Some privacy, please.

Photographer: Joe Raedle/Getty Images

Doctors' Right to Try to Convert Gun Owners, But Not Gays

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Should the First Amendment protect what doctors can say to their patients in the privacy of the examining room? Weighing state prohibitions on gay conversion therapy, liberals have tended to think the state should be able to regulate medical treatment without worrying about free speech.

Now the shoe’s on the other foot: Florida’s ban on physicians asking patients about gun ownership puts liberals in the position of wanting to protect the doctor-patient relationship. The U.S. Court of Appeals for the 11th Circuit upheld the Florida “docs vs. Glocks” law this week on the ground that the state’s interest in protecting gun ownership outweighs physicians’ free-speech interests -- a result sure to trouble liberals.

This decision is problematic in its application of free-speech law, as First Amendment scholar Eugene Volokh points out. But what’s really wrong is our whole framework in using free speech to analyze communication between a medical professional and a patient.

That relationship should be evaluated through a distinct constitutional lens: the lens of privacy. And when doing the privacy analysis, we need to draw a clear line between the state’s compelling interest in regulating the practice of medicine on safety grounds and its far less important interest in shaping patient-physician interactions to comply with the government’s preferred social values.

The Florida law is a good concrete case to see why the First Amendment shouldn’t control -- and why privacy should. The legislative justification was the assertion that “medical personnel were asking unwelcome questions regarding firearm ownership, and that constituents faced harassment or discrimination on account of their refusal to answer such questions or simply due to their status as firearm owners.” The evidence for this assertion was, shall we say, anecdotal. In fact, the law’s passage reflected the familiar lobbying strength of the National Rifle Association.

The law says in part that physicians can’t ask whether a patient or the patient’s family owns firearms unless the information is “relevant to the patient's medical care or safety.” It also prohibits entering gun-ownership information to the medical record unless it’s similarly relevant. The punishment is disciplinary action by the Florida Board of Medicine.

The 11th Circuit analyzed the issue in terms of the doctors’ free speech. It first identified a category that it called “professional speech.” It declined to decide whether the correct standard of review was so-called intermediate scrutiny, which requires an important government interest and a means of enforcement that’s substantially related to it, or strict scrutiny, which requires a compelling government interest and narrowly tailored means. The court avoided the issue by saying that, even if strict scrutiny were to be applied, the law would survive it.

The court held that protecting the Second Amendment right to bear arms was a compelling government interest. And it said the prohibitions on asking and recording about gun ownership were narrowly tailored to serve that interest.

This whole analysis misses the point. The reason doctors ask patients about gun ownership is that, according to one school of public-health thought, gun ownership poses risks of injury that fall within the physician’s Hippocratic obligations to address. On this view, asking about gun ownership is like asking whether a patient smokes or is exposed to harmful chemicals at work. The goal of the physician is to make the patient aware of the health risks and provide advice about how those risks can be mitigated, for example by keeping guns locked away or maybe not owning them at all.

In other words, doctors who ask their patients about guns are practicing medicine within the framework of treatment as they understand it. As with any treatment, a patient is free to decline it or to go to a different doctor who sees the medical issues differently. But the interaction consists of much more than simply “professional speech.” It amounts to the practice of medicine itself.

The practice of medicine between a licensed physician and a willing patient deserves constitutional protection -- because it’s at the heart of our right to privacy as the U.S. Supreme Court has interpreted it since at least Roe v. Wade in 1973. The right to privacy includes the right to autonomous control of your own body. Getting treatment from a doctor is crucial to how you control your physical and emotional self. This isn't rocket science, and it isn’t new constitutional law. It's constitutional common sense.

Of course, the government has a compelling interest in regulating the practice of medicine. But the nature of that interest is to make sure that medicine is practiced safely and responsibly so as to protect patients from quackery and quacks -- that is, unproven medical techniques and dangerous doctors.

The government doesn’t have a compelling interest in inserting legislators’ political or moral values into the private zone of medical treatment.

And that’s exactly what the Florida law does. It’s intended to interfere with the physician’s ability to ask health-related questions about guns, because the legislature is saying that in its view, those aren’t medically relevant. But the legislature isn’t in a good position to judge that these inquiries aren’t medically relevant -- especially because many physicians think otherwise, and some patients might well agree.

This brings us back to the difficult question of gay conversion therapy, which might be said to belong within the same zone of privacy. The distinction rests on the state’s legitimate authority to prohibit harmful courses of treatment. When the state is banning a treatment for medical reasons, it should have to prove that it’s genuinely dangerous and rejected by the medical community as a whole. In the case of gay conversion therapy, that's almost certainly the case.

So if you think that California should’ve been able to ban gay conversion and that Florida shouldn’t be able to ban doctors from asking about guns, you’re not being inconsistent. You’re recognizing the difference between regulating the practice of medicine and interfering in the physician-patient relationship. Free-speech analysis obscures this difference. Privacy clarifies it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net