American Bar Association Challenges Florida 'Gun-Gag' Ruling

Ken Terry

September 14, 2015

The American Bar Association (ABA) has filed a new amicus brief opposing a federal court decision in Florida that bars physicians from asking patients about gun ownership or the presence of guns in their homes unless there is a specific medical need to do so.

The outcome of the case is important to physicians across the nation, as a dozen states have introduced laws similar to the 2011 Florida law that was just upheld for the second time by the US Court of Appeals for the Eleventh Circuit.

The ABA filed its brief in the case of Wollschlaeger, et al., vs the Governor of the State of Florida. The plaintiffs include a group of physicians and the Florida chapters of the American Academy of Pediatrics, the American Academy of Family Physicians, and the American College of Physicians.

The Florida law at issue, the Firearm Owners' Privacy Act, prohibits healthcare practitioners from asking patients about their own or a family member's ownership of a gun or its presence in their home unless it is relevant to the patient's medical care or safety. With the same caveat, neither the practitioner nor a healthcare facility can enter such information into a patient's medical record. Physicians who violate these provisions may be subject to disciplinary actions.

In 2014, the Eleventh Circuit Appeals Court upheld the constitutionality of the law by a 2 to 1 vote, and the ABA filed its first amicus brief. The federal court then vacated its opinion and issued a second one affirming the statute this year.

The revised ABA brief states that the court's decision "incorrectly upholds a restriction on truthful speech by regulated professionals, under the guise of regulating the medical profession."

The brief also summarizes the statistics and policies of medical organizations that recommend gun safety counseling, especially in homes with children and other at-risk individuals. It notes the importance of preventive healthcare and argues that the Florida law violates the First Amendment rights of healthcare practitioners and their patients. The brief also maintains that the statute is not needed to protect the medical privacy rights of patients, which are already shielded by several laws.

The ABA requests a hearing of the Florida law by the full panel of judges on the Eleventh Circuit Court of Appeals, noting that this is a case of exceptional importance.

The American Medical Association (AMA) last year expressed its opposition to the Florida statute after the first appeals court decision. Then-AMA-President Robert Wah said the law "poses real harm to patients as it interferes with physicians' ability to deliver safe care, and hinders patients' access to the most relevant information available," according to an AMA statement.


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