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By Mary Anne Pazanowski
Dec. 16 — In its third opinion in the same case, a majority of a three-judge panel ruled Dec. 14 that a state law prohibiting doctors from asking patients about gun ownership is valid.
In earlier rulings, the U.S. Court of Appeals for the Eleventh Circuit held that the Florida Firearm Owners Privacy Act was a valid regulation of physicians' speech. It first said the law fell within the state's right to regulate licensed professionals (145 HCDR, 7/29/14). The second time the panel looked at the law, it upheld it under the First Amendment's intermediate scrutiny standard (146 HCDR, 7/30/15).
This time around, the panel applied the First Amendment's strict scrutiny standard and said the provision passed constitutional muster.
The physicians twice have sought en banc, or full court review, by the Eleventh Circuit, but have been preempted by the panel's decision on its own (known as sua sponte) to reconsider the issue.
The case is important because it defines the extent to which a state may regulate professional speech consistent with the First Amendment where an argument is made that the speech infringes on another constitutional right, in this case, the Second Amendment right to bear arms. At least 12 other states—Alabama, Kansas, Minnesota, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas and West Virginia—have considered adopting similar laws that preclude doctors from asking patients about gun ownership, although none has yet done so.
Major physician groups, like the American Medical Association, have supported the law's challengers.
An attorney for the physicians challenging the law, Douglas Hallward-Driemeier, of Ropes & Gray in Washington, told Bloomberg BNA that they again will seek review by the full Eleventh Circuit. This will be the third petition for en banc review. He said it is “quite likely” the court will grant the petition, since this is an issue “the court will want to take a look at.”
The “lengths” to which the panel went to justify its validation of the law “raise very serious concerns,” Hallward-Driemeier said. It's unlikely the court would have gone to the extent of issuing three successive opinions “in any other context.” Hallward-Driemeier said it looks like the panel reached the outcome it wanted, then went “in search of a justification” for it.
Anthony T. Caso, a professor at the Dale E. Fowler School of Law, Chapman University, and director of the Constitutional Jurisprudence Clinic in Orange, Calif., told Bloomberg BNA that the “court correctly noted that protecting patient privacy and citizens' fundamental Second Amendment rights to own firearms were compelling state interests that justified this restriction.” Caso was one of the authors of a friend-of-the-court brief filed by the Center for Constitutional Jurisprudence in support of the state.
He said the panel noted that “the law fits well within the traditional authority of the states to define and regulate the practice of medicine.”
The law at issue, codified at Fla. Stat. §§381.026, 456.072 and 790.338, “seeks to protect patient privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership.” It specifically precludes physicians from asking their patients (or their minor patients' parents) about whether they own firearms, absent a good-faith belief that the information would be relevant to the patients' medical care. The law also says that doctors may not record the patient's answer in his or her medical records. Another provision that turned out not be relevant here prohibits doctors from discriminating against or harassing a patient based on firearm ownership.
The court noted that the law doesn't prohibit a doctor from asking about or recording the fact of gun ownership when he or she believes that information is relevant to the patient's treatment, the patient's safety or the safety of others. A physician also isn't prohibited from speaking with a patient about firearms generally.
The plaintiffs, including three individual physicians and the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians, brought suit to enjoin Florida's enforcement of the law. They argued that the provision is a content-based restriction on physician speech that violates the First Amendment.
The U.S. District Court for the Southern District of Florida agreed with the physicians and issued an order enjoining the state's enforcement of the law (182 HCDR, 9/20/11).
Florida appealed that decision to the Eleventh Circuit, which overruled the lower court's holding.
In its first opinion, written by Judge Gerald B. Tjoflat and joined by Judge L. Scott Coogler, of the U.S. District Court for the Northern District of Alabama, sitting by designation, the Eleventh Circuit said the law was a valid regulation of professional conduct.
Judge Charles Reginald Wilson, in a lengthy dissent, said the law was “a gag order that prevents doctors from even asking the first question in a conversation about firearms.” He said the law “significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.” He would have found the law violated the First Amendment.
In its second opinion, issued by the same judges, the court focused more particularly on the First Amendment. It noted that some physician speech, including statements made by physicians outside of the physician-patient relationship—a speech at an anti-gun rally, for example—would be protected by the First Amendment at the highest level. Professional speech—i.e., the type of speech that occurs when a doctor is counseling a patient one-on-one—was entitled to a lesser degree of review, it said. Although the court recognized that the Supreme Court has never spoken definitively about the level of review to be accorded to restrictions on professional speech, it has held that restrictions on commercial speech are subject to a lower, or intermediate, standard of review.
The third time around, the court accepted, but didn't decide, that the Florida restrictions were subject to the highest level of review, known as strict scrutiny. Under this standard, the state had to show that it had a “compelling interest” that justified the restrictions and that the restrictions were narrowly tailored to further that compelling interest.
The Eleventh Circuit panel concluded that the Firearm Owners Privacy Act satisfied that test. Again, Wilson disagreed, saying he continued to believe the law doesn't survive First Amendment scrutiny.
The state asserted four compelling interests that prompted it to adopt the law: protection of its citizens' Second Amendment right to keep and bear arms; protection of patient privacy; elimination of barriers to health-care access; and the prevention of discrimination against and harassment of firearm owners. The court said the first two constituted compelling interests justifying the regulation.
It is undisputed, the court said, that “the Second Amendment right to keep and bear arms is a fundamental right.” Further, ensuring “the full guarantee of fundamental rights certainly can be a compelling interest.”
The Firearm Owners Privacy Act protects that right “by protecting patients from irrelevant questioning about guns that could dissuade them from exercising their constitutionally guaranteed rights, questions that a patient may feel they cannot refuse to answer, given the significant imbalance of power between patient and doctor behind the closed doors of the examination room,” the court said.
A patient's right to privacy regarding his or her status as a gun owner, moreover, “is sacrosanct,” the court said. “The rights at issue here are indisputably more valued and cherished by American society than” many other rights. Keeping information about gun ownership out of patient records, and thereby protecting the patient's privacy rights in that information, is more important than ever, given that hacking and privacy breaches have become “increasingly common,” the court said.
The court also said the law was narrowly tailored to further the state's compelling interests.
The plaintiffs argued that the law didn't serve the state's interests in protecting Second Amendment rights because the speech in question didn't interfere with those rights. The court disagreed, saying the argument “could not be farther off base.”
“It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun.” While the doctor's statement may not stop the patient from owning a gun, it may chill the patient's exercise of his or her rights—“and that is sufficient,” the court said.
Additionally, the doctors said the law wasn't narrowly tailored because it didn't protect patients from speech on other sensitive topics. The court rejected this argument, saying it had “no trouble believing” that those other sensitive topics might be more relevant to a patient's treatment than the fact of gun ownership. Moreover, the fact that the law doesn't prohibit doctors from asking about other sensitive topics illustrates that it is narrowly tailored to serve the state's compelling interest in protecting patient privacy in the exercise of Second Amendment rights, the court said.
The court also rejected the plaintiffs' argument that the law wasn't narrowly tailored because the problem the Legislature sought to cure was fully protected by a provision that allows patients to decline to answer questions regarding their firearm ownership. Once again, the court cited the “imbalance between patient and doctor,” saying that patients might be too intimidated to refuse to answer the question.
The court pointed to the fact that the law allows physicians to ask about gun ownership if they believe it is relevant as further evidence of its narrow tailoring.
Hallward-Driemeier told Bloomberg BNA that the court's “ever-shifting grounds” for its decision “illustrate a more fundamental problem”—the Firearm Owners Privacy Act is “unconstitutional on its face.”
From a procedural viewpoint, the court's decision was wrong because Florida “never seriously argued” that the law satisfied strict scrutiny, the attorney said. The grounds on which the court relied weren't in the record. Instead, it engaged in a “post-hoc rationalization,” he said.
Hallward-Driemeier called “preposterous” the court's reasoning that the physician's First Amendment speech rights should take a back seat to the patient's Second Amendment right to keep and bear arms. Further, he said, there was no justification for the court's conclusion that the state has a compelling interest in ensuring that patients don't have to answer questions about gun ownership when Florida law permits patients to decline to answer such questions. That “makes no sense,” he said.
The Florida law wouldn't survive “any kind of considered First Amendment review,” Hallward-Driemeier told Bloomberg BNA.
Caso, on the other hand, told Bloomberg BNA the court correctly decided the case. The state has a compelling interest in protecting its citizens' Second Amendment rights that justified this restriction, he said.
“The law only prohibits the physician from inquiring into firearms ownership, or noting ownership on the patient's medical record, when there is no medical reason to do so (including the safety of the patient or the safety of others),” Caso said. Doctors “are free to raise a First Amendment defense if any action is brought against them for violating the law,” he added.
Hallward-Driemeier told Bloomberg BNA that the injunction against the law's enforcement entered by the district court is still in effect and will remain that way until the Eleventh Circuit issues a final mandate, either once the court denies en banc review or, if it grants review, after the full court reaches a decision.
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