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Florida Case Balances Firearms and Free Speech

by George Prudden, published

In a recent ruling, Judge Marcia Cook permanently blocked a Florida law that prohibited physicians and other medical providers from asking patients whether they owned firearms or discussing firearms safety. The injunction was based on the providers' First Amendment rights.

Sounds like a simple, straightforward ruling about a simple law. A health care provider should be able to ask any appropriate question regarding health prevention and provide counseling appropriate for the patient:

"What is curious about this law—and what makes it different from so many other lawsinvolving practitioners’ speech—is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient (or record such information), whether relevant or not at the time of the consult with the patient.  The purpose of preventive medicine is to discuss with a patienttopics that, while perhaps not relevant to a patient’s medical safety at the time, informs the patient about general concerns that may arise in the future.  Thus, a doctor might discuss the dangers of developing diabetes even with a patient who is within normal weight limits, or the dangers of children riding a bike without a helmet with the parents of an infant, or the dangers of smoking with a non-smoker so that she will not take up that habit." (ibid)

Sounds reasonable, so what has set off this controversy?

An Ocala, Florida mother took her child to a pediatrician for a visit. As part of the registration process, the mother was handed a form asking questions about the child's health history and other lifestyle questions such as smoking and seat belt use. Included was a question regarding firearms ownership. The mother elected to not answer the question. It was her feeling that this did not directly relate to her child's health and was intrusive. She was also aware of the American Academy of Pediatrics' (AAP) vehement position against firearms:

"1. The AAP affirms that the most effective measure to prevent firearm-related injuries to children and adolescents is the absence of guns from homes and communities. a) Firearm regulation, to include bans of handguns and assault weapons, is the most effective way to reduce firearm-related injuries. b) Pediatricians and other child health care professionals are urged to inform parents about the dangers of guns in and outside the home. The AAP recommends that pediatricians incorporate questions about guns into their patient history taking and urge parents who possess guns to remove them, especially handguns, from the home. Loaded firearms and unlocked firearms and ammunition represent a serious danger to children and adolescents." (Pediatrics Vol. 105 No. 4 April 1, 2000 pp. 888 -895)

Because she declined to answer the question, she was asked to find another health care provider for her family.

After this story was circulated in the firearms community, many others with similar experiences came forward. They brought this to the attention of their state legislators, and the Firearm Owners' Privacy Act was passed. The law says, in part:

"A health care provider licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care provider or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety may make such a verbal or written inquiry." (ibid)

The last phrase is intended to allow providers to question the availability of firearms in the case of a patient who may be an imminent risk to themselves or others.

Firearms owners have two concerns. First is that health care providers may have expertise in counseling on diabetes or high blood pressure, but few have specialized training in counseling on firearms. As outlined in the AAP position, firearms should not even be in the house. Absent specific training in firearms safety, providers lack the expertise. Later in the paper, AAP advocates the use of trigger locks. The organization that does the most training on firearms safety in the country, the National Rifle Association, counsels against the use of trigger locks. Unless they are installed correctly, a firearm can be shot with a trigger lock in place. The other concern of firearms owners relates to the privacy of their information. The Affordable Care Act ("Obamacare") encourages, and in fact, pays to use electronic medical records. Part of the reason for this is so that aggregate health care information can be used for public health studies. Nonetheless there are privacy concerns either from accidental release of data or intentional mining of data.

The AAP position is problematic, and seems more political than public health related. In a discussion of the Second Amendment implications of their position, the AAP says "Several legal reviews emphasize that the Second Amendment does not protect an individual's gun ownership." This notion contradicts the Supreme Court finding in District of Columbia v Heller, in which they state "the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." Though the AAP position paper predates the Heller decision, there has yet to be a retraction or modification.

For families living in suburban areas, there is probably a choice about health care providers, and if one provider does not agree with their firearm ownership they can just find another. For people in rural areas, the chances of finding another provider are limited. The owner may be forced to either lie to the provider or face arguments about firearms safety.

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