The U.S. Court of Appeals for the 11th Circuit, sitting en banc,
In 2011, the Florida Legislature passed the
Under the law, physicians could not enter any information regarding firearm ownership into the patient's medical record if they knew this information is not "relevant to the patient's medical care or safety, or the safety of others." They could not "discriminate" against a patient "based solely on the patient's
Believing the law violated their First Amendment rights to free speech, physicians filed suit to block the law in federal court. A district judge ruled in their favor, but that decision was overturned by the 3-judge panel.
The full ("en banc") 11th Circuit Court issued a ninety-page ruling last week. In its 10-1 decision (with two majority opinions and one dissent) the court took a dim view of the state's assertion that silencing physicians was necessary to protect patients' Second Amendment rights:
"The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights."
As the court noted, physicians are private actors, not the government, which is the object of the Second Amendment's protections. The court found that the record-keeping, inquiry and anti-harassment provisions of the law are unconstitutional, but upheld the portion of the law that bars doctors from discriminating against patients who have guns.
According to one of the majority opinions,
"Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership, but it 'may not burden the speech of others in order to tilt public debate in a preferred direction.' "
"There is nothing in the record suggesting that patients who are bothered or offended by such questions are psychologically unable to choose another medical provider, just as they are permitted to do if their doctor asks too many questions about private matters like sexual activity, alcohol consumption, or drug use."
The state could ask the U.S. Supreme Court to review the decision but has not yet decided whether to do so.
Doug Hallward-Driemeier of Ropes & Gray, the law firm that represented the physicians in the case,
"This decision is critical to the health and safety of Florida families . . . It makes clear that the First Amendment does not allow the government to interfere with a doctor providing her best medical advice to her patient."
As we've noted