N.D.Ind.: Abortion provider’s suit against inspection of records without court order or subpoena not ripe

Local ordinance mandated government review of some medical records upon a “credible complaint” about itinerant doctors providing abortion services without backup medical care. The plaintiff doctor sued over application of the ordinance to him. The court held that the Fourth Amendment claim was not ripe for decision because there had been no effort to review his medical records. The ordinance may very well create a constitutional violation, but the case is not ripe to decide it. Ft. Wayne Women’s Health v. Bd. of Comm’rs, Allen County, Ind., 2010 U.S. Dist. LEXIS 82128 (N.D. Ind. August 11, 2010):

Dr. Klopfer insists his Fourth Amendment challenge is an as-applied challenge. The Board of Commissioners argues that the challenge isn’t ripe because no search has occurred yet, so Dr. Klopfer’s challenge must be considered a facial Fourth Amendment challenge to the ordinance, which courts disfavor. The distinction makes no difference here. Without a subpoena, unconsented searches of patient records would be unconstitutional. Because the case law is so developed on this question, no government official would be entitled to qualified immunity in a § 1983 suit if he or she conducted such an unconsented search. See Doe v. Heck, 327 F.3d at 517 (“At this juncture, however, we now make it clear that it is patently unconstitutional for government officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances.”); see also Camara v. Municipal Court, 387 U.S. at 528-529 (stating that search of private property without proper consent is unreasonable unless authorized by valid search warrant). Though the ordinance might be read as providing an instruction to conduct an unconstitutional search, it is appropriate to presume that government officials in Allen County will apply the ordinance in a constitutional manner and obtain either consent or a subpoena before undertaking a search of patient notification forms. See, e.g., United States v. Ramsey, 503 F.2d 524, 530-531 (7th Cir. 1974) (noting that normal application of statute wouldn’t ordinarily lead to Fourth Amendment violations and that unconstitutional applications of the statute were inhibited by other protections). In the absence of an actual unconstitutional search, Dr. Klopfer is unlikely to succeed on his Fourth Amendment claim.