By Christian Chartier and Philippe April.

On July 21^st, 2018, the American College of Physicians’ (ACP) Board of Regents approved a policy paper commissioned to reiterate the ACP’s support for a public health approach to firearms-related violence. On November 7^th, eight days after the article’s eventual publication, the National Rifle Association (NRA) issued a reply via its Twitter account: “Someone should tell self-important anti-gun doctors to stay in their lane.” If left unchecked, this most recent threat to the legitimacy of the medical perspective may succeed in politicizing that which generations of medical professionals have sought to shield from political matters: the patient-physician relationship.

Here we wish to revisit the generalizable conclusions reached by the 11^th Circuit Court of Appeals (en banc) in Wollschlaeger v. Governor of Florida and to sow the seeds of compromise between First and Second Amendment proponents, in favour of upholding the strictest standards of patient care.

Passed in 2011 and permanently enjoined in 2012, the Firearm Owners’ Privacy Act (FOPA) consisted of four restrictions prohibiting physicians in Florida from inquiring about or maintaining records relating to gun ownership status. Three such restrictions also infringed on physicians’ First Amendment rights to free speech, as determined by the 11^th Circuit, which formally vacated FOPA’s unconstitutional provisions by a 10-1 majority in Wollschlaeger v. Governor of Florida (2015).

In a compelling opinion, Justice Adalberto Jordan cited Reed v. Town of Gilbert, Arizona to describe the standard of protection offered by the First Amendment to the patient-physician relationship. He rejected a “rational basis” review in favour of a strict higher standard of review, because it would expose medical professional speech to regulation in cases where the government is “[hostile] towards the underlying message expressed.” (1) Thus, only professional speech causing “real and not merely conjectural” harm should be vulnerable to government regulation. The court chastised lawmakers for relying on a mere six anecdotal cases as cause for the gag order, citing a lack of any “other evidence, empirical or otherwise, presented to or cited by the Florida Legislature.”

On the other hand, the court sought compromise in refusing to invalidate the other, constitutionally sound, provisions protecting a patient’s right not to disclose gun ownership status and introducing punishments for discrimination by insurers and medical professionals. The majority further suggested that preventing the termination of a patient-physician relationship based on gun ownership status would be a less intrusive way of avoiding discriminatory conduct.

Though the 11^th Circuit’s en banc decision may yet influence the constitutionality of similar existing or proposed legislation in other States, dissenting Justice Gerald Tjoflat noted the court’s reluctance to propose a standard approach to matters of “content-neutral” (1) speech. In blunt terms, this matter is far from being settled nationwide. Twelve other state legislatures have proposed similar restrictions, with forms of government overreach into the exam room being lawful in Montana, Missouri and Minnesota.

Yet another instance of content-based physician censorship is codified in Section 2717 of the Affordable Care Act (ACA, colloquially, Obamacare), which prohibits the collection of gun ownership status data. (2) It is our belief that federal healthcare policy should be held to the same standard as was FOPA by the 11^th Circuit, which decided that no less than “real, and not merely conjectural” (1) harm can justify such a restriction of physician autonomy. In Wollschlaeger, the court found that data collection prohibitions are unconstitutional given that no empirical evidence legitimizes their purpose. With other provisions in the ACA already prohibiting health insurers from price discriminating against gun owners, what subsequent “real, and not merely conjectural” harm can legitimize a restriction on the collection of anonymized data for research purposes?

It is with these legislative shortcomings in mind that we must consider the devastating public health implications of physician censorship or compelled speech. In the case of the Illinois Abortion Law of 1975, physicians were required to remind patients seeking an abortion of the state’s pro-life position and provide them with the following scripted statement: “The State of Illinois wants you to know that in its view the child you are carrying is a living human being whose life should be preserved. Illinois strongly encourages you not to have an abortion but to go through with childbirth”(3).

The use of medical professionals as messengers for compelled speech confuses patients, who in most cases are ill-equipped to discern between speech that constitutes evidence-based medical advice and that which advances a governmental agenda. Conversely, under FOPA, fear of penalty and prosecution deterred medical professionals from discussing firearm safety or maintaining formal records of voluntary patient disclosure of firearm ownership status. Where compelled speech affords the state undue influence, censorship-inducing fear of litigation equally impinges on the marketplace of ideas. As patient-doctor relationships are already complex and multi-layered intersections of race, gender and socioeconomic status, the patients most likely to be exposed to increased health risks are also least likely to be otherwise made aware of the medically relevant risks of firearm ownership and home storage. Criminalizing discussion about certain topics in the exam room should be no more acceptable to physicians than is compelled speech, so far as it leverages patients’ trust in doctors for partisan purposes and renders the patient-physician relationship transactional.

To conclude, the controversy generated by the NRA’s “stay in your lane” tweet speaks to the pervasive disbelief in the coexistence of effective health advocacy and respect of the Second Amendment. Both are, undoubtedly, constitutionally protected. However, to allow a proxy war over gun control to be fought at the expense of patients in the arena of public health is to legitimize the cause of doctors seeking to reaffirm what unequivocally should be considered their lane. The failure of governments to intervene on what medical professionals can or cannot say is firmly anchored in the history of American healthcare. With respect and deference to the past, we seek to keep politics and controversy out of the medical examination room, in no other best interests than in those of patients.

References

1. Wollschlaeger v. Governor, Florida. 2017. URL: https://scholar.google.ca/scholar_case?case=7670535306273106781&q=Wollschlaeger+v.+Governor,+Florida&hl=en&as_sdt=2006&as_vis=1

2. Patient Protection and Affordable Care Act. 2010. URL: http://housedocs.house.gov/energycommerce/ppacacon.pdf

3. Berg P. Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice. Boston University Law Review. 1994Mar;74(2):201–66. URL: https://academicworks.cuny.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1295&context=cl_pubs

Authors: Christian Chartier¹ and Philippe April²

Affiliations:

      ¹ McGill University Faculty of Medicine

      ² McGill University Faculty of Law

Competing interests: Non-disclosed