Several years ago, the American Medical Association advised doctors to ask their patients about firearms and “educate patients to the dangers of firearms to children” in the name of public health. But doctors in Florida may be suppressed from giving this medical advice, now that a federal appeals court upheld a Florida law that became known as the “physician gag rule” because it punishes doctors for talking about guns.
The ruling could have major implications as policymakers examine gun violence as a public health issue. The National Rifle Association-backed law it upheld imposes severe limits on when doctors can ask their patients about guns or keep records in their patients’ charts about firearm safety. Doctors who are found to have violated the provision risk sanctions or loss of their license.
At least ten medical associations and the American Bar Association argued that the law should be struck down because doctors must be able to discuss safety topics freely in engaging in preventive care.
In an American Bar Association resolution opposing Florida’s law, the organization reasons, “Preventive care through safety counseling is a pillar of modern medicine, and is vitally important to the health and welfare of patients.” Among other public health topics doctors may discuss with adult patients are alcohol and drug use, wearing bicycle helmets and seat belts, and storage of household toxins. Discussions of gun violence, also, may come into play, both for doctors advising parents on keeping their children safe, and psychiatrists concerned about the psychological well-being of their patients. The American Psychiatric Association has recommended that “health professionals and health systems should ask about firearm ownership whenever clinically appropriate in the judgment of the physician.”
The doctor plaintiffs in this case had argued that they have a First Amendment right to discuss these issues with their patients, and a federal trial court agreed, reasoning that the Firearm Owners Privacy Act “chills practitioners’ speech in a way that impairs the provision of medical care and may ultimately harm the patient.”
But a two-judge majority on the U.S. Court of Appeals for the Eleventh Circuit reversed that ruling and upheld the law, concluding that this speech is “professional in nature” and only has an “incidental” impact on free speech. The majority judges — appointees of Nixon and Bush — reason that the law is limited to “harassing” or “unnecessary” speech, so the law shouldn’t limit doctor remarks that are directly related to patients’ health.
Dissenting Judge Charles R. Wilson vehemently disagreed, dubbing the law a “a gag order that prevents doctors from even asking the first question in a conversation about firearms.”
“As a result of the Act, there is no doubt that many doctors in Florida will significantly curtail, if not altogether cease, discussions with patients about firearms and firearm safety,” Wilson wrote, noting that interpretations of what is “harassing” or “unnecessary” vary dramatically, and that doctors must have the discretion to decide when gun conversations are relevant.
Now that the law has been upheld by the highest court short of the U.S. Supreme Court, other states may seek to adopt similar laws. Policymakers have sought to address guns as a public health issues, as guns threaten to surpass car accidents as the leading cause of deaths among young people, and studies link the presence of guns in the home to suicide. But funding for public health research on gun violence has been thwarted by gun rights lobbying. In fact, the National Rifle Association opposed President Obama’s nomination of Vivek Murthy to become Surgeon General because he stated publicly that he views guns as a public health issue.
If the ruling is not invalidated on rehearing or by the U.S. Supreme Court, Judge Wilson warns it could also have other implications for doctor speech on issues disfavored by legislators, such as the Affordable Care Act or Medicare.