On Feb. 16, 2017, the Eleventh Circuit Court of Appeals struck down parts of a Florida law that prohibited doctors from asking their patients if they have firearms in their homes, noting the answers in medical records, or "harassing" patients about firearm ownership or possession, because those provisions were content-based regulation of speech by the government, which is prohibited by the First Amendment.
However, the appellate court upheld that the portion of the law that prohibits doctors and medical professionals from discriminating against patients solely because of firearm ownership or possession. When the term "discriminate" is interpreted to apply to non-expressive conduct, "such as failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms," the statute avoids regulating speech. With that limitation, the court declined to strike that portion of the law.
The case was heard by all the judges who sit on the Eleventh Circuit Court of Appeals, which is referred to as an en banc proceeding. The Eleventh Circuit is the federal court with appellate jurisdiction for Florida, Georgia and Alabama federal courts. The statute was challenged by doctors immediately after being passed in 2011. A federal district court in South Florida found the statute unconstitutional, but a three-judge panel of the Eleventh Circuit reversed. The entire en banc court then heard the case, resulting in the ruling.
Thus, doctors can now again include questions about firearm ownership and possession in their patient intake questionnaires, and keep that information in the patients' medical records. This court opinion will allow doctors and medical providers to follow the standards recommended by the American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians, about identifying and counseling patients about potential hazards in the home, even when the potential hazards are firearms. Notwithstanding the patients' answers, doctors cannot treat patients differently from other patients merely because they own or possess firearms.