Take Two Losses and Call Me in the Morning: Florida Court Again Sides With Patient Privacy, Hands Nosy Doctors Second Defeat
Friday, July 31, 2015
Anti-gun doctors may need to get their own blood
pressure checked after the U.S. Court of Appeals for the Eleventh
Circuit again upheld Florida’s Firearm Owners’ Privacy Act.
As we reported last summer,
the law was passed after an escalating series of events in which
patients were harassed or denied access to services because they refused
to be interrogated by their doctors about their ownership of firearms. A
group of Florida doctors committed to the idea of haranguing patients
for exercising their Second Amendment rights sued, claiming a First
Amendment right to grill patients about firearm ownership, even where it
isn’t relevant to the patient’s care.
Unsurprisingly, the appellate court upheld the law
last July, stating: “The essence of the Act is simple: medical
practitioners should not record information or inquire about patients’
firearm-ownership status when doing so is not necessary to providing the
patient with good medical care.” Far from a ban on doctors’ expressing
their views about firearms or other public policy or medical issues, the
court held, the Act merely “protects a patient’s ability to receive
effective medical treatment without compromising the patient’s privacy
with regard to matters unrelated to healthcare.”
It’s no secret that the medical establishment has long been hostile toward the private ownership of firearms. No less a doctor than President Obama’s pick for U.S. Surgeon General has engaged in anti-gun activism. Even WebMD.com, a common online source for medical information, counsels parents
to “to avoid keeping guns and firearms in the home,” and only provides
recommendations for “secure” storage when purging the home of firearms
altogether “is not possible.” This history, as well as outright discrimination against patients who refused to discuss their gun ownership, formed the backdrop for Florida’s law.
It’s also no surprise that the plaintiffs and other gun
control advocates were not happy with the loss the Eleventh Circuit
handed to them back in 2014. “Censorship in Your Doctor’s Office,” huffed the New York Times. A Florida physician’s group called the decision “egregious” and “dangerous” and claimed it would silence “life-saving conversations.”
In any case, the panel of judges that issued the original
opinion decided on their own initiative to revisit their original
analysis. The results of that reconsideration were issued on Tuesday, in
a revised 77-page opinion. Spoiler alert: the doctors still lose and patient privacy still wins.
Whereas the original opinion characterized the regulated
behavior more as conduct – i.e., medical practice – rather than pure
speech, the revised opinion delves more deeply into the First Amendment
claims raised by the plaintiffs. Finding that inquiries into gun
ownership, entries about gun ownership in medical records, and even
verbal “harassment” of gun owners are all forms of “speech” protected by
the First Amendment, the court then considers the seriousness of the
regulatory intrusion and level of scrutiny to be applied to it.
The court observes, “All regulations of speech are not
created equal in the eyes of the First Amendment.” Here, the court
characterizes the regulated expression as “professional speech.” It then
finds the government has a freer hand to regulate in this context
because of “the authority—duty, even—of States to regulate the practice
of professions to ‘shield the public against the untrustworthy, the
incompetent, or the irresponsible.’” In this case, “The State made the
commonsense determination that inquiry about firearm ownership, a topic
which many of its citizens find highly private, falls outside the bounds
of good medical care to the extent the physician knows such inquiry to
be entirely irrelevant to the medical care or safety of a patient or any
person.” The court therefore determines that “intermediate scrutiny” is
the proper standard for evaluating the law.
The court identifies the state’s interests in enacting the
law as “protecting the public by regulating the medical profession so
as to safeguard patient privacy,” which it finds “substantial” enough to
satisfy intermediate scrutiny. It then goes on to find that the law’s
requirements have a “direct and material” relationship to alleviating
those harms. Citing the legislative record of complaints against
physicians, and the limited nature of the restrictions imposed by the
law, the court determines “’simple common sense’ furnishes ample support
for the legislature’s decision.” “The State need not point to
peer-reviewed studies or conduct extensive surveys,” the opinion states,
“to establish that proscribing highly intrusive speech that physicians
themselves do not believe to be relevant or necessary directly advances
the State’s interest in protecting its citizens from harmful or
ineffective professional practices and safeguarding their privacy.”
We certainly agree, and we credit the Court for its
thorough, well-reasoned opinion. Whether it’s the final word in the
case, however, remains to be seen. One of the three judges hearing the
case filed a lengthy dissent, echoing the familiar refrain that doctors’ must
be free to address the “public health problem” posed by firearms
according to their own beliefs. The plaintiffs still have the options of
petitioning the full roster of Eleventh Circuit judges to hear the case
en banc or to appeal directly to the Supreme Court.
Established in 1975, the Institute for Legislative
Action (ILA) is the "lobbying" arm of the National Rifle Association of
America. ILA is responsible for preserving the right of all law-abiding
individuals in the legislative, political, and legal arenas, to
purchase, possess and use firearms for legitimate purposes as guaranteed
by the Second Amendment to the U.S. Constitution.
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