Appeals Court Hears Arguments on Physician Gun-Gag Law

July 18, 2013

The top attorney for the state of Florida asked a federal appeals court today to reinstate a Florida law that regulates what physicians can ask patients about gun ownership, asserting that the law does not actually stifle such questions.

Yes, it does, countered a lawyer representing several Florida medical societies and individual physicians who challenged the law as an infringement on their First Amendment right to free speech.

Last summer, a federal district judge in Miami, Florida, agreed with the white coats, declaring the law unconstitutional. The state of Florida quickly took the case upstairs to the US Court of Appeals for the Eleventh Circuit. Although headquartered in Atlanta, Georgia, the appellate court dispatched a 3-judge panel to Miami to hear oral arguments today in what some call the "docs versus Glocks" case.

Florida lawmakers passed the Firearm Owners Privacy Act in 2011 intending to protect the Second Amendment gun rights of patients. They cited instances of patients feeling harassed by physicians who asked if they owned a gun. In one case, they said, a pediatrician told a young mother to find a new physician after she refused to answer a question about guns in the home. The National Rifle Association (NRA), which claims that the American Academy of Pediatricians (AAP) has a gun-control agenda, supports the law. Physicians have countered that the gun question is only a prelude to a discussion, if needed, of safe gun practices, including storage, lest a small child happen upon a loaded pistol.

The case has become another forum for the nation's ongoing debate about gun laws. The Brady Center to Prevent Gun Violence has helped provide the Florida physicians with legal representation. A number of major medical societies, including the AAP and the American Medical Association, filed a friend-of-the court brief in the appellate proceedings in favor of keeping the Florida law dead and buried. The NRA submitted a friend-of-the-court brief in support of the law, saying that "it exhorts doctors to stick to practicing medicine...rather than pushing their own political agendas, and it protects patients from doctors who refuse to do so."

The Much-Debated Relevance Exception

The continuing legal battle has focused on what the words of the overturned Florida law actually mean. It says that a "healthcare practitioner...shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm." However, the law permits such questions if the clinician "in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others." Similarly, a clinician "may not intentionally enter" gun ownership information in the medical record unless it is relevant to patient care and safety.

The law also stipulates that physicians "may not discriminate" against gun owners and "should refrain from unnecessarily harassing" them during an examination, although it does preserve the physician's right to choose his or her patients. If the law were to be enforced, violators would risk disciplinary action by the state medical board and a fine up to $10,000.

From the beginning, physicians have called the relevance exception for the gun question too fuzzy to give them any sense of legal protection. The relevance of the question, they contend, only becomes apparent once the patient answers. US District Judge Marcia Cooke, who struck down the law, said its vagueness helped put a chill on free speech.

In a brief filed with the appellate court, the state of Florida said that Cooke had mistakenly viewed the law as prohibiting physicians from asking patients about firearms. The word "relevance," the state said, has a plain meaning, and the relevance exception is broad enough to apply to "either current or foreseeable medical or safety related concerns."

At the same time, the law goes beyond the issue of free speech to regulate professional conduct by prohibiting physicians from harassing or discriminating against gun owners or entering irrelevant gun information in the patient's chart, the state of Florida said, explaining, "At most, the law incidentally affects speech, while targeting discriminatory professional conduct."

In today's hearing, Allen Winsor, the solicitor general of Florida, reiterated that the Firearm Owners Privacy Act does not forbid the gun question. Florida lawmakers, Winsor said, just want physicians to exercise some restraint.

"The wording in the law is 'should refrain,' " the Associated Press quotes Winsor as telling the judges. "It's not mandating anything. It's recommending. The use of this term is critical in this case."

Douglas Hallward-Driemeier, an attorney representing the medical societies and physicians in the case, said the law's wording is threatening enough to keep physicians from asking about guns lest they put their medical licenses on the line.

"We think it's relevant to ask every patient, every time," the Associated Press quoted Hallward-Driemeier as saying. "Doctors will self-censor."

Both sides are now waiting for the appellate court to issue a decision that may either uphold the lower-court decision or undo it.

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