JURIST Guest Columnist James G. Hodge, Jr. of Sandra Day O’Connor College of Law at Arizona State University discusses the significance of the outcome of Wollschlaeger II and its impact on the public’s health…

Without question significant access to guns and ammunition implicates major public health risks. There were 33,636 gun-related deaths and tens of thousands more injuries in the US in 2013, far more than in other industrialized countries whose citizens lack similar ease of access to guns. Even though the Second Amendment of the US Constitution firmly protects the rights of Americans to own and use guns, all is not lost from the public health perspective. Firearm deaths and injuries can be prevented through efficacious gun safety and control laws and practical interventions (e.g., locking guns while not in use, keeping guns unloaded and separating ammunition). These and other measures can lower gun-related tragedies, especially among minors. Of course, not everyone is aware or convinced of the need for these common sense interventions.

For years, the American Medical Association and other medical and public health associations have strongly counseled doctors and other health care workers (HCWs) to engage patients about the risk of gun-related injuries and safety measures. However, in Wollschlaeger v. Governor of Florida [PDF] (Wollschlaeger II), decided on July 28, 2015, the US Court of Appeals for the Eleventh Circuit upheld (for the second time) a Florida law that restricts HCWs in their ability to talk to their patients truthfully about how to reduce gun-related risks of death and injury. In doing so, the court rejects doctors’ First Amendment rights to speak to patients about firearms in favor of the need to protect patients’ privacy rights. Absent further appeal, Wollschlaeger II estops Florida HCWs from dispensing meaningful information on gun safety to many patients.

The Firearm Owners Privacy Act

In 2011 Florida passed the Firearm Owners Privacy Act (FOPA) to prevent HCWs from raising, recording and discussing politically-sensitive, gun-related safety and health risks with patients. FOPA was passed after legislators became aware of several anecdotal accounts of (1) doctors discriminating against patients during medical visits for failing to answer gun-related questions or (2) patients who just did not want to listen to doctors’ guidance on gun safety. FOPA includes four primary sections:

1. Inquiry: HCWs “should refrain” from asking about whether patients (or their families) own firearms absent a good faith belief that such information is “relevant” to the patient’s or others’ health or safety;

2. Record-keeping: HCWs and facilities may not “intentionally enter” data about a patient’s firearm ownership into their medical records if they know the data are “not relevant to the patient’s medical care or safety, or the safety of others;”

3. Discrimination: HCWs “may not discriminate” against a patient on the basis of firearm ownership; and

4. Harassment: HCWs must avoid “unnecessarily [harassing]” a patient about gun ownership.

Violations can lead to disciplinary actions against HCWs including fines, practice restrictions, return of medical fees, probation and license suspension or revocation.

Within days of FOPA’s enactment, a group of Florida doctors (and others) filed suit in federal district court challenging its provisions on multiple, constitutional grounds. The court enjoined its enforcement initially on September 14, 2011, and again on June 29, 2012, when it ruled that the Act offended free speech and due process principles under the First and Fourteenth Amendments. The state appealed to the Eleventh Circuit Court of Appeals in Atlanta which overturned the lower court on July 25, 2014. The court largely dispensed with any significant freedom of speech analyses, finding instead that FOPA regulated medical professionals’ conduct (i.e., with only incidental effects on protected speech). This decision was instantly appealed, reheard by the same court and resulted in the most recent decision, Wollschlaeger II [PDF], on July 28, 2015. The court’s subsequent decision relies on alternative legal theories more than its first, but concludes largely the same way: protecting gun owners’ privacy prevails over HCWs’ free speech rights.

Wollschlaeger II

Doctors and other plaintiffs contested FOPA’s restrictions on two primary basis. First, they contended that each of the Act’s provisions constitutes impermissible and overbroad content-based infringements of their free speech rights via the First Amendment. They also challenged the vagueness of the provisions under the Fourteenth Amendment substantive due process. As to this latter claim, the court’s assessment of the record-keeping provision of the Act is illustrative. According to the court, under FOPA

“a physician may not record a patient’s firearm-ownership status unless the physician believes that—because of some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies—[this status] pertains to the patient’s medical care or safety, or the safety of others.”

Even though FOPA never clarifies what “relevant” means, Judges Gerald Bard Tjoflat and L. Scott Coogler for the majority intimate that it refers to “a specific health threat facing a specific patient.” Plaintiffs further question how HCWs are actually supposed to assess relevancy to patients’ health or safety, but the court dismisses their funding the statute’s “plain meaning” sufficiently clear.

Tying in their First Amendment claims to the due process angle, the plaintiffs point out that the mere need to establish relevancy to disseminate gun-related information has a “chilling effect” on HCWs’ assessment of patients. In dissent Judge Charles R. Wilson labels this provision of FOPA as “classic viewpoint discrimination.” The majority, however, sees it differently. The court remarks correctly that not all speech-related laws are protected via the First Amendment. In this sense the majority is correct. Government routinely and lawfully restricts what doctors and other licensed professionals can say. Patient confidentiality laws may limit what doctors say about their patients to others. Commercial speech laws may prohibit non-board certified doctors from advertising they possess specific skills.

The main objective, concludes the court, “is to determine whether any provision of [FOPA] crosses the boundary between a law regulating professional conduct with an incidental effect on speech and a law regulating protected speech,” subject to First Amendment scrutiny. This rationale, however, contravenes recent US Supreme Court’s jurisprudence. In Sorrell v. IMS Health Inc. (2011), the court struck down a Vermont state law prohibiting drug companies from reviewing physician prescription practices on the basis that even commercial speech requires at least heightened scrutiny whenever government regulates content. More recently in Reed v. Town of Gilbert (2015), the court invalidated an Arizona city’s attempt to ban specific political messages contained on church-sponsored signage. It clarified that virtually any content regulation is subject to strict scrutiny under the First Amendment. Not only did the Eleventh Circuit fail to apply strict scrutiny to FOPA’s content-based speech restrictions, its expressed support and bases for upholding the Act’s provisions invert government public health powers as discussed below.

Curtailing Public Health Messaging

The majority opinion distinguishes between HCWs’ speech in professional and relationship settings. When doctors speak professionally, such as at a medical conference, government’s ability to regulate their messages is at its lowest. When they speak to individuals pursuant to a doctor-patient relationship, government’s interests are more substantial. So long as government properly balances its interests with free speech principles, concluded the court, it can control the content of HCW’s messages to protect patients and the public’s health. The majority hones in on the “long recognized authority—duty, even—of states to regulate the practice of professions” as “part of their [police] power to protect the public health, safety, and other valid interests …” Correspondingly, it holds that state licensing of HCWs includes the ability to limit their conduct, including related speech.

What the court muddles, however, is that the main justification for HCWs’ messaging on firearm violence prevention and safety, especially related to minors in households with gun-owning adults, is also implicit within the police powers. It seemingly ignores the fact that while doctors’s conduct can be regulated via state-based police powers, these same powers support dissemination of essential public health messages protected by the First Amendment. Balancing the rights of doctors to counsel patients on gun safety with the privacy interests of select patients, the court finds that disseminating truthful, publicly-available, and empirically-proven data about the health and safety risks of firearms is somehow “outside the bounds of good medical care.” As a result not only does the Eleventh Circuit look past Supreme Court freedom of speech jurisprudence, it misconstrues the foundation for HCWs to share such information with patients to protect their health and the public’s safety.

To the degree FOPA constrains public health messages between HCWs and patients, it thwarts legitimate and lawful public health objectives to prevent firearm deaths and injuries in Florida. Absent further appeals, Wollschlaeger II carries significant negative ramifications especially in Florida whose rate of gun deaths was nearly 18 percent higher than the national average in 2013. Upholding government restrictions of content-based gun safety messages by Florida HCWs based on medical licensure is counter-intuitive. Doctors should always be free to communicate truthful, non-misleading health and safety messages in the furtherance of protecting patient’s and public’s health.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Public Health Law and Policy Program at the Sandra Day O’Connor College of Law at Arizona State University.

The author acknowledges the following individuals for their research and editing assistance: Sara Rosenbaum, JD, Professor at the Milken Institute School of Public Health, George Washington University, and Sarah Wetter and Matt Saria with the Public Health Law and Policy Program, Sandra Day O’Connor College of Law, ASU.

Suggested citation: James G. Hodge, Doctors, Patients, Guns and the Public’s Health: Wollschlaeger II, JURIST – Academic Commentary, Sept. 28, 2015, http://jurist.org/academic/2015/09/james-hodge-public-health.php.