BY IAN MILLHISER
A divided federal appeals court held on Tuesday that Florida lawmakers could censor what doctors say to their patients, handing a victory to gun groups in the process. This is the second time the U.S. Court of Appeals for the Eleventh Circuit upheld the law, often referred to as the “physician gag rule,” which punishes many doctors who speak to their patients about guns. Tuesday’s opinion replaces an opinion handed down last year which reached the same result.
The Florida law restricts record-keeping by doctors concerning their patients’ firearm ownership, and also forbids physicians from discriminating against gun owners. The law’s most constitutionally problematic provision provides that doctors “’shall respect a patient’s right to privacy and should refrain’ from inquiring as to whether a patient or his or her family owns firearms, unless the practitioner or facility believes in good faith that the ‘information is relevant to the patient’s medical care or safety, or the safety of others.’”
There are any number of legitimate reasons why a doctor may wish to inquire about a patient’s gun ownership — a pediatrician may be concerned that children could discover their parent’s gun an injure themselves, for example, or a psychiatrist may worry that a patient with suicidal thoughts is less safe in a home with guns — and the law appears to permit physicians to make gun-related inquiries that pertain to a patient’s health or safety. Judge Gerald Tjofalt’s opinion on behalf of two members of a three-judge panel leans heavily on this aspect of the law. “[T]he Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care,” Tjoflat writes in the introduction to his opinion.
Doctors who violate the act, however, face “disciplinary measures including fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her medical license.” For this reason, several physicians’ groups feared that the law would have a “chilling effect” on good medical practice. That is, a doctor would not want to risk the drastic professional consequences that could result if a medical board deemed his gun-related questions unacceptable, so the doctor might simply refrain from asking any questions about guns — even questions that were obviously related to safety or patient health.
This is a First Amendment case. The Florida law forbids certain kinds of people from engaging in certain kinds of speech. Ordinarily, such laws are preemptively unconstitutional, and the government must overcome the highest level of constitutional scrutiny in order to justify such a law. Tjoflat, however, concludes that the ordinary rule does not apply here — and that he may treat the Florida law with less constitutional skepticism — because the law regulates speech between a professional and a client. Within such a professional relationship, “the government has a strong interest in policing the boundaries of the relationship to protect the weaker party from exploitation.”
There is wisdom to this conclusion. Lawyers unbound by professional regulation may give incompetent or ideologically-driven advice to unwitting clients. Financial advisers could steer clients towards investments that benefit the adviser. Doctors might advise patients to take expensive drugs because they have a deal on the side with a pharmaceutical company. Tjoflat is correct that professionals can exploit the trust placed in them to the determent of their clients or patients, and that state regulation can effectively prevent many such breaches of trust.
Yet Tjoflat’s opinion never fully explains how, exactly, doctors exploit their patients if they inquire about that patient’s gun ownership. At one point, he concludes that “it is a matter of common sense that restricting unnecessary inquiry eliciting such information directly advances the State’s substantial interest in regulating the medical profession to prevent harmful or ineffective medical care and safeguard patient privacy.” And, indeed, Tjoflat brings up the subject of patient privacy repeatedly in his opinion, at one point noting that many individuals find the topic of gun ownership “highly private.”
Yet, as Aaron Carroll, a professor of pediatrics at Indiana University, explains in the New York Times, “[i]f the courts decide that people have the right never to be asked sensitive questions, they’re interfering with the relationship between doctor and patient.”
Dr. Carroll begins his explanation by recounting part of his last yearly physical. As part of the examination, Carroll’s own doctor “asked if I was sexually active with my wife. Then she asked if I was sexually active with anyone other than my wife.” A doctor cannot have a full picture of a patient’s health unless they know many intimate and deeply personal details about the patient’s sex life, their home life and potentially even the frequency of the patient’s bowel movements. As the Supreme Court explained in Trammel v. United States, “the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.”
At least in Florida, however, the National Rifle Association will stand between that intimate relationship between patient and physician so long as Judge Tjoflat’s opinion remains in effect.
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