Florida 'Gag Law' on Physician Gun Queries Blocked for Good

July 03, 2012

July 3, 2012 — Florida cannot enforce a law that prohibits physicians from asking patients whether they own a gun because it infringes on their First Amendment right to free speech, a federal judge in Florida has ruled.

US District Court Judge Marcia Cooke in Miami issued a temporary injunction against the Firearm Owners' Privacy Act for that very reason in September 2011. Last week, Judge Cooke made the injunction permanent, and in a final judgment filed yesterday, she declared the Florida law unconstitutional.

Florida chapters of national medical societies such as the American Academy of Pediatrics (AAP), along with several individual physicians, sued the state in federal court to block what they called a "gag law." They argued that physicians should be free to ask patients, especially parents of young children, whether they own guns, and if so, to advise them about safe storage. The ultimate goal is to prevent shootings that occur, for example, when a child finds a loaded pistol in a desk drawer.

The National Rifle Association (NRA), which had lobbied for the law's passage, unsuccessfully tried to intervene as a party in the federal case. It saw the Second Amendment and the right to bear arms at stake, as opposed to the First Amendment and free speech.

Louis St Petery, MD, a pediatric cardiologist in Tallahassee, Florida, and executive vice president of the state's AAP chapter, hailed Judge Cooke's latest ruling as a victory for preventive care.

"We were not out after gun owners' rights," Dr. St Petery told Medscape Medical News. "We were out to protect children. Pediatricians need to discuss [gun safety] issues openly to prevent children from getting killed."

Dr. St Petery said the legal battle between organized medicine and gun rights advocates took on a different light for him after the fatal shooting of an unarmed teenager named Trayvon Martin on February 26 in Sanford, Florida, by a man who claimed that he acted in self-defense. That man, George Zimmerman, was later charged with second-degree murder. It remains to be seen whether Zimmerman will be exonerated under a controversial "Stand Your Ground" law in Florida that the NRA supports.

"The Trayvon Martin case is very much different from ours, but it made me think that the NRA is pushing Second Amendment rights into every arena," said Dr. St Petery. "Guns are very prevalent in our society."

NRA Fears Gun Ownership Data Going Into EHRs

Enacted last year, the Firearm Owners' Privacy Act prohibits physicians from asking patients about gun ownership, recording the answers in their charts, and unnecessarily harassing or discriminating against gun owners. Physicians who violate these provisions risk disciplinary action by the state health department.

The law makes an exception for asking about gun ownership and recording the answers if a clinician in good faith believes the information is relevant to the medical care or safety of the patient or someone else. However, physicians such as Dr. St Petery complained that the law did not define relevance to medical care and safety, much less harassment, leaving them afraid to venture any questions lest they violate the law. Judge Cooke agreed, saying that the law's vagueness contributed to its chilling effect on free speech.

Judge Cooke also said that the law had nothing to do with protecting the rights of gun owners, a point contested by Marion Hammer, a former NRA president and now a board member representing the group in Florida.

"The issue is the privacy rights of citizens who exercise the right to keep and bear arms," Hammer told Medscape Medical News. Questions about gun ownership pose a threat, she said, "because the answers are being put into medical records and computerized records, which can be accessed by outside entities."

Hammer also wonders why physicians ask questions and offer counsel about gun ownership in the first place.

"This has nothing to do with medical treatment and medical care," said Hammer. "If it's about prevention, they can pass brochures to everybody.

"Would you expect a pediatrician to ask if you own a Rolex watch, or if you have car insurance, or if you engage the hand brake on your car?

"They are singling out gun owners."

Hammer said that she expects the state to appeal the court's decision.

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