Court Upholds Ban on Doctors Discussing Gun Ownership

A federal appeals court has reversed a lower court’s ruling that Florida’s law limiting what physicians can discuss with their patients regarding gun ownership violates physicians’ First Amendment right to free speech. The lower court had issued an injunction in June 2012 against enforcing the law, which was signed by Florida Gov. Rick Scott (R) in June 2011.

APA, the AMA, and several other physician organizations had submitted an amicus curiae brief to the U.S. Court of Appeals for the 11th Circuit urging the justices to reject the state’s attempt to revive the law after the lower court decision, pointing out that asking about gun ownership and the presence of guns in the home is an important health-related screening tool, similar to asking about substances of abuse, smoking, and eating habits, for example.

But in its July 25 ruling, the appeals court found that the law did not violate free-speech rights but was instead a “legitimate regulation” of medical conduct in the service of providing patients with “good medical care.” It also rejected the lower court’s ruling that physician inquiries about gun ownership do not violate the Second Amendment right to bear arms.

The majority of the appeals court panel ruled that the law “simply codifies that good medical care does not require inquiry or record keeping regarding firearms when unnecessary to a patient’s care. . . . Any burden the Act places on physician speech is thus entirely incidental.”

The justices also said that patients’ right to privacy regarding gun ownership takes precedence over physicians’ right to inquire about this subject. This part of the decision is a rejection of the argument by APA and the other organizations in their amicus brief that there is no violation of patients’ right to privacy when physicians ask about guns in the home, because patients have the option of declining to answer such questions. The appeals court maintained, however, that the law “recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness. . . [and must] submit to the physician’s authority.”

Commenting on the appeals court decision, Paul Appelbaum, M.D., past chair of the APA Committee on Judicial Action and the Dollard Professor of Psychiatry, Medicine, and Law at Columbia University, told Psychiatric News, “The 11th Circuit’s decision upholding Florida’s gag law is troubling because it is one more example of courts and legislatures attempting to control what doctors say to patients. Here, the judges have decided that asking routinely about the presence of guns is contrary to good medical practice and hence can be prohibited by the state. When courts set the standards for clinical interactions rather than leaving that task in medical hands, the inevitable result is harmful to the public’s health.” ■

The appeals court ruling in Wollschlaeger v. Florida can be accessed here.