The "physician gun gag" or "Glocks vs. docs" bill was signed into law in 2011 and has been in court ever since. Enforcement is in abeyance.
For a third time, a three-judge federal appeals panel has upheld the constitutionality of a Florida law that imposes guidelines and restrictions on physicians who talk about firearms hazards with patients.
The "physician gun gag" or "Glocks vs. docs" bill was signed into law by Florida Gov. Rick Scott in 2011. However, it has never been enforced. U.S. District Judge Marcia Cooke in Miami slapped an injunction against the law after ruling that the National Rifle Association-sponsored law was an unconstitutional infringement upon physicians' First Amendment rights.
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Douglas Hallward-Driemeier |
The State of Florida appealed the ruling to the 11th Circuit Court of Appeals in 2012, where a three-judge panel has issued three separate 2-1 rulings upholding the law, each time vacating the two-judge majority's earlier opinion after considering challenges from three physicians, along with the Florida chapters of the American Academy of Pediatrics, the American College of Physicians, and the American Academy of Family Physicians.
In the Dec. 14 ruling, Judges Gerald Bard Tjoflat and L. Scott Coogler wrote that the law "codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care—especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearms owners."
In dissent, Judge Charles Wilson said the law "does not survive First Amendment scrutiny. However, I have already written two dissents to this effect, and the plaintiffs have sought en banc review. Accordingly, I decline to pen another dissent responding to the Majority's evolving rationale."
The physicians' attorney, Douglas Hallward-Driemeier, with Boston-based Ropes & Gray LLP, says they've been trying to get the case heard en banc by the entire 11th Circuit, but that each time the case is corralled by the same three-judge panel, which each time upholds the law on a 2-1 majority.
"A year-and-a-half ago, the panel in a divided opinion overturned Judge Cook's injunction holding the law unconstitutional. In that opinion, the majority held that doctors' speech to their patients was not entitled to any First Amendment protections," Hallward-Driemeier says.
"We sought a rehearing en banc, and our petition explained that the opinion was inconsistent with controlling Supreme Court precedent. A year later, the majority of two vacated their original opinion and substituted a new opinion that said the doctors' speech was entitled to intermediate scrutiny or protection under the First Amendment and that the law satisfied that level of scrutiny."
Media inquiries submitted this week by HealthLeaders Media to the National Rifle Association's public relations office received no response.
Hallward-Driemeier says the "ever-shifting rationale" used by the two-judge majority exposes the underlying problem with the law, "which is that it is unconstitutional."
"The suggestion this time around that the statute satisfies strict scrutiny because it is necessary to protect Florida citizens' Second Amendment right to own guns is preposterous," he says. "We wouldn't think in any other context that someone's First Amendment rights might be restricted because they might persuade someone with their speech to forgo conduct that would be protected under the constitution. The suggestions that that is a compelling state interest here is certainly unprecedented and inconsistent with other decisions, including decisions that protect, for example, the right to abortions."
Hallward-Driemeier says the Florida physicians will file for yet another en banc hearing in January, although there is no certainty that the full court will hear the appeal.
The good news for Florida physicians, Hallward-Driemeier says, is that the District Court's 2011 injunction against enforcing the law remains in effect until the appeals court directs Judge Cooke to set aside her earlier injunction.
"We are going to file yet another rehearing en banc, and as long as that remains pending, the injunction will remain in force," Hallward-Driemeier says. "If the en banc court rehears the case and disagrees with the panel majority, then the injunction would remain in force permanently. And even if the en banc court did not agree to rehear the case, we would be able to seek a stay from the Supreme Court while we sought Supreme Court review."
Hallward-Driemeier says he's surprised that the fight over this law has gone on this long, and that physicians may have to look to the highest court for a resolution.
Legal opinions on Wollschlaeger v. Farmer (lawsuit filed against "Glocks vs. docs" bill):
John Commins is the news editor for HealthLeaders.