The clock is ticking on legislation that would stop the government from accessing your medical data. If Congress does not pass the Medical Privacy Protection Resolution, House Joint Resolution 38, to repeal the medical privacy regulation by Friday, June 15, then you may lose your medical privacy.

Health and Human Services (HHS) Secretary Tommy Thompson recently announced that he would implement the patient privacy rules of the Clinton administration. But contrary to what has been reported, these rules actually compromise the privacy of patients.

While many believe that patients are being given their first federal right to their health records, the regulations fail to create such a right. Instead, they require doctors to share medical records with the federal government, overriding patient consent, in order to “monitor” privacy.

The government, rather than the patient, will dictate which third parties may have access to individual medical files. This constitutes a breach of privacy rather than a protection, and raises many questions.

Should individuals or government determine the boundaries of a doctor-patient relationship? Or, should the government require unfettered access to individuals’ medical files?

The new regulations comply with the Health Insurance Portability and Accountability Act (HIPAA) of 1996, known as the Kassebaum-Kennedy bill. HIPAA’s provisions for “administrative simplification” will assign every American a “unique health identifier” to track individual records electronically within a centralized government database. The Orwellian regulations would overrule individual authorization and disclose health information for government agents, law enforcement officials, medical students, and researchers.

However, the difference between the government and private collection of medical records is that the government is using force to obtain the information. In the private sector, individuals have the opportunity to contract with their doctors and health-care providers preventing release of their medical information. The patient privacy regulations would compel doctors to share their records with the government, overruling individual choices and preferences.

Communitarian critics of absolute privacy, such as Amitai Etzioni, believe that policy should balance individual privacy with the common good. First Amendment defenders warn that the privacy regulations sacrifice freedom of speech and the free flow of information. These two camps demonstrate that privacy preferences are subjective. While some individuals favor more privacy, others favor less. However, the new rules are one-size-fits-all regulations that prevent individuals from determining their own level of privacy.

According to a Gallup survey for the Institute of Health Freedom, the majority of Americans does not want the government, or any third party, to have access to their medical records. Certainly, most Americans don’t want a government medical database. But what Americans want isn’t as important as the Fourth Amendment protection of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Constitution necessitates a warrant and probable cause, supported by oath. The mandatory disclosure of medical information to the government by the patient privacy regulations clearly violates the Fourth Amendment, in addition to the moral obligations of the doctor-patient relationship.

Currently, if individuals contract for privacy and their files are accessed without their consent, they have the right to sue. But under the new rules, if patient contracts are breached, individuals are not allowed to seek legal recourse.

Fortunately, there are alternatives to the medical privacy regulations. Consumers could choose the level of privacy they want through private contracts. If government would exercise its true role by enforcing privacy contracts, then individuals could protect their privacy without restricting the free flow of information. Congress should also repeal the unique health identifier provision of the HIPAA.

Only private contracts will truly give American citizens the privacy and peace of mind they want, and which the Constitution guarantees. The Bush administration should overturn the decision to implement the dangerous privacy regulations, while the public and lawmakers should be supporting efforts that repeal the medical privacy rule, such as the Joint House Resolution 38, the Medical Privacy Protection Resolution.