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DrG's Medisense Feature Article
17063-Guns,_Doctors,_Florida_Law
Guns, Doctors, Children and First
Amendment Rights
by Ann Gerhardt, MD
May 22, 2017
Print Version
In 2011, the Florida legislature passed a law prohibiting physicians
from asking parents about guns in the home and safety measures they
employ to prevent their children’s death. It was called the
Firearm Owners’ Privacy Act (FOPA) and pitted a state
legislature’s ability to regulate the practice of medicine
against a physician’s First Amendment right of free speech and
her/his responsibility to promote healthful behaviors by patients.
The law prohibits 1) physicians from routinely asking patients about
firearm ownership; 2) prohibits entering information about firearm
ownership in patient records; 3) discriminating against patients based
on firearm ownership; and 4) “unnecessarily harassing a patient
about firearm ownership.” The consequence of doing so could
result in punishment as severe as losing their professional license.
Physicians and medical societies have challenged the law in
courts. A successful stay of enforcement was overturned by a
three-judge panel of the Eleventh Circuit Court of Appeals, but
reinstated by the full 11-judge court. The full court
decided that the Act violated physicians’ free speech rights and
that the anti-harassment clause was unconstitutionally vague.
They decided that all the prohibitions except the one about
discrimination were unconstitutional.
Free speech could not be inhibited under the guise of State
regulation. The state could not prove a substantial state
interest and that “there is no claim, much less any evidence,
that routine questions to patients about the ownership of firearms are
medically inappropriate, ethically problematic or practically
ineffective.”
The part of the decision I like the best is this statement: “We
expect doctors to doggedly exhort unhealthy patients to exercise more,
eat less, or stop smoking, even when such admonishments may
‘annoy persistently.’” I’d be in big
trouble if it were illegal to nag patients to switch to healthful and
safe lifestyles.
The court felt that laws regulating physician speech must be designed
to enhance rather than harm patient safety.
In other words, the law must favor a
physician’s duty to the child’s safety over a
parent’s right to privacy concerning gun ownership.
Approximately one-third of all U.S. households with children under the
age of 18 have a firearm. In more than 40% of these households,
gun owners store them unlocked, a key factor contributing to the
approximately 2000 accidental shootings of children and teens each
year. That doesn’t include homicides and suicides, and all
these numbers are hard to pin down because of variable reporting
methods. Though most Americans believe that having a gun in the
home makes them safer, public health research shows that being in a
home with a gun significantly increases one’s risk of death by
homicide, suicide or an unintentional shooting.
So now what, other than a possible appeal to the Supreme Court? This
law presumes that physicians ask about firearms in the home.
Unfortunately, most don’t. I hope the good that comes out
of this law becomes a reminder that doctors should include firearm
safety in the litany of health and injury-related behaviors we address.
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