What Is the Gun Gag Rule, and Why Should It Matter to You?

Taken from the July/August 2017 issue of the Women’s Health Activist Newsletter.

Most parents understand that these questions have a two-fold purpose: 1) to ascertain whether you are doing as much as possible to protect yourself and your child from injury, and 2) to remind you of the importance of doing everything possible to prevent “accidents.”

So why did Florida pass a law, the “Firearm Owners’ Privacy Act,” banning pediatricians and internists from asking patients if they have guns in their house?

Guns in the home do increase the risk of accidental shootings, so it is pertinent to discuss how to safely store guns and ammunition, use gun locks, and prevent accidental use of firearms. But in 2011, Florida passed this National Rifle Association- (NRA) sponsored gun gag law, which forbade doctors from asking about guns in the home and mandated a fine of up to $10,000 and loss of medical license just for discussing guns with patients. The state further suggested, falsely, that physicians might communicate gun ownership information to the Federal government to create databases of these owners — even though Federal law protects the privacy of patients’ medical information from this kind of use.

Doctors have a duty to ask questions even if the patient finds them uncomfortable. The patient’s interest in privacy is protected by his or her right not to answer the question. As the American Medical Association (AMA) states: “Even a broad interpretation of the right to own firearms would not in any way limit the First Amendment rights of physicians and their patients to ask and answer questions and engage in follow-up counseling about the dangers that firearms in the home pose to children… Patients may not be aware that the presence of firearms in the home can have dangerous and unintended consequences, especially if there are children in the house.”1

Florida, relying on NRA guidelines, said that doctors asking about guns was tantamount to lobbying against guns. In related actions, the NRA asserted that collecting data about gun ownership, gun violence, and accidental gun injuries and deaths was also an attempt to promote gun control.

Since 1996, the pro-gun lobby has made sure that that the Centers for Disease Control and Prevention (CDC) self-regulates itself, and has not dedicated any public health research dollars to learn how to reduce injuries and deaths from guns.ii The agency still conducts research on the best ways to prevent firearm injuries as part of its work to prevent youth suicides and domestic violence. Nonetheless, fear of an NRA backlash and the lack of dedicated funding have had a significant chilling effect on research in this field; public funding for research on these critical topics decreased by 96 percent between 1996 and 2013.

In 2012, after the Sandy Hook massacre of elementary school children, President Obama tried to increase funding for this type of research, but the fear of the NRA and loss of other funding was so pervasive that the CDC continues to avoid gun-violence investigations.

Privately funded research continues, however. From this information, we know that U.S. citizens own about 300 million guns and that, every year, more than 32,000 people die from gun-related incidents. More than twice that many have non-fatal gun injuries. The Coalition Against Gun Violence reports that 1.5 million children live in households where guns are kept loaded and unlocked and that, in 2010, there were 2,711 infant, child and teen firearm deaths, averaging 7 fatalities every day. Compared to other high-income countries, all of which have stricter gun control laws that the U.S., our gun homicide rates among youth aged 15-24 are 35.7 times higher; for children aged 5-14, our gun suicide rates are 8 times higher; our unintentional death rates from firearm injuries are 10 times higher.

It is clear that gun injuries are a major public health concern, and that data about how, where, and why accidents occur are critical to preventing them. We know that this type of research can help identify programs and policies that save lives. Similar research into automobile accidents (including research on speeding and seat belt use) has identified solutions that have led to marked reductions in both fatal and non-fatal car injuries.

A significant number of professional medical groups has called firearm related injury and death a major public health issue.1 In an article in the AMA’s Journal of Ethics, they called for better gun control measures and opposed physician gag laws that prevent doctors from even mentioning guns to their patients. These groups state: “Physicians can and should play an important role in efforts to stem this epidemic – by advising their patients about the dangers posed by firearms in the home and counseling them about best safety practices.”2

The AMA is further concerned that these gag laws could set a precedent that enable politicians and policymakers to outlaw other lines of questioning that do not meet their ideological standards. Remember that, under the Global Gag Rule, the U.S. government has already banned health workers in foreign countries from discussing abortion care in their clinics if the clinic receives any Federal funding.

As a pediatrician, my focus is on keeping curious toddlers and depressed teens from getting their hands on loaded guns — but this is also a critical issue for women at risk of domestic violence.

The saga of this law’s journey through the courts is long and troublesome. Signed into law in June, 2011, the Florida law was immediately challenged by a variety of medical groups and the Brady Center to Prevent Gun Violence, on the basis that it violated physicians’ First Amendment rights to free speech. In June 2012, the District Court ruled in favor of the physicians and enjoined the law from being implemented. The Court said that the law harmed patients by preventing them from hearing important preventive health messages from their physicians, and that there was no legitimate state interest that would justify this barrier on physicians’ speech.

The state appealed, and it took over a year for the U.S. Court of Appeals to issue a ruling. In a two-to-one decision, a three-judge panel of the Court of Appeals reversed the injunction, and found that state legislatures can prohibit physicians from discussing with a patient (or a patient’s parent) any medical issue that the legislature finds distasteful. The physicians then sought a review of the decision by the entire Court of Appeals. A year later, that petition was denied and the Court issued a new decision, coming to the same conclusion but basing the finding on a different interpretation. The physicians appealed again for the full Court’s review. The panel issued a third ruling (which is highly unusual) and again denied the full Court’s review. The physicians appealed for the third time, requesting a rehearing before the full Court. This was finally granted in early 2016, and the previous decision was vacated.

At long last, in February 2017, in a 10-1 decision, the U.S. Court of Appeals upheld the lower court’s decision against the gag rule. The Florida law was, once again, enjoined from being enforced. This victory came after a costly, five-year fight and the state could, of course, still appeal to the U.S. Supreme Court. Given the Court’s make-up, the prognosis for a decision supporting evidence-based public health does not look good.

Since 2011, 14 other states have considered bills that would restrict physician counseling or would prohibit entering firearm ownership information into a medical record. So far, no other state had enacted a Florida-like law. But, in this new political era, a push for these free speech limitations would not surprise me.

There are a few things you can do on your own: If you have guns at home, get the most advanced trigger lock available (some cities and organizations make them available for free). It is equally important for parents to ask about gun availability in every household your child visits: including friends, relatives, and in-home day care. The pro-gun lobby hasn’t taken that right away from us.

Barbara Gold, MD, FAAP, is a recently retired general pediatrician who has been involved in political advocacy regarding children and women’s health and gun control issues for her entire adult life.

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1. Rathore MH, “Physician ‘ Gag Laws’ and Gun Safety,” AMA Journal of Ethics 2014; 16(4): 284-88.2

*These groups include: the American Academy of Pediatrics; the American College of Physicians; the American College of Surgeons, the American Congress of Obstetricians and Gynecologists, the American Public Health Association, the American Psychiatric Association; the American Academy of Family Physicians, and the American College of Emergency Physicians.

2. Frankel TC, Dz Why the CDC still isn’t researching gun violence, despite the ban being lifted two years ago, The Washington Post, January 14, 2015.