The Physician’s Place (Update)


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.

21 thoughts on “The Physician’s Place (Update)

  1. maz

    “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.”

    Or maybe they decided guns — like household cleaners and prescription medicines — should be stored safely out of the reach of children. Evidently, common sense is far too radical a concept for the Florida legislature to countenance.

    1. SHG Post author

      Maybe they did. Maybe they should refuse to treat patients who don’t have childproof hooks on their cabinets, because laundry detergent can kill. That’s the beauty of how the self-righteous view the world: their choices are totally justified to be imposed on everyone else because it’s just common sense. How did the world ever survive without busy bodies telling everyone how to live?

      1. maz

        ” their choices are totally justified to be imposed on everyone else”

        If I meet with my lawyer, I expect him to tell me I was an idiot for volunteering information to the police. When I go in for a check-up, I expect my doctor will comment upon my intake of saturated fats; ask if I’ve strictly engaged in safe sex, and suggest an STD test if I haven’t; and recommend I cut back on single malt and sniffing glue. She may also mention some preventative actions I might take, like getting off my fat ass and exercising, or getting vaccinated against hep A/hep B if I insist upon working the docks at night. Here I was thinking I was receiving on-topic advice from professionals whose assistance I had sought; I’m horrified to learn my doctor and lawyer were actually imposing their biased opinions onto me.

        1. SHG Post author

          Notice that you’ve used the word “I” fourteen times in your comment (yes, I counted)? Because whatever you feel is right for you must be imposed on everyone else. Your narcissism is stunning, but not as stunning as your inability to see it even when it’s rubbed in your face.

          1. KP

            Definately not what I would expect from a doctor! I want to know what’s wrong with me and how to fix it, the rest of my life is none of his business!

            ..and I certainly don’t want a sex education lecture for my children when they go in for a grazed knee! Sure, don’t treat them, its your privilege and there are other doctors around.

            Doctors are there to fix broken people, not to stop them getting broken!

            1. SHG Post author

              If there’s a relationship between the reason a person seeks medical care and the cause raised by the doc, then that is, and should be, a fair subject of discussion. But when it’s the doc’s, or the medical establishment’s, political value judgments, and they are forced upon patients as a matter of routine, they have overstepped their bounds.

              And once overstepped bounds become the accepted norm, then every person who truly believes in the virtue of their values is entitled to force them upon others.

  2. Boffin

    The problem is that the answer is going to end up in an Electronic Health Record (which is completely confidential of course -Ha!). The askee’s choice is to be honest and be permanently marked as a gun owner, lie, or demur, which gets marked as Uncooperative and Evasive, perhaps a mental health issue.

    The nincompoops here are the AMA etc., trying to push a political agenda.

    1. SHG Post author

      That’s what “the problem is”? Or is the problem that this post flew so far over your head that you couldn’t even hear the whoosh sound?

      1. Boffin

        Yeah, the documentation is the problem. Nobody would care about what questions the doctor is asking if it wasn’t going to end up in a computer, accessible to the gov’ment, the press, employers, insurers, and subject to subpoena.

        1. SHG Post author

          Did somebody authorize you to speak for mankind, what it does and does not care about, and not tell me? That makes me feel marginalized.

  3. phv3773

    So far as I can see, the law does not prohibit a doctor from giving patients, or their parents, or their children information about hazards to the patient’s health from guns if he doesn’t ask about gun ownership, and doesn’t preach to the point of harassment.

    There are certainly times when specific inquiry guns about is reasonable, e.g. with respect to ear and eye injuries. As I read the law, asking about guns in these cases would be permitted.

    There are also some psyche drugs which have a known side effect of suicidal ideation, and it’s understoot that many teen suicides are impulse acts. Asking about guns when making these prescriptions would probably also pass muster.

  4. Ross

    There has been a lot of discussion on this topic in gun culture since the AAP came out against gun ownership in the early 90’s. The more rational thinkers generally suggest telling the doctor that it’s not really a medical issue and to move on to the next question, or thank the doctor if materials on gun safety are offered. If the doctor persists, it’s time for a new doctor the parent is more comfortable with. As one comment I saw said “Doc, we are here about this pain in my son’s leg, let’s talk about that”.

    If there is a balanced approach by doctors, they will restrict themselves to pointing out that unsecured firearms in a home with children can be a safety issue, and offer to provide firearm safety materials prepared by an entity with some expertise in the matter, rather than going off on an anti-gun rant.

    The reactions by both sides, neither of which is capable of understanding nuance and balance (damn, that is more common every day on the topics discussed here on SJ) should be entertaining. Time to check the popcorn inventory.

    1. SHG Post author

      When the question is about guns, gun guys give a shit. When the question is about anal beads, will gun guys still give a shit? Nah. Do you not see how shrugging off the problem enables the problem? Obviously not.

      1. Nick Lidakis

        …”anal beads, will gun guys still give a shit?”

        Only if you yank really fast.

        P.S. I understood the bigger picture of your post without getting bent out of shape over firearms. Thanks.

  5. B. McLeod

    If they tried to make this into a mandated “standard of care” and bound doctors to enforce it by refusing to treat, states would then presumably be able to shut that down. Just as they can shut down bakers or florists or photographers who discriminate against gay weddings, states could forbid doctors from stigmatizing and discriminating against uncooperative gun owners.

  6. clonedaddy

    ” If there is an articuable reason under specific circumstances where it becomes appropriate for a physician to stick his learned nose into his patients’ business…”

    Gee, I hadn’t considered that was what my doctor was doing with the Cologuard sample.

  7. Dragoness Eclectic

    What do you have against people who want their frappacinos with soy milk? Some of us are lactose-intolerant and having the option is nice. On the other hand, down here, Starbuck’s service is crap, and a self-respecting coffee drinker would go to the local P.J.’s instead. Their baristas actually pay attention to things like your actual order and don’t blow you off with excuses because they are too lazy to brew up a pot of decaf.

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