By Daniel Gain | For Reason to Press
Introduction: The Crumbling Foundation
The Constitution of the United States was designed to be a steadfast foundation for liberty, equality, and justice. Yet, its selective application and politicized enforcement are contributing to a slow erosion of its integrity. Inconsistencies in how fundamental rights are recognized and upheld are leading to a dangerous trend: the gradual loss of faith in the American legal system. One such glaring inconsistency lies in the treatment of privacy rights within the doctor-patient relationship compared to those between a client and their legal counsel.
Through this detailed analysis, I argue that the right to confidentiality in medical care is not only logically and ethically on par with the confidentiality afforded to legal counsel, but it is also implicitly guaranteed by the very constitutional principles that underpin our republic. Ignoring this right threatens not only individual liberty but the constitutional contract that binds the nation together.
Section I: The Constitutional Basis of Privacy
The concept of privacy, while not explicitly written into the Constitution, has been affirmed through decades of judicial interpretation. In landmark decisions like Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, the Supreme Court recognized that the Constitution protects a "zone of privacy" derived from the First, Fourth, Fifth, and Fourteenth Amendments.
The Fourth Amendment explicitly guards against unreasonable searches and seizures, ensuring individuals are "secure in their persons, houses, papers, and effects." Medical records, being some of the most intimate and personal data a person can possess, fall squarely within this protected sphere. Likewise, the Fourteenth Amendment guarantees that no state shall deprive any person of life, liberty, or property without due process of law. Together, these provisions construct a constitutional scaffold supporting personal autonomy and privacy.
However, while this zone of privacy has been expanded in some contexts, such as sexual autonomy and familial decisions, it has not been fully extended to protect the doctor-patient relationship—at least not in the way it has been for the attorney-client relationship. This inconsistency is neither trivial nor benign. It has real-world consequences.
Section II: The Asymmetry Between Legal and Medical Confidentiality
Attorney-client privilege is sacrosanct in American law. Rooted in the Sixth Amendment’s guarantee of the right to counsel, the privilege exists to ensure clients can communicate freely with their lawyers. Without this privilege, the adversarial legal system would collapse, as individuals could not mount a meaningful defense.
Yet no such constitutional privilege exists for doctor-patient confidentiality, despite its equally essential role in preserving life and health. While statutes like HIPAA provide statutory protections, they are riddled with exceptions, especially where public safety or law enforcement are concerned. For example, mandatory gunshot wound reporting laws in many states compel healthcare providers to disclose a patient’s treatment to police—regardless of consent.
If you walk into your attorney’s office with a bullet wound and confess to shooting someone, your lawyer is bound by law to protect that communication. If you walk into an emergency room with the same wound, your doctor is often required by state law to report it to law enforcement. The message is clear: the state considers your liberty worth protecting, but not your life.
Section III: The Flawed Logic of Public Safety Exceptions
Proponents of mandatory medical disclosures argue that public safety justifies such intrusions. They claim the government has a compelling interest in addressing violent crime and maintaining order. But this rationale falls apart under scrutiny.
If fear of criminal exposure prevents individuals from seeking urgent care, the state is not preventing harm—it is enabling it. This chilling effect can lead to untreated injuries, public health risks, and even death. In prioritizing surveillance over survival, the state undermines both health and justice.
Moreover, this creates a dangerous precedent: that constitutional rights can be suspended for convenience. If life and liberty are inalienable, as the Declaration of Independence declares, then the right to survive an injury without state intrusion is as fundamental as the right to mount a defense in court.
Section IV: Substantive Due Process and Equal Protection
The doctrine of substantive due process protects fundamental rights from government interference, even where procedures are followed. It has been used to protect parenting, marriage, sexual intimacy, and bodily autonomy. Why not life-saving medical care?
Equal protection demands that similarly situated individuals be treated alike. Yet here we see a disparity: individuals in need of legal advice are afforded more protection than those in need of medical intervention. This disparity is arbitrary, dangerous, and constitutionally suspect.
Section V: The Political Cowardice of Inconsistency
The refusal to resolve these contradictions is not rooted in constitutional necessity but in political expediency. Courts and legislatures are often unwilling to extend privacy protections where it might disrupt law enforcement practices or public policy norms. This is not a legal limitation but a political one.
We’ve seen the same with the Second Amendment. Despite its clear language, courts have long upheld gun control laws that, under any serious textual scrutiny, appear to violate the right to keep and bear arms. Recent rulings like Bruen are beginning to correct this, but the resistance is strong—not because the laws are constitutional, but because the political consequences of enforcing the Constitution are feared.
The same is true with medical privacy. Courts don’t strike down gunshot reporting laws not because they pass constitutional muster, but because they’re afraid of the political fallout. That’s not law. That’s institutional cowardice.
Conclusion: A Call for Constitutional Consistency
A republic cannot endure if it selectively enforces its founding document. A right not enforced is a right denied. If life is the most fundamental right, then protecting access to medical care without fear of government exposure must be a constitutional imperative.
Just as attorney-client privilege protects liberty, doctor-patient confidentiality must protect life. Anything less is a betrayal of our constitutional promises.
It’s time we demand consistency. The Constitution must apply equally, fully, and without regard to political convenience. Only then can the United States preserve its legitimacy and restore the faith of its people.