The American Society of Pedantic Progressive Pediatricians has announced that all physicians should engage in a ten minute discussion with patients, outside of the hearing of parents and legal guardians, between the ages of 12 and 15 about the virtue of trying homosexual sex before determining their gender identity. If the patient, or their parent or legal guardian refuses to allow or attend the discussion, the physician should refuse to provide medical care to the patient.
Insane? Ridiculous? Outrageous? Obviously, but the hyperbole is used to make a point. Physicians hold a place of special knowledge and trust. Physicians provide a skill that people require. Physicians have an opportunity to exert an influence above and beyond the limits of their position as medical providers because of these things, so why not use that position, that influence, that trust, for causes?
That’s the problem that gave rise to the law partially struck down by the 11th Circuit, en banc.
Yesterday, the 11th Circuit handed down a substantially revised opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case.
Between Eugene Volokh and Ken White, at least on his second try, the holding has been well explained.
In short, the Eleventh Circuit lead majority opinion found that FOPA’s inquiry, anti-harassment, and record-keeping restrictions were content-based restrictions on speech and didn’t survive even heightened scrutiny.
In addition, a majority of Eleventh Circuit judges joined a second majority opinion — an unusual and confusing circumstance — that decided that the anti-harassment provision is also unconstitutional because it is impossibly vague, so that doctors don’t know what conduct is actually prohibited.
The law, Florida Firearm Owners’ Privacy Act (FOPA), sought to prohibit docs from discussing guns with patients. For the various reasons discussed, this was a content-based regulation on speech, and violated the First Amendment. It was not merely a permissible restriction on professional speech, such as disclosure of patients’ medical information at cocktail parties, but an imposition on a physician’s ability to both seek necessary information and counsel on health matters.
But the underlying problem giving rise to this unconstitutional restriction gives rise to serious concerns, particularly in light of the 11th Circuit’s ruling.
The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians all recommend that doctors ask patients about guns in the home as part of an effort to “childproof” homes and encourage safety.
In other words, the docs decided that guns were bad. Guns were dangerous. They didn’t like guns, and patients, especially those with children, shouldn’t have guns. Notably, there is that unpleasant Second Amendment thing about the right to have guns, but to many, that’s a bad constitutional right, and only constitutional rights with which you agree are worthy of support. Guns? Not worthy.
Is child safety a worthy cause for physicians? Of course. It’s a worthy concern for everyone. But that doesn’t come close to “answering” the question of what to say, what to do, and who has the authority to tell others what to do.
Many people today believe that any physical punishment of children is inherently wrong, dangerous and must be stopped at any cost. So if you are out in public, say sitting outside your fav Starbucks sipping your venti mocha frappuccino with soy, and see a mother give junior a smack across the bottom, is it your place, your duty, to intervene? Should you tell mom that she’s an evil criminal? Should you take your
walkman iPhone and throw it at her?
Here’s the thing: if you sincerely believe that mom is committing a crime by corporal punishment of her offspring, isn’t your white knighting the kid totally justified? How can you watch this and do nothing to prevent such grievous harm to a child? Are you a monster?
But then, who are you to decide that a mom’s spanking a child is a crime? Who are you to interfere with other people’s choices, decisions, of how to behave?
Of course, the reply is that guns are different. Physicians are different. Guns kill, and physicians have a duty to prevent harm to children. In an existential sense, that may be true, but we’re pretty deep into Chaos Theory at this point. If there is an articulable reason under specific circumstances where it becomes appropriate for a physician to stick his learned nose into his patients’ business, then this might be true. But generically? Is it a doc’s duty to inquire of all patients, just, because, guns are bad?
And where does the mission creep end? The smugly sanctimonious sincerely suggest that they are entitled, no, duty-bound, to spread their feelings of woke righteousness to the ignorant. Forget that grandpa, whom you deeply adore, believed in “spare the rod, spoil the child,” and never hesitated to whip off his belt when he decided that a good whupping was due. Was grandpa a criminal? Cognitive dissonance is so out of fashion.
The takeaway from the 11th Circuit’s en banc decision is that the First Amendment precludes the silencing of physicians who believe that the Second Amendment sucks. And, it does. But then, we’re still left with the problem of docs who believe that many other social evils are harmful. And lawyers who believe it’s their duty to use their good offices to fight the demons in the name of social justice. And those SJWs sipping their mocha frappuccinos with soy.
These aren’t legal lines, although they are winding their way into rules, as reflected by the ABA’s Rule 8.4(g) which makes it unethical to use a word that makes a girl sad, even as the same ABA has forfeited any interest in lawyers being competent to practice law.
While the “breaking” hyperbole at the top of this post seems absurd at the moment, it’s not very far from what the future could bring. And, as the 11th Circuit rightly notes, there is nothing the law can do to stop this.
Update: And the New York Times finally finds a free speech ruling it likes, not because of speech but because it hates guns.
It was also just plain dumb. Studies show that guns in the home lead to an increased risk of injury and death, and that people who speak to their doctors about gun-storage practices are three times as likely to store guns safely later.
Had the ruling been about docs and dildos, it should have been the same.
As Judge William Pryor wrote in a concurring opinion, criminalizing medical advice is a slippery slope. “Could a state prohibit a doctor from advising parents to vaccinate their children? Could a state prohibit a doctor from recommending abstinence or encouraging safe sexual behavior? What about organ donation or surrogacy or terminal care?”
It’s a slippery slope no matter which way it goes, none of which has to do with the application of the First Amendment. Docs have a right to speak without legal constraint to their patients. That’s the good part and the bad part, as some future Times editorial will assert when docs tell patients something they don’t like.