Judge Blocks Florida 'Gag Law' on Physicians’ Gun Questions

September 14, 2011

September 14, 2011 — A federal judge in Miami, Florida, today issued a preliminary injunction against a Florida law that prohibits physicians from asking patients if they own a gun, saying that it infringes on their constitutional right to free speech.

The Florida law, enacted earlier this year, bans inquiries regarding firearms ownership, recording the answers in a patient's chart, "unnecessarily harassing" gun owners, or turning away patients who refuse to answer gun questions. There is an exception for questions about firearms if a clinician believes "that this information is relevant to the patient's medical care or safety, or the safety of others." However, critics say physicians are afraid of claiming this exception because the criteria for relevance are not spelled out.

Medical societies in Florida that challenged the law in federal court counter that they are obliged to broach the subject of guns so they can counsel patients about safe-storage practices and prevent accidental shootings, especially of children. The American Medical Association had supported the Florida physicians in their lawsuit.

In her ruling today, which blocks enforcement of the Florida statute, US District Court Judge Marcia Cooke wrote that the case "concerns one of our Constitution's most precious rights — the freedom of speech." Cooke stated that Florida physicians were "self-censoring themselves" out of fear that they would be disciplined for supposedly violating the law.

"Plaintiffs’ injury," she wrote, "is their chilled free speech."

The National Rifle Association (NRA) had lobbied on behalf of the law, which it deems a defense of the Second Amendment right to bear arms. It views an antigun agenda behind firearm questions from physicians and claims some have harassed gun owners and dropped at least one as a patient.

Cooke, however, ruled that the litigation before her did not involve the Second Amendment because physician questions and statements about gun ownership do not interfere with anyone owning firearms. She also noted that the state legislature had relied heavily on anecdotal information about gun conversations between physicians and patients as opposed to "studies, research, and statistics."

Medscape Medical News contacted the NRA and asked to speak to Marion Hammer, the group's lobbyist in Florida, about the judge's ruling. An NRA spokesperson said Hammer would issue a comment once she had finished studying the decision.

The Florida medical societies and individual physicians who had sued the state in federal court over the law applauded Cooke's ruling.

"Pediatricians simply want to do what they do best: Protect children," said Lisa Cosgrove, MD, president of the Florida chapter of the American Academy of Pediatrics, in a press release. "We hope that now we will be able to get back to working with parents to maintain their guns, pools and poisons to keep kids safe."

"Reversing this law is essential in order to preserve the sanctity of the doctor-patient relationship by keeping the government out of the exam room," added Stuart Himmelstein, MD, a governor of the Florida chapter of the American College of Physicians.

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