HSPH researchers call new Florida gun law unconstitutional

September 20, 2011 — Restrictions on physician-patient conversations could threaten public health

A new Florida law aimed at preventing health care practitioners from asking patients whether guns are stored safely in their homes “sets a dangerous precedent” by limiting patient-physician discussions and could pose an increased threat to public health, say two Harvard School of Public Health (HSPH) researchers.

Lindsey Murtagh, research associate, and Matthew Miller, associate professor, both in the Department of Health Policy and Management, wrote a commentary about the issue that was published online August 11, 2011 in the Journal of the American Medical Association.

They argued that the Florida law “will likely have a chilling effect on patient-physician discussions about the risks posed by a gun in the home.”

The law went into effect in June after heavy lobbying by the National Rifle Association (NRA), but a federal judge recently blocked its enforcement after a group of Florida physicians filed suit to have it nullified. Ruling on September 14, U.S. District Judge Marcia Cooke said it was important to emphasize “the free flow of truthful, non-misleading information within the doctor-patient relationship.”

Florida Gov. Rick Scott said the state would appeal.

Murtagh, Miller, and the physicians who sued the state of Florida all say the new measure should be ruled unconstitutional because it censors discussion between physicians and patients in violation of physicians’ First Amendment rights, without furthering a sufficient state interest.

“If this law is allowed to stand, what will physicians be forbidden from asking patients next?” Murtagh and Miller wrote in JAMA. They added, “We believe this law is a form of censorship that directly undermines the sanctity of the patient-physician relationship.”

NRA spokespersons have said that doctors’ questions about guns in the home are an intrusion of privacy and represent an anti-gun political agenda. However, Murtagh and Miller think a state’s interest in educating people about the potentially life-threatening risks from guns in their homes should trump whatever interest it may have in protecting the privacy rights of gun owners. And Murtagh observed that any information physicians learn from patients about gun ownership or safety in their homes would be private.

So far, Florida is the only state that has passed this sort of law, although two other states—Virginia and West Virginia—have considered similar measures.

In their JAMA commentary, Murtagh and Miller pointed out that numerous studies have shown that firearms in the home are associated with a significantly increased risk of death from suicide, homicide, and unintentional injury. The risk is from two- to ten-fold, depending on the population involved and how the gun is stored.

“The dangers guns pose are well-established,” said Murtagh.

Since the new law specifically prohibits questions about gun ownership—not general conversation—Murtagh and Miller wrote that clinicians may still be able to address the dangers of guns in the home by refraining from posing questions and, instead, simply providing general information. But because the law also directs practitioners to “refrain from unnecessarily harassing a patient about firearm ownership during an examination,” doctors may be reluctant to go even that far, they wrote.

Even though this new law is written broadly, by not specifically restricting general “non-harassing” conversation, “it certainly has a chilling effect,” said Murtagh.

Miller, an expert on gun-related violence, called the new law “basically a form of intimidation.” Noting that previous Supreme Court rulings have established that states’ have legitimate interests in “preserving life,” he said that “a doctor should be able to discern from his or her patient what sort of questions need to be asked” to further those interests. The questions could be about risky sexual behavior, smoking, wearing bike helmets or safety belts, he said, “or they could be about whether you have guns in your home and how you store them.”

Read the JAMA commentary

Learn more

Firearms Research, Harvard Injury Control Research Center

Majority of Young Victims of Unintentional Shootings Shot by Another Youth (HSPH press release)

Guns and Suicide: A Fatal Link (Harvard Public Health Review)