Phillip Brown
Information Privacy Law
Professor Rubenstein
February 22, 2017
Presidential Candidates, Their Health and the Law
There is no requirement that Presidential hopefuls disclose their health records or any health information to the public. Interest in the health of candidates, however, is a given today. In the recent Presidential election, public debate over candidate health took center stage repeatedly. Secretary Clinton, for example, disclosed that she had been diagnosed with and treated for pneumonia after becoming dehydrated and leaving a September 11th memorial ceremony early.
President Trump, in a more comical instance of public health ‘disclosure’, had released a statement from his longtime physician rife with hyperbole and offering no real assessment of his health status.
Despite widespread believe that a candidate’s health is an important factor in their ability to lead (a 2004 Gallup poll found that 96% of Americans consider a President’s health very or somewhat important to their ability to be a good President), there appears to be little protection for those who would disclose a candidate’s health information or who would induce such a disclosure without the candidate’s authorization.
The First Amendment may well protect the ‘innocent’ publishing of health records obtained from an anonymous source–as Parth Baxi noted on this blog several weeks ago in the context of the New York Times’ unauthorized publishing of information gleaned from President Trump’s tax documents, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Bartnicki v. Vopper, 532 U.S. 514 (2001).
Of course, whether the public’s concern should be taken seriously would seemingly have an impact, especially in the province of health information. While a candidate’s struggle with certain disorders (such as dementia, Alzheimer’s, etc.) are unquestionably of legitimate public concern, it is difficult to imagine what significance a candidate’s procedure to obtain hair plugs, for example, would have on their ability to perform the duties of their office.
Regardless of the public interest served by unauthorized disclosures of a candidate’s health, in addition to any violation of HIPAA by a healthcare provider or their business associates for improper disclosure, the breach of contract tort would almost certainly impose liability on any physician or similar healthcare provider who had entered an implied contract of confidentiality with the candidate in question, as well as any who would induce violations of that confidence through third party liability.
As was seen with the unauthorized disclosure of then-candidate Trump’s tax documents, there is a very real chance a candidate’s private information that has perceived public importance in an upcoming election will not remain private. This raises the question not only of how our current laws will treat healthcare-related ‘whistleblowers’, but how our laws should treat the persons responsible for such intrusions into a candidate’s privacy.
Sources:
http://time.com/4472265/clinton-trump-health-reports-history/
http://www.latimes.com/nation/la-na-presidential-health-disclosure-20160912-snap-story.html
2004 Gallup Poll:
http://www.gallup.com/poll/13558/fit-office-presidential-health-public-matter.aspx