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02/20/2017

“Docs v. Glocks”: Gag rule lifted

The American Academy of Pediatrics, the AMA, and the American Academy of Family Physicians all encourage their members to ask parents about firearms, in the same spirit as they ask about automobile restraints, swimming pools, and other factors that relate to the health of their patients.  If parents report that there are firearms in the home, the pediatricians advise them on gun safety.  Among homes with children and firearms, more than 40% have at least one unlocked firearm.  A trial in 2008 showed encouraging results when pediatricians counseled parents on strategies for safe gun storage and handed out cable locks, reporting a 21.4% increase in families who stored their firearms locked.

In 2011 the State of Florida passed a law (Firearm Owners’ Privacy Act, or FOPA) that forbade doctors from asking patients whether there were firearms in the home.   The law carried some harsh penalties, including a $10,000 fine and loss of medical license.  FOPA was overturned by the Florida Supreme Court on free speech grounds, but was reinstated by a three judge panel of the 11th Circuit.    Florida managed to convince the panel that: 1) this was not impingement of free speech, but merely a regulation of professional activity; 2) the law was necessary to protect the Second Amendment rights of parents.  A number of physicians and organizations appealed, and on February 17, 2017, a full panel of the 11th Circuit once again overturned most of the elements of FOPA.

The court was unanimous and blessedly crisp on the merits of the case.  On the question of free speech, the court opined that “[C]ertain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, content-based regulations [of speech] are presumptively invalid.”  Rejecting the State’s claim that the law regulated speech only incidentally to its primary goal of regulating professional conduct, the court said, “Saying that restrictions on writing and speaking are merely incidental to speech is like saying that limitations on walking and running are merely incidental to ambulation.”

The court also rejected the truly ludicrous claim that FOPA was necessary to protect gun owners’ Second Amendment rights, pointing out that “there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter).”

It will be interesting to see if Florida appeals to the Supreme Court, and if the Court agrees to hear the case.

FOPA is just one of many laws that either gag health professionals from speaking to their patients on certain subjects, or require them to give patients certain information (some of it false, as in purported associations of abortion with subsequent depression), or force them to coerce patients into actions such as listening to a fetal heartbeat before going ahead with an abortion.   Eric Kodish and I wrote an article about how physicians ought to respond to such constraints on their abilities to practice good medicine.  If you’re interested, you can find it here:

Dena S. Davis and Eric Kodish, “Laws that Conflict with the Ethics of Medicine: What Should Doctors Do?,” Hastings Center Report 44, no. 6 (2014). 

 

 

 

 

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