An appeals court has struck down a Florida law that banned physicians from asking patients about firearms, ruling that the so-called gun gag law violates doctors’ First Amendment rights.
The decision by the 11th U.S. Circuit Court of Appeals enables Florida physicians to once again query patients and families about gun ownership and record firearm information in their records. The court, however, left intact a provision that allows patients to refuse answering such questions and upheld another rule that physicians cannot discriminate against patients based on firearm status.
The decision is a huge victory for patient safety and for physicians’ First Amendment rights, said Jason M. Goldman, MD , governor of the American College of Physicians Florida Chapter, a plaintiff in the case.
”While the chapter does not wish to impinge on the rights of gun owners, it has fought this legislation in the legislature and in the courts because it is essential that physicians and patients have the right to an open dialogue, free from government restrictions,” Dr. Goldman said in a statement . “[The] ruling is a victory for patients and the profession.”
Florida Gov. Rick Scott (R) did not respond to a request for comment.
The Florida Firearms Owners’ Privacy Act (FOPA) was enacted in 2011 after complaints from patients that physicians were inquiring about firearms in the home and in some cases, refusing to provide care if patients declined to answer. The law barred physicians from asking about firearms and from recording information about firearms in patient records. The statute also precluded doctors from unnecessarily harassing patients about firearm ownership during an examination and prevented physicians from discriminating against patients based solely on firearm ownership. Violations of the law could result in a $10,000 fine per offense, a letter of reprimand, probation, suspension, compulsory remedial education, or permanent license revocation.
Shortly after the law passed, the ACP Florida Chapter sued the state; the suit was joined by the American Academy of Family Physicians Florida Chapter, the American Academy of Pediatrics Florida chapter, and a group of physicians. The plaintiffs argued that doctors routinely ask patients about potential health and safety risks, including firearms, to assess safety risks, educate patients and parents, and encourage gun safety. The gag law violated doctors’ free speech protections, according to the plaintiffs. The state argued that FOPA ensures patient privacy and protects gun owners’ right to own and bear arms from private encumbrances. A district court ruled in favor of the plaintiffs.
In the ruling, judges for the 11th U.S. Circuit Court of Appeals wrote that the right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.
“As the district court aptly noted, there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies FOPA’s speaker-focused and content-based restrictions on speech,” judges wrote. “Even if there were some possible conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients, the record-keeping, inquiry, and anti-harassment provisions do not advance [the legislative goals] in a permissible way.”
Marion P. Hammer, past president of the National Rifle Association and executive director for the Unified Sportsmen of Florida said the court has overturned sensible and appropriate regulation of the medical profession that sought to protect gun owners from political harassment, and the medically irrelevant questioning and record-keeping about patients who are gun owners.
“The legislature has every right to regulate any profession to protect the public from discrimination and abuse,” Ms. Hammer said in an interview. “Doctors are businessmen, not gods. This activist decision attempts to use the First Amendment as a sword to terrorize the Second Amendment and completely disregards the rights and the will of the elected representatives of the people of Florida.”
The American Medical Association called the court ruling a clear victory against censorship of private medical discussions between patients and physicians.
“The court agreed that in the fields of medicine and public health, information saves lives,” according to an AMA statement . “Studies show that patients who received physician counseling on firearm safety are more likely to adopt one or more safe gun-storage practices. … Counseling patients we care for makes a difference in preventing gun-related injuries and deaths.”
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