(Reuters) - It is part of my job as a physician to ask patients about behaviors that may affect their health. Examples are smoking, drinking and wearing bicycle helmets.
But if I were practicing in Florida, I might be legally restrained from asking whether they own a gun and, if so, whether it is stored safely. In addition, unlike, say, an embarrassing medical problem, any information regarding gun ownership cannot be entered into the patient's medical record. This law, like recent attempts to block women's access to abortion clinics in Texas, represents misappropriation and misuse of health concerns to advance other political agendas.
In an ongoing case involving a challenge to this law, patient health, the right to bear arms, and free speech crash into each other
The conflict began in June 2011, when Florida Governor Rick Scott signed the Firearm Owners' Privacy Act, which prohibits healthcare providers from inquiring about gun ownership.
Shortly after Scott signed the bill into law, a group of medical professionals filed suit. In Wollschlaeger v. Governor of Florida, known informally as "Docs vs. Glocks," they alleged that the act violated their right to free speech.
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First the case went to the U.S. District Court for the Southern District of Florida, where a judge agreed with the doctors and said the law was a violation of their First Amendment rights. She issued an injunction banning application of the law.
The state of Florida appealed, and a three judge panel in the U.S. Court of Appeals for the 11th Circuit reversed the decision of the District Court and upheld the law. (The NRA filed a friend of the court brief stating that the act protected patient privacy and exercise of Second Amendment rights, saying that it "exhorts doctors to stick to practicing medicine when examining patients, rather than pushing their own political agendas.")
The case was then re-appealed by the plaintiffs and went to the entire 11th Circuit Court, which heard oral arguments in June and has not yet made a ruling.
The decisions of the Florida Court of Appeals thus far reflect a rather disturbing ignorance of what doctors actually do. Medicine, particularly primary care medicine, is more than just treatment. As Benjamin Franklin wrote, "An ounce of prevention is worth a pound of cure." Preventive medicine is designed to keep patients healthy and out of the doctor's office, and is central to the primary care practice. It includes discussions of pool safety, childproofing, vaccinating or keeping a gun unloaded and in a locked place that a child can't access. Patient privacy is well protected by HIPPA and doctor-patient confidentiality laws.
The court demeaned patients by writing that "When a patient enters a physician's examination room, the patient is in a position of relative powerlessness." Patients are increasingly well-informed via the internet and often come into the office with a list of questions about everything from vaccines to Zika. They are certainly capable of refusing to answer a question or dismissing a doctor they dislike.
As a physician, the real issue for me is health, and this is where the recent Supreme Court decision in the case of Whole Woman's Health v. Hellerstedt is relevant. In 2013 the Texas legislature passed a bill stating that any physician performing abortions must be affiliated with a hospital within 30 miles, and clinics performing abortions must have facilities at least equivalent to those of an ambulatory surgery center.
The State of Texas maintained that interests in patient health outweighed the fact that many hospitals in Texas and elsewhere find ways to avoid affiliating themselves with doctors who perform abortions, that clinic requirements were unduly stringent and costly relative to those for other more invasive procedures, and that these regulations would result in closure of 75 percent of the abortion clinics in their state.
The Supreme Court ruled that the Texas law created undue burdens for women seeking abortions and did not sufficiently demonstrate the "medical burdens" on patients caused by clinic quality or hospital affiliations. Unlike the Florida Appeals Court, the Supreme Court put the patients first.
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The emphasis on health benefits over political gerrymandering should be applied in Florida. In 2015, at least 278 children accidentally shot themselves or someone else with an improperly stored gun. One-tenth of all deaths among children age 5 to 14 years are due to firearms and 3 to 4 times as many children suffer non-fatal gunshot injuries. Furthermore, a recent survey reported that 39 percent of children whose parents thought they had successfully hidden the gun actually knew where it was.
Other non-pediatric populations, such as those suffering from depression or dementia, are clear examples of cases where questions about gun ownership are an important part of good medical care.
In all fairness, the Florida law does allow a doctor who "in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others" to ask about gun ownership. Since the American Academy of Pediatrics recommends that doctors inquire about gun ownership and safe storage, one might think that pediatricians would be exempt from prosecution for asking about these topics. However, if the injunction is lifted, inquiring doctors may face penalties including substantial fines and loss of their licenses to practice medicine.
In this instance, the Florida judiciary seems indifferent to the health of the state's children, despite the fact that 54 percent of households in the South self-report owning guns, according to a 2012 Gallup poll. The primary legislative and judicial concern seems to be to "protect" Floridians from an inconvenient truth (guns accidentally kill people) that might lead them to question their safety practices or the wisdom of keeping guns in their homes.
In the Texas case, the Supreme Court prevented the Machiavellian manipulation of healthcare regulations by pro-life politicians. In Florida, the Court of Appeals has so far sacrificed well-established standards of good healthcare to service their pro-gun views.
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By Michael Rosenbaum
Dr. Michael Rosenbaum is a Professor of Pediatrics and Medicine at the Columbia University Medical Center in New York City and is also a practicing pediatrician and a recent of the Columbia University Op-Ed Public Voices Program. The opinions expressed are his own.
