The 11th U.S. Circuit Court of Appeals ruled Thursday that doctors must be permitted to talk to their patients about guns, delivering a blow to gun-rights advocates who claim the doctor conversations threaten to infringe Second Amendment protections.
In 2011, Florida lawmakers passed the National Rifle Association-backed bill, nicknamed the “physician gag law.” Florida Gov. Rick Scott, a Republican, signed the bill into law in June of that year, according to the University of Miami Law Review:
[T]he Act provides that a doctor “should refrain from” asking a patient about firearm ownership, unless she believes “in good faith” that the “information is relevant to the patient’s medical care or safety, or the safety of others.” Additionally, according to the Act, doctors “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.”
The legislation was immediately subjected to lawsuits, namely from the American Academy of Pediatrics, the American Academy of Family Physicians and the American College of Physicians, all of which saw the law as unconstitutional. And in 2013, U.S. District Judge Marcia Cooke enjoined the state of Florida from implementing the legislation, arguing the law is in violation of the First Amendment and is unconstitutionally vague.
However, a three-judge panel reversed Cooke’s order in 2014, upholding the constitutionality of the law, sending the legal battle to a higher court.
This week’s ruling by the 11th U.S. Circuit Court of Appeals went against that panel’s decision and the judges noted that there is no evidence — in their view — that doctors asking about firearms limits patients’ Second Amendment rights.
“Florida does not have carte blanche to restrict the speech of doctors and medical professionals on a certain subject without satisfying the demands of heightened scrutiny,” the majority opinion reads.
The opinion continues, via NPR:
As part of their medical practices, some doctors routinely ask patients about various potential health and safety risks, including household chemicals, drugs, alcohol, tobacco, swimming pools, and firearms. A number of leading medical organizations, and some of their members, believe that unsecured firearms in the home increase risks of injury, especially for minors and those suffering from depression or dementia.
In an effort to prevent and reduce firearm-related deaths and injuries, particularly to children, the American Medical Association encourages its members to inquire as to the presence of household firearms as a part of childproofing the home and to educate patients to the dangers of firearms to children.
The Florida law was passed in 2011, and targeted pediatricians who asked parents about firearms in the home. Under its provisions, doctors can be punished with a fine of up to $10,000, and can lose their medical licenses for discussing guns with patients.
The court upheld portions of the law that explicitly block doctors from discriminating against patients who own guns. For example, the act reads: “A health care provider or health care facility may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.”
The NRA has weighed in on the legal battle, according to the Atlanta Journal-Constitution. In 2015, the NRA’s Institute for Legislative Action sent lawmakers a letter on the matter.
“Physicians interrogating and lecturing parents and children about guns is not about gun safety,” the letter reads. “It is a political agenda to ban guns. Parents do not take their children to physicians for a political lecture against the ownership of firearms, they go there for medical care.”
One of the judges in the majority, William Pryor, whom President Donald Trump had mentioned as a possible Supreme Court nominee, addressed the Second Amendment argument in a separate statement of his own.
“I write separately to reiterate that our decision is about the First Amendment, not the Second. The Second Amendment ‘guarantee[s] the individual right to possess and carry weapons,'” he wrote, according to NPR. “[B]ut the profound importance of the Second Amendment does not give the government license to violate the right to free speech under the First Amendment.”
He went on to connect his position against the FOPA to protecting religious liberty:
Think of everything the government might seek to ban between doctor and patient as supposedly “irrelevant” to the practice of medicine. Without the protection of free speech, the government might seek to ban discussion of religion between doctor and patient. The state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional.
The Florida governor, according to WLRN, is reviewing the court’s decision.