Posted on Thursday, July 31st, 2014
On July 25, 2014, in a surprising and disappointing decision, a three-judge panel of the 11th Circuit upheld a Florida state law that limits doctors’ ability to speak to their patients about gun safety. Dubbed the “gag rule,” this law prevents doctors from even asking patients about gun ownership as part of routine care to prevent the potentially devastating effects of gun violence. The decision reverses a U.S. District Court’s 2012 decision, which invalidated the law on the grounds that it violates physicians’ First Amendment rights and “chills practitioners’ speech in a way that impairs the provision of medical care and may ultimately harm the patient.”
Gun violence is a public health epidemic in the U.S. and of great concern to health care providers. Over 7,000 children are hospitalized or killed due to gun violence every year. Extensive research has shown that the presence of a gun in a home makes its residents less safe. A national study of those who died from accidental shootings showed that victims were more than three times more likely to have had a gun in their home as those in the control group. The danger of unintentional shootings is especially grave for homes with children. Eighty-nine percent of unintentional shooting deaths of children occur in the home—and most of these deaths occur when children are handling a loaded gun in their parents’ absence.
Doctors can play an important role in reducing childhood death and injury from guns. According to one recent study, 64% of individuals who received verbal firearm storage safety counseling from their doctors improved their gun safety practices. Numerous medical organizations, including the American Medical Association, the American Academy of Family Physicians, the American College of Physicians, and the American Academy of Pediatrics (AAP), believe that gun violence can be lessened by providing patients and parents with information about gun safety. The AAP recommends that conversations about guns and gun safety start during a prenatal visit and be repeated every year as part of anticipatory guidance. Indeed, doctors routinely talk to their patients about a range of public health hazards in the home, including backyard swimming pools, tobacco, and household cleaners and toxins.
Yet under Florida’s gag rule, health care providers may only question patients about their firearms ownership when they believe such questions are “relevant” to each patient’s individual circumstances. The Circuit Court determined that doctors must decide on a “case-by-case basis” whether a conversation about gun safety is relevant. A doctor’s general belief that firearms are always relevant to preventative health care and routine questioning about gun safety could expose the physician to severe disciplinary action.
In reinstating the law, the Circuit Court found that the gag rule is a legitimate regulation of professional conduct that imposes only incidental burdens on speech and sufficiently advances the state’s interest in protecting patients’ privacy and Second Amendment rights. In his lengthy dissent, Judge Wilson agreed that the state’s “asserted interests in protecting the rights of firearm owners, including their privacy rights, their rights to be free from harassment and discrimination, and their ability to access medical care, are incredibly important.” However, the state “has offered no evidence to show that those rights are under threat, nor is there evidence…suggesting that the [law] will either directly or materially advance those interests.” If anything, “the record and common sense lead inexorably to the conclusion that children will suffer fewer firearm related injuries if they—and their parents—know more about firearm safety.”
Thus, Florida’s gag rule significantly limits doctors’ ability to speak to their patients in ways that could protect public health and save children’s lives. Judge Wilson goes on to suggest that “the poor fit between what the Act actually does and the interests it purportedly serves belies Florida’s true purpose in passing this Act: silencing doctors’ disfavored message about firearm safety.” As argued in the dissent, this law amounts to a content-based restriction and is a clear violation of doctors’ free speech rights.
In an effort to have the three-judge panel decision reversed, the physicians challenging the law will seek an en banc review from the 11th Circuit.
For more information, read the Law Center’s page on Gun Safety & Public Health and the American Bar Association’s resolution against “medical gag laws.” For an analysis of patients’ First Amendment rights to receive information from their doctors on firearm safety, read the Law Center’s amicus brief on this case.
 Wollschlaeger v. Florida, No. 12-14009 (11th Cir. Jul. 25, 2014).
 Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1267 (S.D. Fla., 2012).
 Dennis Thompson, 20 U.S. Kids Hospitalized Each Day for Gun Injuries, WebMD (Jan. 27, 2014), available at http://www.webmd.com/parenting/news/20140127/twenty-us-kids-hospitalized-each-day-for-gun-injuries-study.
 Douglas J. Wiebe, Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis & Prevention 711, 713-14 (2003).
 Guohua Li et al., Factors Associated with the Intent of Firearm-Related Injuries in Pediatric Trauma Patients, 150 Archives Of Pediatric & Adolescent Med. 1160, 1162 (1996).
 Teresa L. Albright & Sandra K. Burge, Improving Firearm Storage Habits: Impact of Brief Office Counseling by Family Physicians, 16 J. of the Am. Bd. of Family Practice 40, 40 (2003).