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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 6-7, 2012
RESOLUTION
RESOLVED, That the American Bar Association opposes governmental actions and policies that
limit the rights of physicians and other health care providers to inquire of their patients whether
they possess guns and how they are secured in the home or to counsel their patients about the
dangers of guns in the home and safe practices to avoid those dangers.
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REPORT
Legislation that limits the right of physicians to ask questions of their patients about gun
ownership and to counsel patients about the dangers of guns in the home (herein referred to as
“physician gag rules”) interferes with the preventive care duties of health care practitioners and
violates the First Amendment rights of physicians and their patients.
Health care practitioners play a key role in counseling patients about the risks of injuries
and best practices to minimize those risks as part of the practice of preventive care. Preventive
care through safety counseling is a pillar of modern medicine, and is vitally important to the
health and welfare of patients. It is also the ethical and legal responsibility of physicians.
Failure to fulfill these duties results in a breach of the objective standard of care owed to patients.
For medical practitioners to meet their preventive care and safety counseling
responsibilities, they must be able to discuss a broad range of topics with their patients related to
known risk factors. This unfettered access allows doctors to adequately assess and address these
factors with their patients. Risk factors that may be discussed vary depending on the age of the
patient, but for adults often include alcohol consumption, illicit drug use, smoking, diet, and
exercise; pediatricians often discuss wearing seat belts and bicycle helmets, the potential dangers
of backyard swimming pools, and the need to securely store household cleaners and toxins.1
Firearms in the home are another known risk factor that doctors may choose to discuss with their
patients or the parents of young patients. These discussions may focus on the known dangers of
keeping guns in the home and the importance of keeping firearms unloaded and stored separately
from ammunition to mitigate some of these risks. Safety counseling of this type is recommended
by professional medical associations.2
If legislation is passed that inhibits a doctor’s ability to discuss such vitally important risk
factors with their patients, there are direct First Amendment implications for both health care
practitioners and patients, as well as professional constraints on a physician’s ability to meet the
objective standard of care owed to their patients.
These are some of the consequences that resulted from Florida’s physician gag rule,
which was in place from June 2011 until an injunction stopped enforcement of the law in
September 2011, and are likely consequences should other states enact similar gag rules.
I. Importance of Safety Counseling
A crucial element of practicing medicine is the prevention of intentional and
unintentional physical injuries. An important tool to achieve this goal is safety counseling. This
requires an open dialogue between doctor and patient about all known risk factors, including
firearms in the home. As such, many physicians counsel patients about the dangers of guns in
the home and the importance of storing firearms unloaded and separately from ammunition.
1
See Wollschlaeger et al. v. Scott et al., No. 11-22026-Civ, U.S. District Court for the Southern District of
Florida, First Amended Complaint for Declaratory and Injunctive Relief at 24, 32, June 24, 2011.
2
See, e.g., American Medical Association, Prevention of Firearm Accidents in Children, Policy H-145.990,
Res. 165, I-89 & American Psychiatric Association, Position Statement No. 200107.
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This is important because one-third of U.S. homes with children younger than eighteen have a
firearm, and more than 40% of gun-owning households with children store their guns unlocked,
with one-quarter of those homes storing them loaded.3
Unintentional injury is a health hazard, and is the leading cause of death among children
older than one year, adolescents, and young adults.4 This includes injuries from accidents
involving firearms. According to the most recent data sets published by the Centers for Disease
Control and Prevention, every day in America, thirty-eight children and teens are injured by
firearms and eight are killed by firearms.5
Intentional injury is also a major health hazard, with suicide being a particular risk about
which physicians counsel patients. Suicide is the third leading cause of death among individuals
aged 15 to 24 and is the second leading cause of death for individuals aged 25 to 34.6 Firearms
are frequently used in suicide and suicide attempts, and suicide attempts committed with firearms
are fatal more than 90% of the time. Use of a firearm is the most common method of suicide
among adult men – 55.7%.7
Intentional and unintentional injury related deaths caused by firearms claim more lives
than all injury sources except motor vehicles.8 Because of the dangers firearms pose, safety
counseling, which has the potential to reduce injury and save lives, is recommended by
professional medical associations. It is also shown to have concrete results. One study showed
that after a single instance of verbal counseling, more than 58% of patients reported making
changes to their gun storage habits.9
The American Academy of Pediatrics recommends that parents of pre-school aged
children remove handguns from places where children live and play. They advise parents of
adolescents that firearms in the home are particularly dangerous for this age group because of
their propensity for impulsive, unplanned use resulting in suicide, homicide, or serious
3
Renee Johnson, M.P.H. et al., Firearm Ownership and Storage Practices, U.S. Households, 1992-2002,
27 AM. J. PREVENTIVE MED. 173, 179 (2004). See also Teresa L. Albright, M.D. & Sandra K. Burge, Ph.D.,
Improving Firearm Storage Habits: Impact of Brief Office Counseling by Family Physicians, 16 J. AM. BOARD
FAMILY PRACTICE 1, 40 (Jan.-Feb. 2003).
4
Centers for Disease Control and Prevention, 10 Leading Causes of Death by Age Group (Sept. 3, 2010)
available at: hppt://www.cdc.gov/injury/wisqars/images/Death_by_Age_2007.gtf.
5
Centers for Disease Control and Prevention, WISQARS Nonfatal Injury Reports, available at:
http://webappa.cdc.gov/sasweb/ncipc/nfirates2001.html; WISQARS Injury Mortality Reports, 1999-2007, available
at: http://webappa.cdc.gov/sasweb/ncipc/mortrate10_sy.html.
6
Centers for Disease Control and Prevention, Suicide: Facts at a Glance (Summer 2010), available at:
http://www.cdc.gov/violenceprevention/pdf/Suicide_DataSheet-a.pdf.
7
Centers for Disease Control and Prevention, Suicide: Facts at a Glance (Summer 2010), available at:
http://www.cdc.gov/violenceprevention/pdf/Suicide_DataSheet-a.pdf.
8
Teresa L. Albright, M.D. & Sandra K. Burge, Ph.D., Improving Firearm Storage Habits: Impact of Brief
Office Counseling by Family Physicians, 16 J. AM. BOARD FAMILY PRACTICE 1, 40 (Jan.-Feb. 2003).
9
Teresa L. Albright, M.D. & Sandra K. Burge, Ph.D., Improving Firearm Storage Habits: Impact of Brief
Office Counseling by Family Physicians, 16 J. AM. BOARD FAMILY PRACTICE 1, 44 (Jan.-Feb. 2003).
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unintentional injuries. If parents choose to keep a firearm in the home, however, they are
advised to store it unloaded and separately from ammunition in locked cabinets. The American
Medical Association adopted a policy to reduce pediatric firearm morbidity and mortality by
encouraging its members to: (a) inquire as to the presence of household firearms as part of
childproofing the home; (b) educate patients to the dangers of firearms to children; (c) encourage
patients to educate their children and neighbors as to the dangers of firearms; and (d) routinely
remind patients to obtain firearm safety locks, to store firearms under lock and key, and to store
ammunition separately from firearms.10
Safety counseling regarding firearms in the home is also a recommended part of adult
medical care. The American Psychiatric Association has recommended that “health
professionals and health systems should ask about firearm ownership whenever clinically
appropriate in the judgment of the physician.”11
II. Florida’s Physician Gag Rule – H.B. 155
Despite the importance of discussing potential risks related to firearms in the home with
patients, on June 2, 2011, Governor Rick Scott signed an unprecedented new law in Florida that
interfered with health care practitioners' ability to warn patients about the risks posed by firearms
and to offer them advice on gun safety.
The Florida law, H.B. 155, subjected health care practitioners to possible sanctions,
including fines and loss of their license, if they discussed or recorded information in a patient's
chart about firearm safety that a medical board later determined was not "relevant" or was
"unnecessarily harassing." The law, however, did not define these terms.
According to the State of Florida’s legislative findings, as summarized by U.S. District Judge
Marcia G. Cooke of the U.S. District Court for the Southern District of Florida, the state passed
H.B. 155 in reaction to an incident in Ocala, Florida where a physician advised the mother of a
minor patient that she had thirty days to find a new pediatrician after she refused to answer
questions about firearms in her home.12 The House of Representatives’ Staff Analysis notes that
“Florida law does not contain any provision that prohibits physicians or other medical staff from
asking a patient whether he or she owns a firearm or whether there is a firearm in the patient’s
home.”13 The court presumed that H.B. 155 was a means to rectify this perceived gap in Florida
law.14
Judge Cooke also stated that the legislative debates on the bill revealed that the Florida
legislature relied heavily on anecdotal information about physicians asking patients about
10
American Medical Association, Prevention of Firearm Accidents in Children, Policy H-145.990, Res.
165, I-89.
11
American Psychiatric Association, Position Statement No. 200107.
12
See Wollschlaeger et al. v. Farmer et al., No. 11-22026-Civ, U.S. District Court for the Southern District
of Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 2, Sept. 14, 2011.
13
Fla. H.R. 0155C, at 2; Fla. H.R. 0155E, at 2.
14
See Wollschlaeger et al., v. Farmer et al., No. 11-22026-Civ, U.S. District Court for the Southern District
of Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 2, Sept. 14, 2011.
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firearm ownership, physicians misrepresenting that Medicaid would not pay out claims if the
patient did not answer questions regarding firearms, or physicians refusing to conduct
examinations on patients who refused to answer questions about firearm ownership.15 Judge
Cooke went on to state that it did not appear that the Florida legislature relied on any studies,
research, or statistics on physicians’ practices or patients’ experiences on this issue.16
III. Litigation Over Florida’s Physician Gag Rule
On June 6, 2011, a lawsuit was filed to strike down and prevent enforcement of H.B. 155.
The suit was filed in federal district court in Florida on behalf of the American Academy of
Pediatrics, Florida Chapter; American Academy of Family Physicians, Florida Chapter; the
American College of Physicians, Florida Chapter; and other individual physicians.
The suit charged that H.B. 155 is unconstitutionally vague and violates the First Amendment to
the U.S. Constitution by having a severe chilling effect on confidential, life-saving discussions
about the dangers of firearms in the home. The suit sought a permanent injunction to block
implementation of the law.
The lawsuit cited the extreme risk posed by firearms and the duty of health care providers
to counsel patients about risks to their health and well-being. One-third of U.S. homes with
children younger than 18 have a firearm.17 Children aged 5 to 14 years in the United States are
11 times more likely to be killed accidentally with a gun than similarly aged children in other
developed countries.18 Because of these well-documented risks, pediatricians advise parents to
keep guns away from children, secured with gun locks, and stored separately from ammunition.
On September 14, 2011, U.S. District Judge Marcia G. Cooke of the U.S. District Court for the
Southern District of Florida granted a preliminary injunction against enforcement of H.B. 155,
holding that plaintiffs would likely prevail in their facial challenge on grounds that the law was
an unconstitutional content-based restriction on speech that specifically targeted firearms issues.
Rejecting the State of Florida’s argument, Judge Cooke held that the law “does not implicate
rights that the Second Amendment protects.”19
Judge Cooke also stated that “the law curtails practitioners’ ability to inquire about
whether patients own firearms and burdens their ability to deliver a firearm safety message to
patients under certain circumstances. The…Act thus implicates practitioners’ First Amendment
15
See Wollschlaeger et al., v. Farmer et al. No. 11-22026-Civ, U.S. District Court for the Southern District
of Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 2, Sept. 14, 2011.
16
See Wollschlaeger et al., v. Farmer et al. No. 11-22026-Civ, U.S. District Court for the Southern District
of Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 2, Sept. 14, 2011.
17
Renee M. Johnson et al., Firearm Ownership and Storage Practices, U.S. Households, 1992-2002,
27 AM. J. PREVENTIVE MED. 173, 179 (2004).
18
Erin G. Richardson & David Hemenway, Homicide, Suicide, and Unintentional Firearm Fatality:
Comparing the United States With Other High-Income Countries, 2003, J. TRAUMA, INJURY, INFECTION, &
CRITICAL CARE at 1 2010.
19
Wollschlaeger et al., v. Farmer et al., No. 11-22026-Civ, U.S. District Court for the Southern District of
Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 7, Sept. 14, 2011.
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rights of free speech. The Act also implicates patients’ freedom to receive information about
firearm safety, which the First Amendment protects.”20
The Brady Center to Prevent Gun Violence represents plaintiffs as well as the law firms of Ropes
and Gray, Astigarraga Davis Mullins & Grossman, and Weisberg and Kainen.
IV. First Amendment Implications Regarding Physician Gag Rules
Health care practitioners have rights under the First Amendment of the U.S. Constitution
to engage in open and free exchanges of information and advice with their patients, including
about ways to reduce the risks posed by firearms. Gag rules seek to chill this speech and punish
health care practitioners for asking questions of, and providing information to, their patients
about firearm safety. The First Amendment does not permit such content-based intrusions on
speech. Gag rules also deprive patients of their First Amendment right to receive potentially lifesaving information regarding safety measures they can take to protect themselves and their
families from injury or death.
The practice of medicine requires a free and open exchange of questions, answers, and
information between patients and their health care practitioners. For that reason, both state and
federal law protect the confidentiality of such conversations. Practitioners must engage in highly
personal exchanges with their patients about private, confidential topics, so patients understand
the risks to themselves, their families, and their children arising from decisions they make and
conduct they engage in. Gag rules directly interfere with, and intrude upon, health care
practitioners’ ability to engage fully in these consultations by severely restricting inquiries about
a significant and preventable risk to patients.
The First Amendment does not permit individual states to require health care
practitioners to conform their communications with their patients to the state’s preferences. By
restricting the free and open exchange of information between a physician and patient in this
manner, gag rules violate the First and Fourteenth Amendments to the U.S. Constitution.
V. Second Amendment Implications Regarding Physician Gag Rules
In District of Columbia v. Heller, the Supreme Court ruled, in a 5-4 decision, that the
Second Amendment to the U.S. Constitution guarantees a limited right to possess handguns in
the home for self-defense.21 Two years later, in McDonald v. City of Chicago, the Court, by the
same 5-4 majority, held this right applicable to state and local laws through the Due Process
Clause of the Fourteenth Amendment.22
This Second Amendment right to possess handguns for self-defense, however, is not
implicated by physicians who counsel their patients about the dangers of guns in the home. As
Judge Cooke stated, “A practitioner who counsels a patient on firearm safety, even when entirely
irrelevant to medical care or safety, does not affect nor interfere with the patient’s right to
20
Wollschlaeger et al., v. Farmer et al., No. 11-22026-Civ, U.S. District Court for the Southern District of
Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 5, Sept. 14, 2011.
21
554 U.S. 570, 635 (2008).
22
130 S.Ct. 3020, 3047 (2010).
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continue to own, possess, or use firearms.”23 In this context, it is worth noting that the Heller
majority itself made it clear that its analysis of the right does not “suggest the invalidity of laws
regulating the storage of firearms to prevent accidents.” This language indicates that even laws
requiring that patients follow the advice of their physicians about safe storage of firearms would
not violate the Second Amendment.
The provision of safety counseling by physicians, who are private, not governmental
actors, to patients who are entirely free to ignore the physicians’ advice, raises no serious Second
Amendment issue. Nor should state gag rule legislation be viewed as necessary to vindicate the
right recognized in Heller and McDonald.
For these reasons, the ABA opposes physician gag rule legislation.
Respectfully submitted,
The Honorable William D. Missouri
Chair, ABA Standing Committee on Gun Violence
August 2012
23
Wollschlaeger et al., v. Farmer et al., No. 11-22026-Civ, U.S. District Court for the Southern District of
Florida, Order Granting Plaintiffs’ Motion for Preliminary Injunction at 6-7, Sept. 14, 2011.
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GENERAL INFORMATION FORM
Submitting Entity:
Standing Committee on Gun Violence
Submitted By: Hon. William D. Missouri
1.
Summary of Resolution(s).
The resolution opposes governmental actions and policies that would limit the rights of
physicians to inquire of their patients whether they possess guns and how they are secured in the
home or that limit the rights of physicians to counsel their patients about the dangers of guns in
the home and safe practices to avoid those dangers.
2.
Approval by Submitting Entity.
Standing Committee on Gun Violence approved this resolution on March 15, by conference call.
3.
Has this or a similar resolution been submitted to the House or Board previously?
No
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
This resolution is consistent with the ABA’s historic position of treating gun violence as a pubic
health measure, see, e.g., support of legislation to encourage gun safety education (1991) and call
for comprehensive approach to addressing gun violence by young persons in school (1998).
The resolution is also consistent with prior resolutions on related topics, specifically a policy
adopted by the House of Delegates in 2005 (MY) which opposed governmental actions and
policies that interfere with patients’ abilities to receive from their healthcare providers, including
healthcare professionals and entities, in a timely manner: (a) all of the relevant and medically
accurate information necessary for fully informed healthcare decision making; and (b)
information with respect to their access to medically appropriate care, as defined by the
applicable medical standard of care.
Finally, the resolution is consistent with and complimentary to existing Association policy
regarding gun violence and federal and state firearms laws. Since 1965, the ABA House of
Delegates has considered and approved over a dozen policy recommendations aimed at
preventing gun violence, including those to ban assault weapons, prohibit firearm possession by
domestic abusers, regulate guns as consumer products and limit gun sales to minors.
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5.
What urgency exists which requires action at this meeting of the House?
While there is no urgency, a federal court action is currently pending regarding a Florida statute
that would restrict physician’s from inquiring of patients about the presence of guns in the
household.
6.
Status of Legislation. (If applicable)
Not applicable.
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
This is primarily a state matter and the Standing Committee on Gun Violence will make this
information known to state legislative bodies that may contemplate, following Florida’s lead, to
enact related legislation. The Committee is already planning to conduct a CLE program at the
2012 annual meeting on this topic, and will likely disseminate educational material on this matter
at later date.
8.
Cost to the Association. (Both direct and indirect costs)
There are no direct or indirect costs to the Association anticipated as a result of its adoption of
the Resolution as ABA policy.
9.
Disclosure of Interest. (If applicable)
Committee member Dennis Henigan is an attorney with the Brady Center to Prevent Gun
Violence. The Center is representing the petitioners in the federal action challenging the Florida
statute that restricts health care practitioners from discussing the presence and maintenance of
guns in the home. Please note that the decision by the Committee to submit this Resolution was
unanimous.
10. Referrals.
The Standing Committee on Medical Professional Liability and the Commission on Domestic
and Sexual Violence have agreed to cosponsor this Resolution. It will also be referred to Tort
Trial and Insurance Practice, Family Law, Individual Rights and Responsibilities, Litigation,
Criminal Justice Section, Health Law, and Commission on Youth at Risk.
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11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Hon. William D. Missouri, Chair, Standing Committee on Gun Violence
Circuit Court 7th Judicial Circuit
PO Box 422
Upper Marlboro, MD 20773
301-952-3623
wmissouri@co.pg.md.us
Jin Kim, Staff Liaision
ABA, 740 15th Street NW
Washington, DC 20005
202-662-1505
Jin.kim@americanbar.org
12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Hon. William D. Missouri, Chair, Standing Committee on Gun Violence
Circuit Court 7th Judicial Circuit
PO Box 422
Upper Marlboro, MD 20773
301-952-3623
wmissouri@co.pg.md.us
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The resolution opposes governmental actions and policies that would limit the rights of
physicians to inquire of their patients whether they possess guns and how they are secured in the
home or that limit the rights of physicians to counsel their patients about the dangers of guns in
the home and safe practices to mitigate those dangers.
2.
Summary of the Issue that the Resolution Addresses
Florida recently enacted a statute that prohibits physicians practicing in that state from inquiring
or seeking information from patients regarding the presence of guns in the home. The Act is
currently under challenge in court action, but introduction of similar legislation in other states is
very likely. The resolution supported by its background report articulates legal and policy
reasons to oppose enactment of similar legislation or establish such policies by administrative
action.
Physician’s inquiries of their patients about firearms are generally routine and part of standard
recommended medical protocols. For medical practitioners to meet their preventive care and
safety counseling responsibilities, they must be able to discuss a broad range of topics with their
patients related to known risk factors. This unfettered access allows doctors to adequately assess
and address these factors with their patients. Risk factors that may be discussed vary depending
on the age of the patient, but for adults often include alcohol consumption, illicit drug use,
smoking, diet, and exercise; pediatricians often discuss wearing seat belts and bicycle helmets,
the potential dangers of backyard swimming pools, and the need to securely store household
cleaners and toxins. Firearms in the home are another known risk factor that doctors may choose
to discuss with their patients or the parents of young patients. These discussions may focus on
the known dangers of keeping guns in the home and the importance of keeping firearms
unloaded and stored separately from ammunition to mitigate some of these risks. The practice of
medicine requires a free and open exchange of questions, answers, and information between
patients and their health care practitioners. For that reason, both state and federal law protect the
confidentiality of such conversations.
Practitioners must engage in highly personal exchanges with their patients about private,
confidential topics, so patients understand the risks to themselves, their families, and their
children arising from decisions they make and conduct they engage in. Gag rules directly
interfere with, and intrude upon, health care practitioners’ ability to engage fully in these
consultations by severely restricting inquiries about a significant and preventable risk to patients.
The First Amendment does not permit individual states to require health care practitioners to
conform their communications with their patients to the state’s preferences. The ABA has
historically opposed legislation to establish a similar “gag rule” to prevent physicians to inquire
or discuss abortion issues with patients and this resolution calls for opposition on a similar basis
to efforts to ban physician discussion or inquiry regarding safe practices related to firearms. By
restricting the free and open exchange of information between a physician and patient in this
manner, gag rules violate the First and Fourteenth Amendments to the U.S. Constitution.
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3.
Please Explain How the Proposed Policy Position will address the issue
The proposed policy would put the Association on record in support of the principles underlying
the accepted practice in the great majority of states and in opposition to recent efforts to enact
legislation to restrict physical discussion with patients of safety practices and risks of firearms in
the home.
4.
Summary of Minority Views
None.
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