By Zachary Fagenson
MIAMI (Reuters) - Efforts to reinstate a Florida law that bars doctors from asking patients about gun ownership, had doctors arguing in an appellate court hearing on Thursday that such a ban would violate their First Amendment rights.
A lawyer for the state countered that the law, which was struck down by federal judge last year, recommends that doctors not ask patients about gun ownership but would not ban such questions.
Lawyers representing doctors and others in the so-called "Docs v. Glocks" case argued that U.S. Judge Marcia Cooke's 2012 decision should stand as the law violated health care providers' First Amendment rights by threatening them with heavy fines and the possibility of losing their license should they broach the subject.
Doctors say they ask about gun ownership as a normal part of screening new patients, including it on long list of health questions about drug and alcohol use, smoking, exercise and eating habits.
"The legislature perceived the question as a political attack on gun ownership and set out to stop it," Douglas Hallward-Driemeier, a Miami attorney representing doctors and other groups, told the three-judge panel. The law "singles out the speech most protected by privacy."
Allen Winsor, a lawyer from the Florida Attorney General's office, said the law's language doesn't force doctors to do anything.
"The legislature said should, not must, not shall," he argued. "They were not mandating, but making a recommendation."
Judge Gerald Tjoflat's suggested that if the 2011 Firearm Owners' Privacy Act is repealed it would free the government to find gun owners through online medical records.
That information "goes to Uncle Sam in Washington and now everything the patient has said is at the government's disposal," said Tjoflat.
But doctors say confidentiality always applies. "I can't release any records unless there's a subpoena," Dr. Bernd Wollschlaeger, a family physician who was the lead plaintiff in the 2012 suit that led to the law being overturned, told reporters after the hearing.
Florida's Republican-led legislature passed the law after a north Florida couple complained that a doctor asked them if they had guns, and refused to see them after they declined to answer. When the law was ruled unconstitutional in 2012, with a federal judge saying it did not infringe on Second Amendment rights, Florida Governor Rick Scott and the state's health department quickly appealed the decision.
Critics of the law say the state's appeal is driven by the National Rifle Association and the gun industry to prevent regulations.
"This law is an unprecedented attempt by industry to silence the medical community about the risks posed by their products," said Jonathan Lowy, director of the Legal Action Project at the Brady Center to Prevent Gun Violence. "It would set a very dangerous precedent, that a destructive industry can simply buy the silence of a community through a misguided law."
Doctors, meanwhile, said the law is a hindrance to providing patients the best care possible.
When a patient comes in for a first time visit, "we ask all kinds of things," Dr. Judy Schaechter told reporters, citing issues such as medical history, mood issues, and drug problems. It was by "asking that question that I found out a teen patient had a gun and was trying desperately to get out of a gang," she said.
(Editing by David Adams, Barbara Goldberg and Bob Burgdorfer)
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