The ACLU of Oregon, working in partnership with National ACLU and Burrows Appellate Law, filed an amicus brief with the Oregon Supreme Court in State of Oregon v. Brandon Tyler Kern.
In State v. Kern, the trial court denied the defendant's motion to suppress medical evidence from a healthcare provider that an Oregon law mandated be given to the police without a warrant following a motor vehicle accident. The trial court concluded that the hospital’s disclosure of Mr. Kern’s medical information was not unlawful under the search and seizure guarantee of the Oregon Constitution and that Kern did not have a protected privacy interest in his medical information. The Court of Appeals affirmed the trial court’s convictions and sentence without opinion, so Kern sought review in the Oregon Supreme Court.
Our amicus argues that people in Oregon do have a constitutionally-protected privacy interest in their health information and records. This is consistent with the way the public understands their privacy, is supported by medical ethics, and the myriad health privacy laws at the state and federal level. Moreover, Oregon’s constitutional right to healthcare implicates privacy as well.
The amicus goes on to argue that the government-mandated disclosure of medical records to law enforcement constitutes a search, and therefore police need to get a warrant if they want to access medical records in Oregon. The warrantless search in this case, therefore, was a violation of the defendant’s Article I, section 9 right to be free from unreasonable searches under the Oregon Constitution. The Oregon Supreme Court should hold that the trial court erred when it refused to suppress the evidence of Mr. Kern’s healthcare information that was introduced against him at trial.
Law enforcement officers or other government actors attempting to access private medical information without the oversight of courts is a serious concern — one that could have far reaching impacts on anyone seeking medical care — but especially vulnerable community members who are targeted by the Trump administration, such as trans people seeking gender affirming care or pregnant people in search of an abortion.
Get a warrant.
