October 01, 2011

Florida Law Restricting Physicians from Counseling Patients about Firearms Enjoined

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

A federal court has granted a preliminary injunction enjoining Florida from enforcing a new law that prevents physicians from asking patients about firearm ownership and counseling them about firearm safety.

Wollschlaeger v. Farmer, 2011 WL 4080053 (S.D. Fla.).

Physicians and the Florida chapters of three national medical organizations challenged the constitutionality of Florida’s Firearm Owner’s Privacy Act. They moved for a preliminary injunction enjoining enforcement of the act.
Signed into law in June 2011, the act restricts licensed health care providers and facilities from obtaining and sharing information from patients about firearms in the home. Under the law, health care providers may not: intentionally record any information a patient discloses about firearm ownership in the patient’s medical record; ask patients whether they own a firearm unless there is a good faith belief that the information relates to the patient’s health or safety or that of others; or discriminate against/harass a patient for owning firearms.

The act imposes disciplinary action for violating these provisions.
 Plaintiffs stressed that they routinely ask and advise patients about many potential health and safety risks, including firearms. They cited professional guidelines that encourage physicians to counsel patients on prevention of injuries, particularly firearms safety. Through such questioning and advice, physicians play an important role in preventing firearm-related injuries and deaths.

In their complaint seeking a preliminary injunction, plaintiffs claimed the act violated the First and Fourteenth Amendments of the U.S. Constitution.
The United States District Court for the Southern District of Florida granted the preliminary injunction. The court found plaintiffs had standing to pursue their claim and that they were likely were likely to succeed on the merits.

The court found the act restricts health providers’ freedom of speech by prohibiting them from discussing subjects with patients and forcing them to censor themselves out of concern that a patient may misinterpret their guidance as harassment.

The court acknowledged that the First Amendment does not prohibit restrictions that regulate professional speech or conduct that only place minor burdens on speech. However, it stressed that laws restricting professional speech or occupational conduct generally aim to regulate the access or practice of a profession, not limit or censor private, constitutionally protected speech on a specific subject.

The court also found the law did not constitute the least restrictive means to further a compelling state interest. The court found little evidence to find that protecting patients from questions about firearms; assuring privacy of information about owning firearms; or blocking health providers from harassing or discriminating against a patient based on owning a firearm were compelling state interests.

Even if the state’s interests were compelling, the court found the law was not the least restrictive means to accomplish them. Instead of the law’s recordkeeping and inquiry restrictions, plaintiffs argued a less restrictive approach would be to let patients choose not to answer questions about owning firearms. Health providers could also refrain from entering information about owning firearms in a patient’s medical record when the patient declined answering. The court found that giving patients the decision-making authority was less restrictive than infringing on health providers’ speech.

Regarding the act’s antiharassment and antidiscrimination provisions, the court agreed with plaintiffs’ argument that a less restrictive alternative would be to target only offensive behavior or delivery of speech without considering the subject. It found the state had unnecessarily singled out harassing or discriminating conduct relating to messages about firearm safety. A less-restrictive law that would have the same effect would restrict harassment and discrimination without regard to the subject.

The court found the plaintiffs had met the remaining factors required for an injunction. The loss of their First Amendment freedoms had resulted in irreparable injury, the threatened injury outweighed the damage that an injunction might cause, and an injunction would be in the public interest.

Editor’s Note: A press release by the American Academy of Pediatrics in response to the decision notes: “Pediatricians are often the first medical professionals to identify children, teenagers, and young adults with depression or other mental health issues, as well as those vulnerable to abuse. The presence of a firearm in a home increases the risk of suicide even among those without a previous psychiatric diagnosis. The increased risk of suicide is particularly striking for younger people in homes where guns are stored either loaded or unlocked.”