written by Tara Haelle

I don’t typically write about court cases or policy, but after writing the post a few weeks ago about the Ask Campaign, it’s hard to ignore one particular recent court decision that directs relates to children’s safety. In that post, I advocated that parents ask the parents of their children’s playmates whether there is a gun in the home. Today, I write about the law that prevents doctors from asking the exact same question.

More than 7,000 children and teens are injured or killed by firearms every year. Given the steady stream of tragic news stories about children finding unlocked guns, you would think it makes sense for pediatricians to ask parents whether they keep their guns locked up. But doing that requires pediatricians to ask whether the parents have any guns in the first place.

In Florida, that’s against the law. At least since June 2011, when Rick Scott signed into law the Florida Privacy of Firearm Owners Act.

You might think such a law would violate the First Amendment by restricting physicians’ right to free speech. Or, at least that’s what a bunch of physicians thought. Along with several Florida doctors, the state chapters of the American Academy of Pediatrics, the American Academy of Family Physicians and the American College of Physicians sued the state of Florida for a law they claimed violated their right to free speech (potentially including their right to pass along data in professional policy statements such as this one on firearms).

However, in a 2-1 ruling (pdf) today, a federal appeals court upheld the Florida law, arguing that a doctor’s questions about firearms violated a patient’s right to privacy. “The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care,” the majority opinion stated in the case Wollschlaeger v. Governor of the State of Florida.

The problem is, good medical care always requires taking into consideration ways to reduce the risk of injury or death. When we choose our doctors, we let them ask us questions about private family issues in exchange for their help managing our family’s health. There is no reason firearms should be any different than asking parents whether they keep their household chemicals and medications out of children’s reach.

Professional medical associations in the U.S. agree that firearm violence represents a major public health problem in the U.S. Given that the U.S. has the highest rate of gun ownership and of firearm deaths and injuries in the developed world, it’s pretty hard to argue that point. Physicians are the stewards who help address public health issues. Arguing that a doctor’s questions about a family’s ownership of firearms violates the family’s right to privacy is akin to arguing that asking about the presence of lead paint – a standard well-child screening question – is a violation of their privacy. Why is it the doctor’s business whether a family has lead paint in their home? Because it presents a risk to children. So do firearms, so why are they any different?

The AAP thinks firearms in the home should be treated at least as seriously as lead paint. In a statement released today following the decision, James M. Perrin, MD, FAAP, the president of the AAP, said the following: “State legislatures should not stop physicians from practicing good medicine. This law has a chilling effect on life-saving conversations that take place in the physician’s office. More than 4,000 children are killed by guns every year. Parents who own firearms must keep them locked, with the ammunition locked away separately. In this case, a simple conversation can prevent a tragedy. The evidence is overwhelming – young children simply cannot be taught to overcome their curiosity about guns, and to suggest otherwise is, frankly, the height of irresponsibility.”

The president of the Florida chapter of the AAP, Mobeen Rathore, MD, FAAP, issued a similar statement: “We strongly disagree with the 11th Circuit’s decision. It is an egregious violation of the First Amendment rights of pediatricians and threatens our ability to provide our patients and their families with scientific, unbiased information. This dangerous decision gives state legislatures free license to restrict physicians from asking important questions about health and safety that are vital to providing the best medical care to patients.”

Ten other states have laws similar to Florida’s introduced in their legislatures. The plaintiffs have said they will appeal the case to the 11th circuit court to be heard by the full 11th circuit court rather than the three-judge panel. Perhaps that court considers the argument made by dissenting judge Charles Wilson: “This law is … designed to stop a perceived political agenda, and it is difficult to conceive of any law designed for that purpose that could withstand First Amendment scrutiny. Regardless of whether we agree with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message.”