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. 

Florida Gov. Rick Scott. Click image to expand.
Florida Gov. Rick Scott

Gov. Rick Scott signed a bill this month making Florida the first state in which it's illegal for any physician to "ask questions concerning the ownership of a firearm" or "harass … a patient about firearm ownership during an examination." The stated purpose of this law is to protect patient "privacy." Which raises a very important legal and constitutional question: Huh?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Patient privacy is already protected by law, and the right to bear arms is also already protected by law. So the new bill mainly just protects patients from feeling bad or judged at their doctor's office. Now if Florida doctors make their patients feel bad about their guns—or if patients only think their doctors are trying to make them feel bad about their guns—the doctors are on the hook for disciplinary proceedings, possible revocation of their medical license, and administrative fines up to $10,000 per count.

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The scuffle over "docs vs. Glocks" seems to have started when a pediatrician in Ocala asked the mother of a young child whether she kept guns in the home. She refused to answer because, as she put it, "whether I have a gun has nothing to do with the health of my child." When the doctor told her to find another pediatrician, the women threatened to call a lawyer. Consider: According to a suit filed this week by the Brady Center, 65 children and teenagers are shot every day in America, and eight of them die; one-third of American homes with children under 18 have a firearms in them; and more than 40 percent of those households store their guns unlocked and a quarter of those homes store them loaded. What was it that mother said again? Oh, right, guns have nothing to do with the health of our children.

If the possibility of accidental death, grievous injury, or suicide has nothing to do with children's health, one has to wonder what does. Surely it involves broccoli.

Pediatricians are trained—indeed, they are explicitly advised by the American Academy of Pediatrics—to inquire about the presence of open containers of bleach, swimming pools, balloons, and toilet locks in the homes of their patients. It's part of their job to educate parents about potentially lethal dangers around the home. (Pediatricians have also been known to ask about menstruation, painful sex after childbirth, birth control, and the travails of potty training, all in the interest of patient well-being, by the way). So one might wonder why an inquiry about guns is the place to draw the line in the sand, the ultimate threat to personal privacy. For an answer to that question, you need to depart the world of what actually is for a ramble through the rocky shoals of what could be. What could be if you were, say, Paul Revere and the British were coming to, um, take your personal guns away and stuff.

That's right. The NRA-sponsored law, which in its original incarnation attempted to punish doctors with prison time or fines up to $5 million for merely asking a patient about gun ownership, is predicated on the lie that keeps on giving: that President Obama is coming for yer guns.

It hardly bears mentioning that there is no evidence that Obama is coming for your guns. There is also no evidence that Obama's new health care law is—as this law's sponsor, Rep. Jason Brodeur has claimed—a thinly veiled effort to take away your guns or your insurance because you have a gun. As Brodeur explained his concerns to the Fort Myers News-Press: "What we don't want to do is have law-abiding firearm owners worried that the information is going to be recorded and then sent to their insurance company. If the overreaching federal government actually takes over health care, they're worried that Washington, D.C., is going to know whether or not they own a gun and so this is really just a privacy protection."

As PolitiFact Florida explains, however, the new health care law explicitly cannot be used to collect gun data or to raise insurance premiums of gun owners. There is no national firearms registry. Your doctor's notes about you are, and remain, confidential. So the only "privacy" issue here has nothing whatever to do with potential government incursions on your rights. It's all about gun owners' assertions that their gun ownership and storage habits are "private."

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.' "

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.

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