Wednesday, July 4, 2012
Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech. The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them. We posted on the case previously--when Judge Cook granted a preliminary injunction--here.
The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership. But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence. (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.) Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law. This is a pure free speech case, and the state's stated interests just don't hold up.
A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership. The plaintiffs claimed that the law chilled their speech about preventive health issues. Judge Cook agreed. The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.
Florida Statutes 790.338 provides:
(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.
(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.
. . .
(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.
After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment. She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.
The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.
But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment. The law was based entirely on a handful of anecdotes. Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership. The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.
They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.
Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing." Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.