The brief, also filed by the national ACLU and four other ACLU affiliates, is part of the federal case U.S. Department of Justice v. Jonas, and explains that not only are these types of searches unconstitutional, but they can also have adverse consequences and deter patients from receiving needed medical care.

“The State of New Hampshire is sticking up for the privacy rights of all Granite Staters, and we are proud to stand with them,” said Henry Klementowicz, staff attorney at ACLU-NH. The federal Drug Enforcement Administration (DEA) “cannot ignore state law and request these sensitive records with an administrative subpoena instead of a signed warrant. That’s not the New Hampshire way, and we are proud to stand with the New Hampshire Department of Justice to protect patient rights.”

New Hampshire, along with 48 other states, the District of Columbia and Puerto Rico, has established a statewide Prescription Drug Monitoring Program (PDMP), a system allowing physicians and pharmacists to look at a patient’s past prescriptions for medications that have addictive potential. State law prevents law enforcement agents from accessing the database unless they have a search warrant signed by a judge.

“The DEA’s most concerning argument in this case is that medical patients have no reasonable expectation of privacy in their prescription records. The medical community rejects this view,” says James Potter, executive vice president of the New Hampshire Medical Society. “Not only is this argument legally incorrect, but it undermines why medical confidentiality is so important. Protecting patients’ medical information is essential to ensuring that patients feel comfortable to seek medical care from health care providers. Patients who trust their health systems to protect their data receive better outcomes. Maintaining patient privacy is also essential to protecting our patients’ dignity.”

The dispute involves a subpoena New Hampshire received last June from the DEA seeking two years’ worth of a patient’s PDMP records. The state Attorney General’s office refused to comply, claiming that doing so would violate state law and infringe on privacy rights. The DEA sued in court, with the state’s Attorney General arguing the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution.

“Our medical records can reveal our most sensitive and private details, which is precisely the kind of information the Fourth Amendment is intended to protect,” said Nathan Freed Wessler, staff attorney with the national ACLU’s Project on Speech, Privacy, and Technology. “Requiring a search warrant for law-enforcement access to our private health information isn’t just good Fourth Amendment law; it’s good policy. Robust protections against unjustified police searches of prescription-monitoring databases help ensure that the opioid addiction crisis is primarily addressed using public health tools, not a broken criminal justice system.”