DOCS VS. GLOCKS:

PHYSICIANS, FIREARMS,

FREE SPEECH, AND THE

REGULATION OF PUBLIC

HEALTH

Wendy E. Parmet

Northeastern University School of Law

GUNS AND PUBLIC HEALTH 2013: At least 100 children 14 and under died from

unintentional shootings.

Each accidental gun fatality 13 treated in emergency rooms for accidental shootings

1990 – 2005: Firearms were the most common weapon used in intimate partner homicides.

1994: The mean medical cost of $17,000 per gun injury produced $2.3 billion in lifetime medical costs with taxpayers paying $1.1 billion.

2010: With over 38,000 suicides in America, more were committed with a firearm than all other methods combined.

A PUBLIC HEALTH APPROACH TO

GUN VIOLENCE Increase research

Apply a risk reduction strategy to make firearms less dangerous

Integrate gun safety into primary care/prevention:

Ask patients about firearms as part of “childproofing”;

Educate patients and encourage education of children about

firearms;

Routinely remind patients to use firearm locks, store firearms under

“lock and key,” and to store ammunition separately from firearms.

THE PUBLIC HEALTH PARADOX Does the state’s power to regulate public health

enable it to ban/block public health efforts aimed

relating to gun safety?

Pushback –

Dickey Amendment

ACA ban on asking about guns for wellness checks

Can states use their public health powers to preclude adopting

a public health approach?

FLORIDA FIREARM OWNERS’ PRIVACY ACT

(“FOPA”) 1. The inquiry provision: directing doctors to refrain

from making irrelevant written or oral inquiries about gun ownership

2. The record-keeping provision: prohibiting doctors from intentionally entering irrelevant gun ownership information in a patient’s medical records

3. The harassment provision: directing doctors to refrain from unnecessarily harassing a patient about gun ownership during examinations

4. The discrimination provision: prohibiting discrimination against a patient based solely on the patient’s gun ownership

WOLLSCHLAEGER V. FLORDIA

Claims:

First Amendment

o Void for Vagueness

o Overbreadth

Injunction Issued by Dist.

Court, 880 F. Supp.2d 1251 (S.D. Fla. 2012)

DEFINING RELEVANCE FOPA bans only “irrelevant” gun talk but

By requiring individualized determination as to relevance, FOPA rejects a public health approach to guns.

Relevance/Irrelevance distinction is utilized to prohibit necessary dialogue for the determination of individualized needs.

THE STATE DECIDES WHAT’S “PUBLIC

HEALTH/GOOD MEDICAL CARE”

“To define the standards of

good medical practice and

provide for administrative

enforcement of those

standards is well-within the

State’s long-established

authority to regulate the

professions.” Wollschlaeger I.

“You might just as well say…that ‘I see what I eat’ is the same thing as ‘I eat what I see’!...

…You might just as well say…that ‘I breathe when I sleep’ is the same thing as ‘I sleep when I breathe’!” Alice in Wonderland

WOLLSCHLAEGER: EVOLVING

STANDARDS

Unprotected

Professional Speech Strict Scrutiny

July 25, 2014:

760 F.3d 1195

(11th Cir.) July 28, 2015:

(sua sponte),

797 F.3d 859

(11th Cir.)

December 14,

2015: (sua

sponte) , __ F.3d

__ (11th Cir.)

Intermediate Scrutiny

Petition for

rehearing en

banc

Petition for

rehearing en

banc

Petition for

rehearing en

banc

ROUND 1: IT’S NOT SPEECH

“Any speech that the Act reaches takes place entirely

within the confines of the physician-patient relationship …

and so is entirely incidental to the Act’s regulation of

physicians’ professional conduct.”

Hence FOPA is subject to the rational basis test.

ROUND 2: MAYBE SPEECH; BUT

NOT FULLY PROTECTED

ROUND 2: FOPA SURVIVES

INTERMEDIATE SCRUTINY*

“ ‘Simple common sense’

furnishes ample support for

the legislature’s decision.”

*Did not apply to discrimination provision

ROUND 3: STRICT SCRUTINY,

Content-based regulations of MD speech require either intermediate or strict scrutiny*

FOPA is narrowly tailored to further the compelling state interest of protecting 2nd Amendment rights.

*Did not apply to discrimination provision

SECOND AMENDMENT “CHILL”

MD speech is especially persuasive

Persuasive speech about guns chills gun

rights!

Hence FOPA survives strict scrutiny

Does this mean the more credible the

source, the greater the state’s ability to

suppress speech?

WAS FOPA NARROWLY

TAILORED

There was NO evidence that physician speech interfered anyone’s access to firearms.

There was no evidence that the state had considered any less restrictive alternative.

“The majority’s latest opinion is its most dangerous. It represents the first time, to plaintiffs’ knowledge, that any court has upheld under strict scrutiny a statute restricting truthful, non-coercive speech about lawful conduct because the listener might find the speech persuasive.” Petition for Rehearing en banc, Jan. 4, 2016.

IMPLICATIONS FOR…

The public health approach to gun violence?

The government’s ability to regulate physician speech?

Similar laws in Montana and Missouri

Abortion/informed consent cases

Conversion therapy cases

Fracking cases