Oh my God, not again…a defense of Cerebral!?!
This column makes the argument that we should rush to the defense of Cerebral, in order to preserve the reproductive rights of women. In order to do that, I'm going to support the following decision, also, I let chat GPT delete some of what I wrote to make it more concise, and then I had to edit it all over again. It’s a terrible writer!
DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION…
I know, right?
Cerebral has been sued, and a bunch of of other Telehealth operators are theoretically on the hook, for breaches of privacy1.
I believe the best response to this, from a legal perspective, is to challenge the ability of anyone to file a lawsuit for privacy in federal court at all.
There is no federal right to privacy. Thus, it is not something that is appropriately or even possibly adjudicated in a federal court.
The federal right to privacy was created by the decision of the Supreme Court in a case we're all familiar with, and many of us mourn the passing of, Roe v. Wade:
The Case in Depth: Roe v. Wade, 410 U.S. 113 (1973)
Holding: 7–2 decision invalidating a Texas law that prohibited abortions except when necessary to save the life of the mother. The Supreme Court recognized that the right to decide whether to continue a pregnancy comes within the constitutional protection that the liberty clause in the 14th Amendment affords to privacy.
This decision enabled federal legislation on privacy, paving the way for legalizing abortion by leveraging privacy rights. It is about the federal government's jurisdiction, intertwined with the Bill of Rights:
Article the eleventh... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article the twelfth... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Not all matters are constitutional or federal. Rights reserved to people or states fall outside federal jurisdiction. The Supreme Court, using the 14th amendment, established a right to privacy and healthcare protections, which were later dismantled in Dobbs, with the decision penned by Not Quite the Wordsmith Antonin Scalia Was Justice Alito:
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy…and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” ……The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. …
The court's regulation of abortion is based on not liking it. Justice Alito has a preference for discussing natural rights and historical precedents. The quality of reasoning and writing in these discussions is questionable.
As to precedent, citing a broad array of cases, the Court found support for a constitutional “right of personal privacy.” … Roe conflated the right to shield information from dis- closure and the right to make and implement important personal decisions without governmental interference. … When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with,” among other things, “the relative weights of the respective interests involved” and “the demands of the profound problems of the present day.”
One of the ways in which the Alito decision is prescient is that it takes into account the reckless disregard for a precedent … in order to justify its own overturn of precedent:
Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. …(KAVANAUGH, J., concurring in part).2
Samuel Alito is asserting is that he's got every right to overturn Row because Casey was a bad decision based on a Roe.3
Bless his heart, he goes on to make my point4, which is that overturning Roe isn't going be a huge problem because property rights are still cool:
5) Reliance interests. Overruling Roe and Casey will not upend concrete reliance interests like those that develop in “cases involving property and contract rights.”
Here, I very much agree with Justice Alito:
The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause.
My kind of casual armchair Legal scholarship is not for the citizenry though, and we are warned:
The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Here is where being overconfident and glib as a jurist can bite one— while overturning precedent, Alito protests (and allow me to paraphrase):
“my decision is so well reasoned about the specific thing that it shouldn't apply to anything else, because I respect precedent so, so much”
It is the legal-profession equivalent of stabbing someone a switch blade, then handing it over with a stern, “no cutbacks.”
Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” … That applies even when the laws at issue concern matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”
Alito asserts that the court totally respects precedent, except when he doesn’t. Because the court think there's some fundamental issues that are super important. Like Super Duper important.
Healthcare Law is super special. Because Justice Alito. I am agreeing. I'm not disagreeing. I'm making fun of him, but I'm not disagreeing. It serves my purposes, just like his intransigence about anything having to do with abortion served his.
If abortion is to be strictly regulated, all obstacles hindering its enforcement must be removed. This requires transparency and surveillance over health data, potentially infringing on the federal right to privacy. The enforcement of an abortion ban would demand knowledge of private medical information, contrasting the principles of privacy rights.
This argument implies that to ban abortion at the state level, the federal right to privacy cannot exist; states need to have access to individuals' health information. It's a controversial argument with impactful consequences, such as undermining federal privacy enforcement, like the Health Insurance Portability and Accountability Act (HIPAA).
Without a federal right to privacy, privacy regulation falls to…
Article the twelfth... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So when justice Alito, writing for the majority found that:
Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.
States need to use HIPAA’s privacy backdoor to enforce anti-abortion laws, as a strong federal privacy right no longer protect doctors and patients from revealing information necessary for a law enforcement purposes.
HIPAA specifically talks about state law:
Preemption. In general, State laws that are contrary to the HIPAA regulations are preempted by the federal requirements, which means that the federal requirements will apply. "Contrary" means that it would be impossible for a covered entity to comply with both the State and federal requirements, or that the provision of State law is an obstacle to accomplishing the full purposes and objectives of the Administrative Simplification provisions of HIPAA.
Thus, states can preempt federal law in the case of protected health information for abortion, then they can do it. That's the law. I didn't get to say so. The Supreme Court did.
And because the Supreme Court has decided that abortion beats other concerns, like some twisted game of rock paper scissors, abortion beats privacy just like scissors be paper.
Given the potential for states to access protected health information at their discretion, which is in entirely keeping with HIPAA, by the way, we might want to challenge it, given that requires a federal right to privacy to exist as a law.
Using Justice Alito's logic in Dobbs, healthcare-related privacy should not be federally regulated but handled at the state level due to its unique status. This implies eliminating HIPAA, and without a federal right to privacy, class action lawsuits on privacy matters in federal court would be inapplicable.
Cerebral, your lawyers can thank me later. The same for every other Telehealth company.
This privacy invasion issue goes beyond Cerebral's cheeky Facebook pixel tracker. It's a giant monster jeopardizing the safety of those needing certain medical care—especially women seeking abortions. Not cool, HIPAA, with your sneaky backdoor.
I despise that backdoor. Time to brick it up. Overturn HIPAA and sure, Cerebral escapes the federal court headache, but now has to face the music in state courts. Meanwhile, we seal that privacy backdoor tight.
Trash HIPAA. Every state can craft its own privacy laws— except, practically, California will dictate the standards across all healthcare products given the size of the market. This is already standard operating procedure for the state of California when it comes to fuel efficiency standards, and I would be shocked if they didn't take a swing at Texas in this manner.
With no federal law blocking it, we can build an encryption fortress around our healthcare privacy. We can use zero-knowledge proofs, and use robust cryptography. The only reason Big Brother is peeking right now is because HIPAA has rolled out the welcome mat.
So, I say scrap HIPAA. Yes, it might be Cerebral's 'get out of jail free' card, but hey, you win some, you lose some. More importantly, it opens the gates for privacy knights to guard our health data like gold. Encryptable, valuable gold. Stealing is a crime, and let's face it, we regulate theft way better than privacy. No theft backdoors—nobody can "borrow" your stuff. We secure things, don't we? We don't leave property protection to ancient fax machines or wiretapped phone lines.
By smashing HIPAA to bits, via Cerebral's court case, we can lock down our personal data like a vault. And that, my friends, is a future we can all feel good about.
—Muir, O., delivered the opinion of the Court of Unintended Consequences.
I have established my “Trolling for Compliance” bona fides in every imaginable way. I am not a cheerleader for violations of privacy.
However, there are some violations of privacy that predatory, non-compliant, profiteering, and gross.
There are other violations of privacy that are statutory, not on purpose, and essentially due to lax policies and not gross malfeasance. The point of a compliance department is not to have zero breaches of policy around privacy. It's to react like adults when there are breaches of privacy, and work to prevent those breeches going forward.
I'm also on the record about HIPAA being a terrible law, for a variety of reasons, but mostly because it doesn't insufficient job of protecting privacy.
Honestly, privacy is over. Privacy is a terrible legal framework with which to protect healthcare information. Mostly becauseMostly because people don't really care about it. And the people who do care about reaching your privacy, which are usually powerful actors in governments that can do really awful things to you globally? They don't care about your privacy at all. Authoritarian regimes will stab you in the lungs just because they can. Your privacy can go stick itself in an easy bake oven and sell itself as a cookie for all authoritarian governments care.
Privacy is a bad legal framework… property? Better. It's easier to agree on property having value, and it's easier to follow the chain of value, and it's easier to put a dollar value on the risk involved, and change that dollar value in ways that are meaningful to people who it otherwise steal your stuff.
Privacy: don't you dare!
Property: it's gonna cost you.
Now, my novel theory of which companies like Cerebral can use to defend themselves in federal court… and then the reason I'm making this argument in the first place, which is actually in favor of more stringent protections for peoples private information, which is not the regime we live under at this time.
If you don't believe me, ask BetterHelp.
Cerebral has been sued in a class action lawsuit in federal court in California. I'm not a lawyer. I don't even play one on TV. I do some testimony in expert witness gigs. But I think this holds up.
And you know you have a bad appeal to authority day when the justice you are citing is Kavanaugh, but whatever.
which was a bad decision loop. This is just what's happening because he knows he has the support of the other justices to do this.
for my purposes in this article