By Dennis Cooley, MD, FAAP
Immediate Past President
It was just two months ago that we were all shocked by another act of violence in this country. This time the violence resulted in mass murders occurring at Sandy Hook Elementary School in Newtown, Connecticut. This brought to the surface once more the arguments concerning firearms violence and how to best stop it. These arguments are not new, but seemed to take on a new emphasis because of the large number of children killed (20 along with 6 adults) and the fact it occurred in a school. As the rhetoric on this issue has increased, blame is being scattered around like the Kansas topsoil during the Dust Bowl. Finger pointing has taken a new art form. Increased number of calls for restrictions on firearms has been made. This has led to certain groups of people and organizations fearing what they perceive as a loss of their second amendment rights.
But this article is not going to center on the second amendment and its interpretation, rather it is about another amendment -the first amendment- and how these arguments over the second amendment are now threatening physicians’ rights to free speech.
How have the arguments on gun violence affected physicians’ first amendment rights? To answer this question, we need to go back to a law passed in Florida in 2011. With the backing of the NRA, Florida passed a law threatening significant disciplinary actions for a physician that asked about the presence of guns within a child’s home and play areas. This law received much publicity and was challenged in the courts. In late June 2012, US District Judge Marcia G. Cooke (Southern District of Florida-Miami) issued a ruling permanently enjoining the Florida law. Not one to give up easily, the state of Florida has appealed the ruling. Numerous national physician organizations including the American Academy of Pediatrics, the American Medical Association, the American Academy of Family Physicians, the American Academy of Child and Adolescent Psychiatry, the American Academy of Orthopedic Surgeons, the American College of Surgeons, the American College of Preventive Medicine, the American College of Obstetricians and Gynecologists, and the American Psychiatric Association have signed on to an amicus brief supporting the lower court’s ruling.
Meanwhile, in 2012 three other states: Oklahoma, Tennessee and West Virginia, all introduced bills that would restrict physician firearm counseling. These bills all failed to pass their respective legislatures.
Now again calls for the restrictions of firearms has taken the forefront after the tragedy at Sandy Hook. In response, HB 2199 is introduced into the Kansas Legislature. It is titled the Second Amendment Protection Act. Pediatricians just like other members of the public have different views on this issue. I am not going to discuss the merits of this bill with the exception of one small paragraph. Section 9 of this bill will make it illegal for physicians other than psychiatrists to ask about firearms.
Section 9 of HB2199 reads:
“No physician, other than a psychiatrist, shall inquire of any patient in conjunction with obtaining the patient’s personal information and medical history, whether the patient has any firearms in such patient’s home or on such patient’s property and shall not require such information before providing treatment. “
I assume the exclusion of psychiatrists was a concession on the role mental health problems play in gun violence. Obviously, the authors don’t understand that psychiatrist are not the only physicians to deal with mental health disorders and that primary care physicians commonly manage depression and many other mental health problems. It is also interesting that as this is written it doesn’t limit a social worker or other mental health provider or for that matter any nurse practitioner from asking these questions. Only non-psychiatrist physicians.
It seems hard for me to believe that anyone cannot see this as a violation of the first amendment. Certainly a federal judge agrees with this as she ruled to permanently enjoin the Florida Law. I bet if you took a poll of legal experts almost all would agree with this interpretation which makes Florida’s action all the more curious. So far they are estimated to have spent $100,000 on defense. A small amount in a state’s budget to be sure, but those costs will rise with each new appeal. And because of the nature of this lawsuit if they lose they will be required to pay the legal fees of the plaintiffs. So far plaintiff’s attorneys are asking for $750,000. While that doesn’t mean they will receive that much, with each new appeal those fees will continue to rise. So Florida is facing some potentially significant costs if it continues with the appeal process despite the very unlikelihood of winning. I can assure you if HB2199 were to pass in Kansas there will be similar lawsuits.
What about the precedent of having the legislature tell physicians what they can discuss with patients? I can foresee if this bill were to pass other topics could become off limits. Is contraception next?
And isn’t it ironic, the groups who protest the most about government interference in our lives are the same groups now asking the government to intrude in the confidential relationship between patient and physician?
On February 20, I attended one of the days of hearings on HB2199. The KAAP submitted written testimony, but we did not provide any oral testimony. I went at the invitation of Jerry Slaughter with the Kansas Medical Society. KMS did provide both written and oral testimony asking for Section 9 to be removed. I was there to answer any questions the committee members might have concerning why it is important for physicians to be able to make inquiries on firearms.
What I took away from the hearing is that proponents are afraid. They are mistrustful and in extreme cases downright antagonistic about government. They truly believe that the government of the United States is bent on taking away their rights and liberties and this will start with the government taking away firearms. While this may seem preposterous to you, I think it is a mistake to think that some very reasonable, educated people don’t share these beliefs. In many ways, this is similar to vaccine hesitancy which I also believe is based on fear. When emotions fostered by these fears enter into the discussion, data and facts and logic take a back seat.
What will be the outcome of HB2199?
I think the bill in some form will pass the House and move on to the Senate. With any luck Section 9 will be removed or an amendment such as the one offered by KMS that doesn’t limit physician’s inquiries concerning firearms will replace it. I will continue to follow this bill and keep you updated on its progress.
