A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework.
But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order.
June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases.
Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety.
This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.
Dustin B. Benham,
Secrecy and Transparency in Substantive Due Process Litigation,
SMU L. Rev.