Amber Ullman didnt intend to instigate a constitutional conflict when she refused to answer gun ownership questions from her Ocala pediatrician, Dr. Chris Okonkwo, during Ullmans July 2010 visit with her 4-month-old daughter, Temperance.
Gun ownership is one several health- and safety-related topics that doctors routinely discuss with patients. On intake forms and in person, family practitioners and pediatricians often ask whether guns are properly stored, if swimming pools are fenced and if second-hand smoke floats through the home.
Why would a doctor ask about guns? American homes are where more than three in four unintentional gun injuries and deaths occur among those age 16 or younger.
But as Slate.com reported, Ullman spat back to Dr. Okonkwo, Didnt you hear what I said? None of your damn business!
When Dr. Okonkwo ended the relationship, Florida politicians were off and running. Following the fervor, the Legislature passed the Firearm Owners Privacy Act in April 2011. But the statute is so broad and vague as to prevent physicians from asking all gun-related questions lest they face hefty fines and the loss of licensure.
Led by Dr. Bernd Wollschlaeger, a North Miami Beach family-practice physician, several doctors promptly sued, arguing that the Florida act hinders their ability to practice preventive medicine. A federal judge in Miami agreed, and she enjoined the law in June 2012. But the state appealed the case, which the media have dubbed Docs v. Glocks.
Now, Florida is awaiting a decision from the 11th Circuit Court of Appeals on whether the court will save the statute. (The judges heard oral arguments last July). Florida claims its law is a safeguard for the right to bear arms, but the appeals court should preserve the lower courts decision.
Stopping the statutes enforcement sends the message that doctors are people, too and their professional speech is deserving of First Amendment protection. If Floridas law is left to stand, state legislatures could arbitrarily outlaw language on any number of topics that might offend patients.
Meanwhile, threats abound to physicians freedom of expression. Florida nicknamed the Gunshine State for its litany of firearm-friendly laws was merely the first in the nation to pass its National Rifle Association-backed act. (In fact, the NRA actually wrote Floridas statute).
But in recent years, the NRA also has successfully encouraged at least six other states including Alabama, Minnesota, North Carolina, Oklahoma, Tennessee and West Virginia to consider versions of the law. And in early 2013, Kansas and Missouri lawmakers also sponsored bills banning doctors from asking patients about guns.
Even the federal government has been drawn into the debate. The Washington Post reported that NRA successfully pushed senators to tuck a clandestine clause deep within the Affordable Care Act to restrict the questions that doctors can ask about guns.
When a surprised Obama administration learned, just after the Newtown shooting, that such a provision existed in the healthcare law, the president promptly issued a January 2013 executive order clarifying that doctors can ask gun-related questions.
The lawmakers who support such restrictions claim theyre necessary to prevent harassment and discrimination against gun owners. Yet, a law that forbids doctors from asking patients about guns is a solution in search of a problem.
Florida has offered no evidence that gun-owning patients regularly face harassment or discrimination from doctors. Prohibiting such questions doesnt expand patients rights to possess, carry or own guns. And even without a law, patients still have the freedom to not answer their doctors personal questions.
Florida fallaciously claims that the law does not prevent doctors from asking about guns if such questions are relevant to their patients health and safety, and if the physicians have a good faith reason to ask. Yet, it is impossible to discern when a physicians gun inquiry meets those standards.
Meanwhile, Floridas law paternalistically protects gun owners based on the assumption that physicians firearm-related questions are automatically offensive. But who is to say that ever patient would be bothered having a gun safety conversation?
After all, research shows that up to half of all gun-owning parents keep their weapons unlocked. So, is it offensive to ask, Dont children deserve protection, too?
Daniel Axelrod is a former newspaper reporter. He is the co-author of a recent law review article on the case, Wollschlaeger v. Farmer, which is currently before the 11th Circuit U.S. Court of Appeals.