Clinic is of

Remote and Speculative Value to a Criminal Investigation

into the Death of an Unidentified Newborn and Because

of the Oppressive and Intrusive Nature of the Request for

Profoundly Personal Information about Innocent

Third-Persons, the Investigative Subpoena Should

Be Quashed...... 10

A.Iowa Should Adopt a Probable Cause Standard for

Criminal Investigative Subpoenas, At Least As Applied

to the Extraordinary Subpoena in This Case Which

Effectively Constitutes a General Search Warrant

Demanding Profoundly Personal Information About

a Large Class of Innocent Third-Persons...... 11

B.Even Evaluated Under a Less Exacting Standard, the

Subpoena Issued in This Case Cannot Be Sustained

Given the Attenuated Justification for the Request,

the Remote and Speculative Value of the Information

Sought to the Investigation, and the Oppressive and

Intrusive Nature of the Demand...... 17

1.By Failing to Specifically Link Information

Purportedly Possessed by Planned Parenthood to

Investigation of a Criminal Act by a Particular

Person, the County Prosecutor Has Failed to

Demonstrate That the Subpoena is Reasonably

Connected to a Bona Fide Criminal

Investigation...... 19

2.Because the Intrusive and Oppressive Nature of

the Overbroad Subpoena Outweighs the Remote

and Speculative Value of the Information Sought

to a Criminal Investigation, the Subpoena Fails to

Satisfy the Basic Requirement of Relevance...... 22

II.Medical Records of Women Who Have Undergone Pregnancy

Tests at a Medical Clinic are Protected by the Physician-Patient

Privilege and by Constitutional and Statutory Rights of Privacy

and May Not Be Obtained Pursuant to a Prosecutor’s

Subpoena...... 30

A.Medical Records Created for the Purpose of Obtaining

Professional Medical Services Constitute Confidential

Communications Protected by the Physician-Patient

Privilege and the Constitutional Right of Privacy...... 30

B.Because the Subpoena Here Seeks Direct Access to

Records About Individual Medical Diagnosis and Because

the Information Sought Will be Used by Law

Enforcement to Seek Further Disclosure of Confidential

Information About Medical Treatment, This Matter is

Readily Distinguishable from Chidester v. Needles

Which Authorized a Subpoena to Obtain Financial

Billing Information From a Medical Clinic...... 33

C.In Addition to Being Distinguishable, Chidester v.

Needles is an Aberrational Exception to This Court’s

Decisions Upholding and Broadly Applying the

Physician-Patient Privilege to Medical Records and

Should be Overruled...... 37

III.Buena Vista County’s Subpoena for the Names of Women and

Girls Who Associated With Planned Parenthood by Receiving

Medical Services Violates Their Constitutional Right of

Association as Protected by the First Amendment of the

United States Constitution and by Article I, Section 7, of

the Iowa Constitution...... 42

IV.If This Court Should Remand This Matter for Further

Proceedings, the Middleton Center for Children’s Rights

Requests That It Be Appointed as Guardian Ad Litem to

Directly Represent the Interests of Minor Girls Whose

Confidential Information May be Included in the Records Sought

by the County Attorney From Planned Parenthood...... 46

CONCLUSION...... 48

CERTIFICATE OF SERVICE

CERTIFICATE OF FILING

TABLE OF AUTHORITIES

Cases:

United States Supreme Court:

Bates v. City of Little Rock, 361 U.S. 516 (1960)...... 44

Buckley v. Valeo, 424 U.S. 1 (1976)...... 43

Gibson v. Florida Legislative Investigation Committee,

372 U.S. 539 (1963)...... 17

Go-Bart Importing Co. v. United States, 282 U.S. 344

(1931)...... 11-12

NAACP v. Alabama, 357 U.S. 449 (1958)...... 44

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186

(1946)...... 14

Thornburgh v. American College of Obstetricians, 476

U.S. 747 (1986)...... 32

United States v. R. Enterprises, Inc., 498 U.S. 292

(1991)...... 24

Whalen v. Roe, 429 U.S. 589 (1977)...... 32

Iowa Supreme Court:

Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984)...... 20, 33-34, 36-41

In re Adoption of S.J.D., 641 N.W.2d 794 (Iowa 2002)...... 28

McMaster v. Iowa Board of Psychology Examiners, 509

N.W.2d 754 (Iowa 1993)...... 32, 34-36

Newman v. Blom, 89 N.W.2d 349 (Iowa 1958)...... 37, 39

Pattison Brothers Mississippi River Terminal, Inc. v.

District Court, 630 N.W.2d 782 (Iowa 2001)...... 18, 20-22

Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d

353 (Iowa 1986)...... 31

State v. Barger, 511 N.W.2d 632 (Iowa App. 1993)...... 13

State v. Breuer, 577 N .W.2d 41 (Iowa 1998)...... 15

State v. Cline, 617 N.W.2d 277 (Iowa 2000)...... 13-15

State v. Deases, 518 N.W.2d 784 (Iowa 1994)...... 30-31

State v. Height, 117 Iowa 650, 91 N.W. 935 (Iowa 1902)...... 14

State v. Kelly, 353 N.W.2d 845 (Iowa 1984)...... 13, 18-20, 22

State v. Naujoks, 637 N.W.2d 101 (Iowa 2001)...... 13

State v. Olsen, 293 N.W.2d 216 (Iowa 1980)...... 14

State v. Poulin, 620 N.W.2d 287 (Iowa 2000)...... 13

State v. Predka, 555 N.W.2d 202 (Iowa 1996)...... 15

State v. Prior, 617 N.W.2d 260 (Iowa 2000)...... 12

State v. Sanders, 623 N.W.2d 858 (Iowa 2001)...... 38-41

State v. Swain, 412 N.W.2d 568 (Iowa 1987)...... 14

Other Courts:

In re Grand Jury, 194 F.R.D. 384 (D. Mass. 2000)...... 25

In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984)...... 24-25

Local 1814, Int’l Longshoreman’s Ass’n, AFL-CIO v.

Waterfront Commission, 512 F. Supp. 781

(S.D.N.Y.), aff’d, 667 F.2d 267 (2d Cir. 1981)...... 43

People ex rel. Bernardi v. Lawrence & Ahlman, Inc.,

434 N.E.2d 503 (Ill. App. 1982)...... 25

State v. Nelson, 941 P.2d 441 (Mont. 1997)...... 16, 35

Thurman v. State, 861 S.W.2d 96 (Tex. App. 1993)...... 35

Constitutional Provisions:

United States Constitution:

Amendment I...... 43, 45

Amendment IV...... 12, 14

Amendment XIV...... 32

Iowa State Constitution:

Article I, Section 7...... 43, 45

Article I, Section 8...... 12, 14

Statutes and Court Rules:

Iowa Code § 622.10...... 31, 33, 39-40

Iowa Code § 808.3...... 12

Iowa Rule of Criminal Procedure 2.5(6)...... 13

Iowa Rule of Civil Procedure 1.212...... 47

Iowa Rule of Civil Procedure 1.504(1)(a)(1)...... 23

- 1 -

STATEMENT OF THE ISSUES

I.Because Identification of Large Numbers of Women Who Tested Positive for Pregnancy at a Medical Clinic is of Remote and Speculative Value to a Criminal Investigation into the Death of an Unidentified Newborn and Because of the Oppressive and Intrusive Nature of the Request for Profoundly Personal Information about Innocent Third-Persons, the Investigative Subpoena Should Be Quashed.

United States Constitution, Fourth Amendment

Iowa Constitution, Article I, Section 8

Iowa Code § 808.3

Iowa Rule of Criminal Procedure 2.5(6)

Iowa Rule of Civil Procedure 1.504(1)(a)(1)

Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984)

Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963)

Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931)

In re Adoption of S.J.D., 641 N.W.2d 794 (Iowa 2002)

In re Grand Jury, 194 F.R.D. 384 (D. Mass. 2000)

In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984)

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946)

Pattison Brothers Mississippi River Terminal, Inc., v. District Court for Clayton County, 630 N.W. 2d 782 (Iowa 2001)

People ex rel. Bernardi v. Lawrence & Ahlman, Inc., 434 N.E.2d 503 (Ill. App. 1982)

State v. Barger, 511 N.W.2d 632 (Iowa App. 1993)

State v. Breuer, 577 N .W.2d 41 (Iowa 1998)

State v. Cline, 617 N.W.2d 277 (Iowa 2000)

State v. Height, 117 Iowa 650, 91 N.W. 935 (Iowa 1902)

State v. Kelly, 353 N.W.2d 845 (Iowa 1984)

State v. Naujoks, 637 N.W.2d 101 (Iowa 2001)

State v. Nelson, 941 P.2d 441 (Mont. 1997)

State v. Olsen, 293 N.W.2d 216 (Iowa 1980)

State v. Poulin, 620 N.W.2d 287 (Iowa 2000)

State v. Predka, 555 N.W.2d 202 (Iowa 1996)

State v. Prior, 617 N.W.2d 260 (Iowa 2000)

State v. Swain, 412 N.W.2d 568 (Iowa 1987)

United States v. R. Enterprises, Inc., 498 U.S. 292 (1991)

II.Medical Records of Women Who Have Undergone Pregnancy Tests at a Medical Clinic are Protected by the Physician-Patient Privilege and by Constitutional and Statutory Rights of Privacy and May Not Be Obtained Pursuant to a Prosecutor’s Subpoena.

United States Constitution, Fourteenth Amendment

Iowa Code § 622.10

McMaster v. Iowa Board of Psychology Examiners, 509 N.W.2d 754 (Iowa 1993)

Newman v. Blom, 89 N.W.2d 349 (Iowa 1958)

Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986)

State v. Deases, 518 N.W.2d 784 (Iowa 1994)

State v. Sanders, 623 N.W.2d 858 (Iowa 2001)

Thornburgh v. American College of Obstetricians, 476 U.S. 747 (1986)

Thurman v. State, 861 S.W.2d 96 (Tex. App. 1993)

Whalen v. Roe, 429 U.S. 589 (1977)

III.Buena Vista County’s Subpoena for the Names of Women Who Associated With Planned Parenthood by Receiving Medical Services Violates Those Women’s Constitutional Right of Association as Protected by the First Amendment of the United States Constitution and by Article I, Section 7, of the Iowa Constitution.

United States Constitution, First Amendment

Iowa Constitution, Article I, Section 7

Bates v. City of Little Rock, 361 U.S. 516 (1960)

Buckley v. Valeo, 424 U.S. 1 (1976)

Local 1814, Int’l Longshoreman’s Ass’n, AFL-CIO v. Waterfront Commission, 512 F. Supp. 781 (S.D.N.Y.), aff’d, 667 F.2d 267 (2d Cir. 1981)

NAACP v. Alabama, 357 U.S. 449 (1958)

IV.If This Court Should Remand This Matter for Further Proceedings, the Middleton Center for Children’s Rights Requests That It Be Appointed as Guardian Ad Litem to Directly Represent the Interests of Minor Girls Whose Confidential Information May be Included in the Records Sought by the County Attorney From Planned Parenthood.

Iowa Rule of Civil Procedure 1.212

INTEREST OF AMICUS CURIAE,

JOAN AND LYLE MIDDLETON CENTER FOR CHILDREN’S RIGHTS,

Drake University Law School

The Joan and Lyle Middleton Center for Children’s Rights became a central part of Drake University Law School’s pioneering in-house clinical program in Fall 2001. The Middleton Children’s Center is the result of a $1 million gift from Joan and Lyle Middleton to Drake Law School’s Legal Clinic to establish a new program that focuses on the rights of children and families. The Iowa Court Improvement Project also provided a generous grant for the Children’s Center.

The Middleton Children’s Center has three components: legal services, interdisciplinary training, and policy-making.

Children’s Rights Clinic: The core of the Middleton Children’s Center is the Children’s Rights Clinic. Students under faculty supervision provide legal services for children and families in need of assistance, addressing a critical need for representation. The Middleton Children’s Rights Clinic takes an interdisciplinary, holistic approach to these cases, teaming the student lawyer with a social worker and a licensed teacher.

Interdisciplinary Training: The Middleton Children’s Center provides a broad spectrum of programs to educate attorneys, judges, educators, social workers, and others who work in the field of juvenile law. Programs will include legal and judicial practice, the latest scientific research in the field of juvenile law, and legal aspects of abuse and neglect cases for other service providers.

Policy-making: The Middleton Children’s Center will assist in development of the law relating to children and families. As part of a course in juvenile legislation, students will meet with the Center’s Advisory Board to consider legislative efforts and draft reform legislation. In addition, the Middleton Children’s Center acts as a resource center to collect and disseminate legal information relating to Iowa children and families in need of assistance. Current projects include preparing pamphlets about legal rights and community resources for homeless teenagers, at-risk teenagers still in school, or non-custodial parents.

Because the present matter involves an attempted invasion by a prosecutor upon the privacy rights of many, presumptively including female minors, who have engaged the medical services of Planned Parenthood, the mission of the Middleton Center in protecting children’s rights is directly implicated. Mary Middleton explained the reason behind establishing the center in her parents’ names: “This gift exemplifies our family’s commitment to children and families—fostering the security and growth of the young people who will become tomorrow’s leaders.” The prosecutor’s subpoena represents a threat to the security of girls whose profoundly personal information is at risk of revelation. And as future leaders of our state and country, our young people begin to learn early—from episodes such as these—about legal protection of privacy and their rights as citizens to be secure against unreasonable intrusions by law enforcement.

Based upon these interests of the Middleton Center, as well as upon the expertise of the Drake University law faculty who author this brief, we respectfully submit this amicus curiae brief in the hope that it will be of assistance to the Court in resolving this vitally important legal dispute.

STATEMENT OF THE CASE

Relying upon the Statement of the Case that will be provided by the plaintiff, Planned Parenthood, we provide here only a brief recitation of the facts and proceedings:

The Buena Vista County Attorney applied for and received a Prosecuting Attorney’s Subpoena involving a possible homicide investigation pursuant to Iowa Rule of Criminal Procedure 2.5(6). A modified Subpoena Duces Tecum issued on July 15, 2002 directs:

Planned Parenthood of Greater Iowa-Storm Lake Center shall respond to the modified Subpoena Duces Tecum by providing the names and addresses of all women who submitted themselves to a pregnancy test and tested positive for pregnancy during the period of time from August 15, 2001, to May 30, 2002, on or before August 17, 2002.

Upon receipt of these medical records, the county attorney will disclose the names to law enforcement personnel who will then contact each woman or girl and ask for further information concerning her pregnancy.

SUMMARY OF ARGUMENT

The District Court erred in denying Planned Parenthood’s motion to quash the Buena Vista County Attorney’s subpoena seeking confidential medical information about a large class of women and girls, because the subpoena sweepingly and unjustifiably invades zones of privacy protected by both privilege and constitutional right. A large class of citizens whose rights are poignantly at issue—especially any minor girls without legal capacity on whose behalf the Middleton Center at Drake University asks to speak here—have not had an opportunity to be heard directly in this matter. Because those innocent third-persons are the real parties in interest to this matter, the Court must fully consider the various interests and rights that have been or could be asserted on their behalf.

As a matter of Iowa law, we submit that a standard of probable cause generally should be required for issuance of a subpoena by a prosecutor. In any event, even if a more deferential standard ordinarily should apply to the routine investigative subpoena, the extraordinary and oppressive nature of this particular subpoena demands application of a heightened level of scrutiny. In this case, the prosecutor’s demand on penalty of contempt is so wide-ranging in scope that it effectively constitutes a general search warrant designed to ferret out profoundly personal information about a large class of citizens—all (or at least all but one) of whom have no possible connection to the matter being investigated.

Indeed, even if it were to be evaluated by a standard more deferential than probable cause, the subpoena in this case cannot survive. Viewed under ordinary standards, the subpoena at issue here is improper because the possibility that the information to be obtained will be of any value to the investigation is too remote and speculative to justify the oppression, annoyance, harassment, and intrusion upon the lives of the women or girls who are the subjects of the documents sought.

Moreover, the invasive nature of the prosecutor’s subpoena in this case is repugnant to privacy rights of the citizens of this state, as protected by the physician-patient privilege and the constitutional right of privacy. The protection of the medical privilege does not depend upon whether each stage of treatment involves a physician or whether the person obtaining the information is a licensed medical professional. Whether or not the tests were performed by physicians or nurses, they were performed for a medical purpose, under the supervision of a physician, and to enable medical professionals as needed to treat them in a skillful manner. Furthermore, to be effective, the privilege must protect against disclosure of medical records as well as preclude revelation of confidential information by testimony. No person seeking medical treatment reasonably expects that only the communication directly between the patient and the doctor is confidential, but that this privilege is lost as soon as the doctor reduces a diagnosis to writing and hands the chart to a records custodian.

In this case, in contrast with other decisions by this Court involving medical records sought for financial or other purposes, in which diagnosis and other identifying information was coded or redacted, the prosecutor’s subpoena here seeks direct access to information concerning a medical diagnosis. To allow law enforcement access to the contents of medical diagnoses, classified by patient name, whenever those medical records are remotely relevant to an ongoing criminal investigation would operate a wholesale destruction of the physician-patient privilege and severely undermine the constitutional right to informational privacy in our state.

This investigative subpoena also violates the constitutional right of these women and girls to associate with an organization that not only provides a medical service but also expresses a controversial political and social perspective. If their names are revealed to community leaders, and they are subjected to police investigation, their willingness to continued to associate with Planned Parenthood will be severely chilled.

In sum, we urge this Court to regard the substance and not merely the form of the law enforcement investigative tool that the Buena Vista County Attorney seeks to employ here. The sweeping dragnet sought by the prosecutor, subjecting potentially hundreds of innocent citizens to examination of their personal lives by officious intermeddlers, would constitute perhaps the largest and most egregious invasion into the private lives of citizens by law enforcement officers in the history of our state.

ARGUMENT

As discussed in subsequent sections of this brief, by issuing a subpoena to a Planned Parenthood medical clinic to obtain confidential pregnancy test information identifying a large group of women and girls, the Buena Vista County Attorney would trespass upon the privileged protection of medical records, the constitutional and other privacy interests of women seeking medical services, and the constitutional free speech and association rights of women affiliating themselves with an expressive organization. However, it may be unnecessary for this Court to reach those questions as this matter can be resolved on narrower grounds, because the subpoena issued by the county prosecutor is invalid as a matter of fundamental principles of limitations applying to prosecutorial investigative subpoenas, even when evaluated under a deferential standard.

Whether reviewed for sufficient probable cause under the constitutional standard for search and seizure, as we contend is the appropriate measure at least as applied to the extraordinary subpoena in this case, or under a more deferential standard for investigative subpoenas that requires a showing of a bona fide investigatory purpose, a demonstration of relevance, and a balancing of governmental need against the burdens upon the citizen, the county prosecutor’s subpoena in this case cannot be justified. In this case, the remote and speculative value of the information sought, especially when balanced against the intrusive nature of the request, establishes that the issuance of this subpoena was an abuse of law enforcement powers that should not be countenanced by this Court.