Battle rages over law limiting doctors’ questions about guns

MIAMI — As a pediatrician, Dr. Judith Schaechter can ask parents of her patients all sorts of questions regarding their safety and well-being: what the child eats, whether there’s a backyard pool and whether the child gets enough sleep.

Yet the question of whether there is a gun in the home is generally off limits. A Florida law bans routine gun questions even though eight children or teenagers are killed every day in the U.S. with guns, according the Centers for Disease Control and Prevention.

Doctors such as Schaechter believe a discussion about guns is essential to child safety.

“A doctor has to be able to ask,” said Schaechter, who is chair of the Department of Pediatrics at the University of Miami Miller School of Medicine. “We do this for so many issues. This is but one. Yet it is an extremely important one, for when we don’t discuss prevention, the results can be lethal.”

Schaechter is among thousands of physicians, medical organizations and other groups such as the American Civil Liberties Union that challenged the law, formally called the Firearm Owners Privacy Act, in a lawsuit known popularly as “Docs vs. Glocks.” The law, passed in 2011 amid strong support from the National Rifle Association, is the only one of its kind in the nation, although similar laws have been considered in 12 other states, according to the American Academy of Pediatrics.

The legal battle, which has raged since the law’s inception, is a clash between the First Amendment’s guarantee of free speech and the Second Amendment’s right to keep and bear arms, amid a national discussion about the role and availability of weapons across the U.S.

The lawsuit is now pending before the Atlanta-based 11th U.S. Circuit Court of Appeals following conflicting earlier rulings on its constitutionality — and the case could wind up in the U.S. Supreme Court.

Supporters in the Republican-controlled Florida Legislature and the NRA say the law became necessary when, in their view, doctors began overstepping their bounds in the examination room by pushing an anti-Second Amendment, anti-gun political agenda. The NRA cites several examples of doctors telling patients they’d have to find a new physician if they refused to answer questions about gun ownership or telling parents they should get rid of any guns in the home.

The law, supporters point out, permits doctors under a “good faith” provision to ask about firearms if the questions are deemed “relevant to the patient’s medical care or safety” or the safety of other people.

“These provisions target discrimination and harassment, not speech, and they do nothing to impair doctor-patient discussions of firearm safety,” NRA attorney Charles Cooper said in court papers. “Even if viewed as a speech regulation, the (law) is a reasonable regulation of speech incidental to the practice of medicine.”

The law also has some teeth: doctors who violate the law could face professional discipline, such as a fine, or even lose their medical licenses. The state Department of Health would investigate any complaints, although the law has never been enforced because it was blocked in 2012 by a Miami judge’s decision that found it an unconstitutional violation of free speech rights.

Since that decision by U.S. District Judge Marcia Cooke, the law has been entangled in an unusual web of appeals brought by Florida Attorney General Pam Bondi, a Republican.

The same panel of three 11th Circuit appeals judges has overruled Cooke on identical 2-1 votes — but in three separate opinions, each replacing the one before. Most recently, in December, the panel found that any free speech concerns were outweighed by Florida’s interest in preventing doctors from using their so-called “power disparity” over patients to chill exercise of their Second Amendment rights.

In other words, the three-judge panel found that doctors had a First Amendment right to talk to patients about guns but couldn’t use it most of the time, said attorney Doug Hallward-Driemeier, who represents the physicians and their allies.

The law, he said, “singles out doctors’ speech about guns for restriction because the government disagrees with their message. That is precisely what the First Amendment protects us against.”

After that December opinion, the full 11th Circuit Court of Appeals stepped in to take up the case, tossing out the decisions by its own three-judge panel. The court’s 11 judges in coming months will likely hold oral arguments, followed by a decision that could be appealed again to the U.S. Supreme Court, Hallward-Driemeier said.

Schaechter, the pediatrician, said she views concerns about Second Amendment violations as misguided. With a nation awash in guns — the nonpartisan Congressional Research Service pegged the number at 310 million guns in 2009 — it’s simple common sense for a doctor to question patients about them, she said.

“This isn’t about the Second Amendment. It’s about speaking up to save lives, and that’s my right and it’s my patients’ right to hear what I have to say,” she said. “I trust if they don’t want to answer my questions, they will tell me. So far, none of them have done so.”