Editor’s note: This post is part of a Health Affairs Blog Symposium on Health Law stemming from 4th Annual Health Law Year in P/Review conference hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Holly Fernandez Lynch wrote an introductory post in January 2016 and you can access a full list of symposium pieces here or by clicking on the “The Health Law Year in P/Review” tag at the bottom of any symposium post. You can also watch the video of the presentation on which this post is based.
On February 3, 2016 the full U.S. Court of Appeals for the 11th Circuit agreed to rehear the appeal in Wollschlaeger v. Florida, commonly known as the case of the “docs versus the glocks.” Wollschlaeger concerns a Florida law that bars physicians from routinely asking their patients whether they have guns or store them safely. In agreeing to rehear the appeal, the full court vacated a decision issued last December by a three-judge panel which had replaced two of its own prior opinions. Each of the panel’s three decisions upheld the law, and each raised serious questions about the ability of health professionals to provide their patients with relevant health information.
Public health professionals have long viewed gun safety as a major public health problem. Likewise, many physicians believe that good primary care includes questioning and counseling patients, especially those with children, about firearm safety, just as they talk to patients about seatbelts, cigarettes, and the need to exercise.
This view is reflected in an American Medical Association (AMA) policy which encourages members to: “(a) inquire as to the presence of household firearms as a part of childproofing the home; (b) educate patients to the dangers of firearms to children; (c) encourage patients to educate their children and neighbors as to the dangers of firearms; and (d) routinely remind patients to obtain firearm safety locks, to store firearms under lock and key, and to store ammunition separately from firearms …”
What these professional organizations and the advocates of a “public health approach” to gun violence could not have anticipated was that their efforts to approach gun safety as a health problem would open the door for increased regulation of health professionals. Yet that is exactly what happened in 2011 when Florida passed the Firearm Owners Privacy Act (FOPA) in response to complaints by some gun owners who were offended when physicians questioned them about gun ownership.
In brief, the act bars physicians from: 1) “enter[ing] any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others” 2) from making any inquiries or asking “questions concerning the ownership of a firearm or ammunition” unless the physician has a “good faith” belief that the information is “relevant to the patient’s medical care or safety, or the safety or others,” 3) discriminating against a patient on the basis of the patient’s exercise of his or her Second Amendment rights, and 4) “unnecessarily harassing a patient about firearm ownership.”
The Court’s First Two Decisions
Shortly after the law was signed by Governor Rick Scott, several physicians and physician associations in Florida filed suit in federal court arguing that FOPA violated their rights to free speech. In June 2011, the District Court agreed and issued a permanent injunction. The state appealed to the Eleventh Circuit. On July 25, 2014, a three-judge panel voted 2-1 to reverse the District Court’s decision.
This first decision, authored by Judge Tjoflat, emphasized the state’s traditional power to protect patients and concluded that First Amendment placed no limits on efforts by the state to regulate private speech uttered by physicians in the course of treating patients. Although this approach would appear to apply to any state law regulating what a physician says to a patient, the court emphasized that FOPA only bars physicians from asking about and recording in medical records information about gun ownership when such information is irrelevant to patient care.
However, the court also suggested that the state, rather than physicians or medical associations, could determine when gun inquiries are relevant. Seemingly, under this reasoning, a state could decide that counseling patients about smoking was outside the scope of medical practice and bar physicians from talking to their patients about the dangers of cigarettes.
After the court issued its decision, the plaintiffs sought review by the full circuit. While the motion was pending, the original panel replaced its opinion with another one. This one also emphasized the state’s interest in regulating the practice of medicine. However, rather than deciding that interest immunized the state law from any First Amendment review, the court now concluded that it simply reduced the level of First Amendment review from so-called strict scrutiny to the more lenient intermediate scrutiny standard, an approach that some other courts have used in reviewing laws regulating physician speech.
Under intermediate scrutiny, a state law is unconstitutional unless it directly advances a substantial state interest and is no more extensive than necessary to serve that interest. In recent years, many laws regulating speech, especially commercial speech, have failed intermediate scrutiny which generally requires that the state produce robust evidence of the need for the law. In Wollschlaeger, in contrast, the court was willing to rely on “common sense” to conclude that “restricting unnecessary inquiry eliciting such information directly advances the States’ substantial interest in regulating the medical profession to prevent harmful or ineffective medical care and safeguard patient privacy.”
After the court issued its second opinion, the plaintiffs once again sought review by the full circuit. Once again, before the full circuit ruled, the original panel pulled its opinion and issued yet another decision upholding FOPA.
The Third Decision
At first blush, the court’s third decision might be viewed as more favorable to physicians as this time the panel was willing to accept, at least for the purposes of argument, that FOPA was subject to strict scrutiny. On closer inspection, the third opinion may have been the most troubling.
Laws that regulate the content of truthful speech regarding lawful conduct almost always fail strict scrutiny, which requires the state to show that the laws are narrowly tailored to further a compelling state interest. The test is designed to be exceptionally rigorous to ensure the free flow of ideas.
In its third Wollschlaeger opinion, however, the panel reached the surprising conclusion that FOPA passed strict scrutiny on the theory that the Act was necessary to protect patients’ Second Amendment rights. As the court saw it, patients respect their physicians, and are especially apt to be persuaded by them. Hence, when physicians talk about guns, patients listen. This may “chill” patients’ exercise of their Second Amendment rights. In other words, because patients trust physicians, physician speech can be banned, at least with respect to guns.
It is easy to point out the many flaws with the panel’s analysis. For one thing, the Second Amendment right to bear arms does not imply a right not to hear evidence about the dangers posed by guns. If it did, most public health research relating to guns might violate the Second Amendment.
For another, the court’s theory that speech may be chilled precisely because it may be persuasive is contrary to bedrock First Amendment principles. If doctors can be gagged because patients believe them, then so, too, can medical journals, or anyone who has the public’s trust. A First Amendment jurisprudence that permits only discredited speakers is hard to fathom.
Finally, as in its second opinion, the third opinion reached its conclusion that FOPA is necessary to protect the identified compelling state interest (the Second Amendment) with only the thinnest of anecdotal evidence, and without any exploration of whether the state could achieve its aims in manners less intrusive upon speech. In effect, the court replaced rigorous review with overly lenient post hoc rationalizations and suppositions.
For physicians and other health professionals, the Eleventh Circuit’s February 3rd decision to vacate the panel’s decision should be heartening. Although the panel’s third opinion relied on the Second Amendment, and therefore could have been distinguished if states try to regulate physician speech relating to other issues, such as unsafe sex or even exercise, the court’s application of strict scrutiny and its insistence that physician speech can be regulated precisely because of its credibility suggests an Alice in Wonderland world in which those who know the most about a health problem may be the least able to speak on it.
Although it may be tempting to dismiss Wollshaegler v. Florida as a mere curiosity, the issues it raises are of broad importance. Both Missouri and Montana already have laws comparable to FOPA, and several other states have considered similar measures. And as of 2012, at least 4 states had laws barring physicians from talking to their patients about fracking. Other states compel physicians to make certain disclosures to women prior to their having an abortion. More and more it seems, state legislatures seek to prescribe what physicians can and cannot say to their patients. Whether that trend will continue may well depend on what happens next in the strange case of the docs versus the glocks.