The United States Court of Appeals for the Eleventh Circuit has handed down a ruling that vacated an injunction of the Florida law barring physicians from discussing guns in their homes when it is not related to medical care. The lower court found the law violative of the first amendment, but the Eleventh Circuit found that it does not violate free speech. I have always found this law highly troubling on both free speech grounds as well as policy grounds. Just as I have long objected to legislatures interfering with teachers, I have the same reservations about their micromanaging doctors. The law is commonly referred to as “Docs for Glocks.”
On June 2, 2011, Florida Governor Rick Scott signed Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities. The Act provides follows:
(1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a health care facility licensed under chapter 395 [of the Florida Statutes] may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.
(2) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 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 or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry. . . .
(5) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination. . . .
Fla. Stat. § 790.338.
Putting aside the intrusion into doctor and patient discussions, the law seems to be dangerously vague on provisions like “may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant.”
The District Court concluded that the State acted on the basis of purely anecdotal information and provided no evidence that discrimination or harassment based on firearm ownership is pervasive and lacks a legitimate or compelling interest in protecting its citizens “from barriers to the receipt of medical care arising from [such] discrimination or harassment.”
In the 2-1 panel decision, the majority emphasizes the need of the law to protect the privacy of patients who are faced with a more powerful authority figure in medical examinations:
The Act seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms. The Act recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician’s guidance, and submit to the physician’s authority. In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct—which almost universally mandate respect for patient privacy—the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
As such, we find that the Act is a legitimate regulation of professional conduct.
Judge Tjoflat draws a line that may be difficult for doctors to discern: “Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.” The panel later explains:
The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. § 790.338(2). Such hortatory language, the State argues, does not constitute a mandate that physicians must not inquire. Thus, the State argues, because the Act does not in fact actually prohibit the conduct Plaintiffs wish to engage in, Plaintiffs lack standing to challenge the Act because they have not demonstrated injury-in-fact. Moreover, the State argues, we have an obligation to read the Act as a mere recommendation that physicians refrain from irrelevant inquiry and record-keeping about firearms, in order to construe the Act as valid.
Judge Wilson dissents, stating that “Simply put, the Act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The Act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”
I would be surprised if this case was not appealed for en banc review and then was appealed to the Supreme Court. This is a very interesting issue upon which people of good faith can certainly disagree. For those of us associated with the free speech community, the law obviously raises serious concerns about its vagueness and its chilling effect. This would make for a fascinating appeal and we will try to follow it. It would seem odd to drop the appeal with a split panel on such important questions.
Here is the ruling: WOLLSCHLAEGER
Would asking, “where did you go for vacation”, be to intrusive?
Rights of self-reliant individuals over governmental tyranny and oppression:
George Mason – “He left the convention bitterly disappointed, however, and became one of the Constitution’s most vocal opponents. “It has no declaration of rights,” he was to state. Ultimately, George Mason’s views prevailed. When James Madison drafted the amendments to the Constitution that were to become the Bill of Rights, he drew heavily upon the ideas put forth in the Virginia Declaration of Rights.”
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2nd Amendment
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
*******************************************************************************************
Does anyone here have any grasp of the primacy; the rights of the individual over the government? Really?
Was the Preamble written and presented to be ignored?
Police/fire, courts, military and PROMOTE the general welfare. General means “all or every person” (i.e. water, electricity, mail) welfare means “get along” “well” or fare well, thus, limit government to promoting the function of areas of society that all people use in the same amounts such as water, mail, electricity, natural gas, etc.; only the promotion.
If the Preamble was written to be adhered to, all of the control of the economy and redistribution are unconstitutional. All industry is private as is property.
The only people who miss the intent of the Founders are people with a profound desire to miss the intent of the Founders.
Well, if any doctor ever asked me, I would say “Gun??? What’s that???” It’s none of their darn business and none of the gov’ts either. Here is another story on this topic, which shows why us “clingers” view this kind of stuff with alarm:
http://www.thegatewaypundit.com/2014/03/obama-surgeon-general-pick-wants-doctors-to-ask-patients-about-guns-in-home-include-info-in-obamacare-database/
I think it is a lot more true that doctors and health providers kill about 200,000 Americans yearly through various forms of malpractice. Sooo, doctors heal yourselves!!!
Squeeky Fromm
Girl Reporter
Steve F: I have a great relationship with each of my doctors. I think you may have a self image problem, or maybe new doctors. Hey if Doc Martin ever came to practice in my town I’d try the doctor in the next town.
Doc Martin is a great doctor. Sometimes you can put up with Asperger’s when they are worth it.
I believe the legislature was responding to worry that medical records could be used against the patient’s 2nd amendment rights.
I also don’t see how it is relevant unless there is medical issue that necessitates this. We have seen before where individuals were subject to unconstitutional deprivations due to agencies like CPS by reason of the knowledge that a person owned firearms. I think this is an attempt to prevent this legislatively.
Since these new electronic records are liable to both hacking and intrusion by government agencies, I am really against doctors asking any questions in this area.
Confess your sins my son. A doctor and a part time priest.
The standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy.
When a person unburdens his soul and confesses his sins to a priest in the Sacrament of Penance, a very sacred trust is formed.
The priest must maintain absolute secrecy about anything that a person confesses. For this reason, confessionals were developed
with screens to protect the anonymity of the penitent. This secrecy is called “the sacramental seal,” “the seal of the confessional,” or “the seal of confession.”
Kind of like a tax loophole.
“I would be surprised if this case was not appealed for en banc review …” – JT
(Fordham Law Review, Vol. 82, Issue 4, 2014). Good data on the practices of en banc review across the federal circuits.
Why not file an amicus brief urging an en banc hearing?
The State of Florida is run by idiots. Many of the reasons are set forth above, but this has to be the stupidest piece of legislation in a long time. It reminds of when these morons tried to decide who should and should not be kept on life support. Or who should be the President. The incompetence of the Florida State Government is already the stuff of legend, this just dots the i and crosses the t. Heaven help them.
Beldar, LOL!
It is a strange context for a Free Speech issue to be considered. I would have thought that it would be litigated on a Second Amendment basis. What they need in that state is a Dont Ask, Dont Tell statute. And while they are at it, doctors should be barred from asking me if I ever porked a hooker.
Good post Mike,
I haven’t had time to read the opinion as yet, but as a Florida resident, I expressed opposition to this ridiculous piece of legislation from the beginning. I too hope that it gets to the Supreme Court. Judge Tjoflat’s observation that a patient “must submit to the physician’s authority” is absurd on its face. And the argument that the legislation is largely “suggestive” is specious. If it is “suggestive,” it is not an appropriate subject of a regulation. If it is directive, it is unconstitutional. And what the hell does “unnecessarily harassing” even mean? Must we distinguish it from “necessarily harassing”? But I ramble. I’ll have more to say after I have read the decision.
I believe in the righteousness of ALL our amendments, except for Prohibition, and that was corrected. The Doc I see, and her colleagues are very liberal, it’s Madison. Their politics means virtually nothing to me. My doc is a Harvard grad and as good as they come. That’s what counts. The clinic has a policy of asking about guns in the home. Although I see the left having a war against the 2nd Amendment, I find this question by a doctor to be righteous. If you don’t like the question, don’t answer it.
“Docs for Glocks”? Really? 😀
Normally I would agree with you, but doctors are often perceived as superior beings with patients being very reluctant to offend by refusing to answer.
Information gathered by doctors enters the records permanently, and in spite of HIPPA, I have little confidence that there won’t be adverse consequences to the respondent.
Even information that may be benign right now could become harmful as circumstances and laws change.
Once adverse information is in the system, it is practically impossible to expunge that information.
Look at questions once answered truthfully by patients about tobacco use; significant consequences.
We, The United? States of America…. are headed towards total Anarchy!
Reblogged this on Reality Check.
Repub “judges” know no bounds of stupidity.
Freedom of speach for corporations but not for doctors! Great.