Complete Federal Preemption of State Law
Richards, Edward P.
RichardsE at UMKC.EDU
Mon Aug 27 13:03:25 PDT 2001
As part of its regulations of human subjects research, the federal
government can provide a certificate of confidentiality that prevents
any access to the research information (from the NIH WWW site):
"The Secretary [of the Department of Health and Human Services] may
authorize persons engaged in biomedical, behavioral, clinical, or other
research (including research on mental health, and on the use and effect
of alcohol and other psychoactive drugs) to protect the privacy of
individuals who are the subject of such research by withholding from all
persons not connected with the conduct of such research the names or
other identifying characteristics of such individuals. Persons so
authorized to protect the privacy of such individuals may not be
compelled in any Federal, State, or local civil, criminal,
administrative, legislative, or other proceedings to identify such
individuals" (Public Health Service Act 301(d), 42 U.S.C. §241(d), as
amended by Public Law No. 100-607, Section 163 (November 4, 1988)).
I am not convinced that the Congress can so fully preempt all state law,
including public health and safety police power rights such as requiring
communicable diseases or child abuse to be reported, or state criminal
law access to information.
Any thoughts on this?
Edward P. Richards
Executive Director - Center for Public Health Law
The Ruby M. Hulen/UMKC Professor of Law
University of Missouri Kansas City
(816)235-2370 Fax (816)235-5276
richardse at umkc.edu
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