Florida's crazy new law preventing doctors from asking patients about their guns. 

The law, lawyers, and the court.
June 8 2011 6:51 PM

Shooting Pains

Florida's crazy new law preventing doctors from asking patients about their guns. 

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And that leads us to the real concern driving the Florida law: hurt feelings.

NRA's Tallahassee lobbyist, Marion Hammer, explained to NPR that the real aim behind the bill was "helping families who are complaining about being questioned about gun ownership, and the growing anti-gun political agenda being carried out in examination rooms by doctors and staffs." Hammer told the Orlando Sentinel this week that "the reason the bill passed is because people were being abused, their rights were being violated and legislators said over and over again, 'It's none of their business if they have guns.' "

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And what patient "rights" are being violated again?

Well, according to the Hammer, all those Florida pediatricians, under the tissue-thin pretext of worrying about dead and injured children are, in fact, just harassing their parents "for political purposes." Just to close the circle here, it's worth recalling that doctors around the country are now being forced—"for political purposes"—to show pregnant women unsolicited sonograms, to read from factually inaccurate scripts, and to offer up unwanted "counseling" before providing abortions. Yet not one of those state legislatures has balked at the idea that doctors are being conscripted into a political agenda or intruding on intimate decisions best left to the patient.

In fact, despite his avowed support of the "privacy" rights of gun owners against their physicians, Scott has pledged to sign five abortion bills, just passed in the Florida legislature, that actually do insert the state into the constitutionally protected relationship between a woman and her doctor. These bills include a measure (a version of which was vetoed last year by Gov. Charlie Crist) that would require a woman to pay for and undergo an ultrasound before receiving an abortion, even if her doctor doesn't recommend it. In Scott's constitutional worldview, not even a doctor can intrude on the sanctity of the home. State legislators, on the other hand, have an unfettered right of access to women's bodies.

On the other side of the ledger, physicians really do have legitimate First Amendment interests at risk under the new "gag rule," which is why a suit by three Florida doctors and three physician trade groups was filed this week in a federal court in Florida. Among their other claims, the doctors urge that the new law impinges on physician freedoms by "expressly restrict[ing] health care practitioners, in certain vaguely defined circumstances, from asking patients questions related to gun safety or recording information from those conversations in patients' medical records," and penalizing "unnecessar[y] harass[ment]" and "discrimination" on the basis of a patient's "possession or ownership of a firearm," while defining neither of those terms. The doctors remind the court that doctoring requires more than just a passive transfer of affirming good thoughts to the patient: "The practice of medicine requires a free and open exchange of questions, answers, and information between a patient and health care practitioner. Indeed, for that reason, both state and federal law protect the confidentiality of such conversations."

Defenders of the new law, including the governor, are quick to point out that the law has an escape clause for physicians who ask about firearms if they "believe that this information is relevant to the patient's medical care or safety, or the safety of others." To be clear, then, the law protects only against doctors looking into one's gun ownership for purely recreational or nonprofessional reasons. And since the law nowhere defines when a doctor has crossed the line from "discussing" one's guns to "harassing" gun-owners, one might reasonably suppose that anyone who receives a gun-safety pamphlet, and feels a little "harassed" by it, can report her physician for a violation.

A gun-owner's Second Amendment interest in owning a gun is not implicated by physician inquiries into his guns. There is no First Amendment right implicated here, either—since patients have no such rights against their doctors and don't have to answer intrusive physician inquiries, anyhow. Truth be told, there is no constitutional or privacy interest at issue at all in the Florida gag rule, beyond Brodeur's free-floating "right" not to be questioned by imaginary co-conspirators in an imaginary national plot to steal your gun. And if that is really all that's at stake here, a pediatrician probably isn't the doctor you should be seeing in the first place.