People have long perceived a connection between mental and even physical illness and physical anguish. Yet, modern culture tends to view both types of illness from an increasingly medical perspective, seeking a genetic or environmental explanation. In most cases, this “medical model” is probably the best approach, even if it is imperfect. First, the purely medical explanation may be accurate. Second, even if it is not accurate, treating the symptoms of a disease with a spiritual source is probably easier than treating the source itself. Ultimately, however, we must take note that disease is often not the result of genetics or “environment” in the scientific sense. Otherwise, we will lose our ability to adapt psychologically to new ways of life. Often, it is the individual suffering psychological anguish who accurately perceives the crises that will beset the culture as a whole a generation or more later. If the culture is to prepare for these crises, we must not categorically dismiss the psychological anguish of the individual as mere genetic or environmental defect. That person may be doing us a favor.

One powerful example of the widespread acceptance of the medical model is the emergence of the Americans with Disabilities Act (“ADA”) as a means of limiting questions by public licensing authorities about mental illness. Before Congress enacted the ADA, authorities routinely asked applicants for licenses to disclose extensive information about mental illness, including such courses of treatment as counseling and hospitalization. Since then, courts, advocates, and public officials have construed the ADA to prohibit or limit many of these questions. Although authorities continue to ask intrusive questions in many jurisdictions, the ADA has had an enormous salutary impact for people who have sought and obtained psychological treatment. Given this progress, advocates might understandably feel justified in challenging only those authorities who continue to ask intrusive questions and in not bothering to ask whether the end of excluding such questions from applications justifies the means presented by the ADA. But if the medical model upon which the ADA is based is flawed, as I suggest it might be, we should ask precisely that question. Moreover, if the medical model is a poor or incomplete justification for limiting these kinds of questions, we might also profitably ask whether there are other justifications available for such limitations. In fact, such justifications are at least implicit in the federal Constitution’s guarantees of due process, free exercise of religion, and freedom from unreasonable search and seizure. The Supreme Court has held that the Due Process Clauses protect people from arbitrary intrusion into certain intensely private aspects of their lives. Arguably, conversations between a patient and a therapist designed to alleviate mental illness should qualify for the protection of these clauses. The First Amendment explicitly prohibits interference with the free exercise of religion. To the extent therapy replicates or facilitates traditional confessional relationships, it should qualify for some level of protection under this clause. Finally, the Fourth Amendment prohibits “unreasonable” searches and seizures, providing further support for the argument that intrusive questions violate the Constitution.

Admittedly, it is unrealistic to think that much litigation will occur in this area in the short term, given the wide impact of the ADA, and given the Supreme Court’s current reluctance to recognize new constitutional rights. Nevertheless, and if only for hortatory reasons, we should criticize the ADA for its questionable premises and note that the Constitution might better protect the relationship between therapist and patient from unnecessary official scrutiny. Moreover, if licensing officials voluntarily limit questions about treatment for mental illness in light of constitutional principles, a precedent might be set for the long term. If, as jurists and commentators suggest, the Constitution comes to protect those rights widely valued in culture, habitual non-judicial respect for the privacy of the therapeutic process will ultimately provide raw material for a judicial extension of constitutional protection to this process.

In Part II of this Article, I will describe the dilemma licensing authorities pose for applicants by asking intrusive questions about treatment for mental illness. In Part III, I will set forth the relevant provisions of the ADA and discuss some of the more prominent cases arising under the Act. In Part IV, I will discuss some weaknesses of the medical model upon which Congress has based the ADA. Specifically, I will argue that the medical model potentially distorts experiences that may have religious importance and encourages trivialization of individual and religious growth. In Part V, I will discuss alternative, constitutional bases for protecting conversations between patients and therapists. Finally, in Part VI, I will argue that, in light of judicial reluctance to recognize new areas of constitutional protection, non-judicial members of the government should voluntarily treat the interests I identify as having a constitutional dimension.

Document Type


Publication Date

Winter 1999

Notes/Citation Information

Missouri Law Review, Vol. 64, No. 1 (Winter 1999), pp. 77-122