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Abstract
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In February, the full U.S. Court of Appeals for the Eleventh Circuit issued its long-awaited ruling in Wollschlaeger v. Governor, State of Florida, invalidating parts of Florida’s Firearm Owners’ Privacy Act (FOPA) and affirming that the First Amendment applies to the speech between physicians and patients. The decision ensures that physicians may continue to make efforts to protect their patients from gun-related injuries, many of which are fatal and which in aggregate account for approximately as many deaths annually as do motor vehicle accidents.
Passed in 2011, the FOPA is similar to legislation that has been introduced, but not enacted, in at least 10 other states. The law prohibits physicians from routinely asking patients about firearm ownership, routinely entering any information on firearm ownership into patient records, discriminating against patients on the basis of firearm ownership, and “unnecessarily harassing a patient about firearm ownership.” After its enactment, local physicians and medical associations challenged the FOPA in federal court, arguing that by placing these content-based restrictions on physicians’ speech, the Act violated the First Amendment. The District Court agreed and stopped enforcement of the law. The State of Florida appealed to the Eleventh Circuit. In an unusual course of events, three opinions of a three-judge panel of the Court of Appeals were issued and then vacated before the full, or en banc, court decided to rehear the case.
The full court disagreed with the panel, striking down most of the FOPA’s provisions by a resounding vote of 10 to 1. Continuing the pattern of procedural curiosities, the court issued two majority opinions. The lead opinion, which focused on the First Amendment claim, was authored by Judge Adalberto Jordan, an Obama appointee, and joined by eight other judges. The second opinion, written by Clinton appointee Judge Stanley Marcus and joined by six other judges, concluded that the FOPA’s antiharassment provision was unconstitutionally vague. Judge Gerald Tjoflat, a Ford appointee, who had authored the three previous panel decisions, wrote the lone dissent.
The initial substantive question before the full court was whether the First Amendment applied to the FOPA. The state argued that the FOPA’s effect on speech was merely incidental to the regulation of the practice of medicine and therefore not subject to the First Amendment. The court disagreed, stating that “speech is speech, and it must be analyzed as such for purposes of the First Amendment.”
The majority then turned to the standard of judicial review. The three panel decisions had each relied on a different standard of review, from the most lenient, “rational basis” review, to intermediate scrutiny, to so-called strict scrutiny, the most stringent judicial review. Without rejecting the possibility that strict scrutiny might apply, the majority settled on heightened or intermediate scrutiny, which requires the state to show that the law directly advances a substantial state interest and is well designed to achieve that interest.
Applying this standard, the court had little trouble concluding that the FOPA’s provisions regarding inquiries about firearm ownership, keeping records of that ownership, and harassment of patients over it were unconstitutional. As the court explained, the state relied on anecdotal evidence, and “there is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective.” The court also found that the FOPA’s antiharassment provision was so “incomprehensibly vague” that physicians would be unable to effectively determine what would constitute harassment. The court argued that this vagueness would lead to self-censorship and, in many ways, undercut a central feature of the patient–physician interaction: “We expect doctors to doggedly exhort unhealthy patients to exercise more, eat less, or stop smoking, even when such admonishments may ‘annoy persistently.’”
In addition, the court concluded that the state’s reliance on the Second Amendment, which the Supreme Court has interpreted as conferring an individual (though not absolute) right to keep and bear arms, was misguided because that amendment “does not preclude questions about, commentary on, or criticism for the exercise of that right.” The court, however, upheld the FOPA’s prohibition of discriminating against patients on the basis of firearm ownership, finding that the provision could be understood as applying to physician conduct (e.g., charging patients more if they owned guns or stored firearms unsafely) rather than to speech....
Language: en |