Florida Appeals Defeat of Gag Law on Physician Gun Queries

August 01, 2012

August 1, 2012 — As expected, the state of Florida is turning to a federal appeals court to resurrect a law that prohibits physicians from asking patients whether they own a gun.

The state is seeking to undo a permanent injunction that US District Court Judge Marcia Cooke in Miami issued against the law in June. Cooke said the law, called the Firearm Owner's Privacy Act, violated the free speech rights of physicians.

Individual Florida physicians and state chapters of the American Academy of Pediatrics, the American Academy of Family Physicians, and the American College of Physicians had challenged the law in court, saying that physicians need to ask young parents about gun ownership for the sake of advising them about safe storage. The Florida law bans posing such questions, recording the responses in the patient's chart, and "unnecessarily harassing" or discriminating against gun owners.

The law makes an exception for gun questions when a physician believes that the information is relevant to the medical care or safety of the patient or someone else. However, Cooke ruled that the law failed to define relevance to medical care and safety as well as harassment, and that this vagueness discouraged physicians from asking any gun questions lest they face disciplinary action by the state health department. She also said the state presented only anecdotal evidence about discrimination against gun-owning patients and that the law had nothing to do with the Second Amendment right to keep or bear arms.

The state of Florida appealed Cooke's decision on Monday to the Eleventh Circuit Court of Appeals in Atlanta, Georgia. Florida Governor Rick Scott said in a press release that the law "was carefully crafted to respect the First Amendment while ensuring a patient's constitutional right to own or possess a firearm without discrimination."

"I signed this legislation into law because I believe it is constitutional and I will continue to defend it," said Scott.

Physicians Never Prevented From Dismissing Uncooperative Patients

The Florida state legislature enacted the law in 2011. One of its chief supporters was the National Rifle Association (NRA), which claims that physicians who ask about firearms have an antigun agenda. The NRA also is wary of information about gun ownership finding its way into electronic health records.

Proponents of the law point to an incident, described in the records of the Florida state legislature, in which a pediatrician asked a child's mother whether she had any guns in the home. When the woman refused to answer, the pediatrician told her she had 30 days to find a new physician. He explained that he routinely inquired about gun ownership, as he did about home swimming pools and cell phone use by teenage drivers, so he could impart needed safety advice. "The mother, however, felt that the question invaded her privacy," according to an analysis of the law prepared by the staff of the Florida House of Representatives.

In her ruling in June, Judge Cooke noted that the law did not prevent a physician from dismissing a patient who refuses to answer questions about gun ownership, and that the state of Florida had conceded that very point.

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