Part of the "Fourth Annual Health Law Year in P/Review" held at Harvard Law School on January 29, 2016. This symposium featured leading experts discussing major developments during 2015 and what to watch out for in 2016. The discussion covered hot topics in such areas as health insurance, health care systems, public health, innovation, and other issues facing clinicians and patients. This year's Health Law Year in P/Review was sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, the New England Journal of Medicine, Health Affairs, the Hastings Center, Harvard Health Publications at Harvard Medical School, and the Center for Bioethics at Harvard Medical School, with support from the Oswald DeN. Cammann Fund at Harvard University. Visit our website for more information: http://petrieflom.law.harvard.edu/events/details/fourth-annual-health-law-year-in-p-review.

1. DOCS VS. GLOCKS:
PHYSICIANS, FIREARMS,
FREE SPEECH, AND THE
REGULATION OF PUBLIC
HEALTH
Wendy E. Parmet
Northeastern University School of Law

2. GUNS AND PUBLIC HEALTH
 2013: At least 100 children 14 and under died from
unintentional shootings.
 Each accidental gun fatality  13 treated in emergency
rooms for accidental shootings
 1990 – 2005: Firearms were the most common weapon
used in intimate partner homicides.
 1994: The mean medical cost of $17,000 per gun injury
produced $2.3 billion in lifetime medical costs with
taxpayers paying $1.1 billion.
 2010: With over 38,000 suicides in America, more were
committed with a firearm than all other methods
combined.

3. A PUBLIC HEALTH APPROACH TO
GUN VIOLENCE
 Increase research
 Apply a risk reduction strategy to make firearms less dangerous
 Integrate gun safety into primary care/prevention:
 Ask patients about firearms as part of “childproofing”;
 Educate patients and encourage education of children about
firearms;
 Routinely remind patients to use firearm locks, store firearms under
“lock and key,” and to store ammunition separately from firearms.

4. THE PUBLIC HEALTH PARADOX
Does the state’s power to regulate public health
enable it to ban/block public health efforts aimed
relating to gun safety?
 Pushback –
 Dickey Amendment
 ACA ban on asking about guns for wellness checks
 Can states use their public health powers to preclude adopting
a public health approach?

5. FLORIDA FIREARM OWNERS’ PRIVACY ACT
(“FOPA”)
1. The inquiry provision: directing doctors to refrain
from making irrelevant written or oral inquiries about
gun ownership
2. The record-keeping provision: prohibiting doctors
from intentionally entering irrelevant gun ownership
information in a patient’s medical records
3. The harassment provision: directing doctors to
refrain from unnecessarily harassing a patient about
gun ownership during examinations
4. The discrimination provision: prohibiting
discrimination against a patient based solely on the
patient’s gun ownership

6. WOLLSCHLAEGER V. FLORDIA
 Claims:
 First Amendment
o Void for Vagueness
o Overbreadth
 Injunction Issued by Dist.
Court, 880 F. Supp.2d 1251 (S.D. Fla. 2012)

7. DEFINING RELEVANCE
 FOPA bans only “irrelevant” gun talk but
 By requiring individualized determination as to relevance,
FOPA rejects a public health approach to guns.
 Relevance/Irrelevance distinction is utilized to prohibit
necessary dialogue for the determination of individualized
needs.

8. THE STATE DECIDES WHAT’S “PUBLIC
HEALTH/GOOD MEDICAL CARE”
“To define the standards of
good medical practice and
provide for administrative
enforcement of those
standards is well-within the
State’s long-established
authority to regulate the
professions.” Wollschlaeger I.
“You might just as well
say…that ‘I see what I eat’ is
the same thing as ‘I eat what
I see’!...
…You might just as well
say…that ‘I breathe when I
sleep’ is the same thing as ‘I
sleep when I breathe’!” Alice
in Wonderland

9. WOLLSCHLAEGER: EVOLVING
STANDARDS
Unprotected
Professional Speech Strict Scrutiny
July 25, 2014:
760 F.3d 1195
(11th Cir.)
July 28, 2015:
(sua sponte),
797 F.3d 859
(11th Cir.)
December 14,
2015: (sua
sponte) , __ F.3d
__ (11th Cir.)
Intermediate Scrutiny
Petition for
rehearing en
banc
Petition for
rehearing en
banc
Petition for
rehearing en
banc

10. ROUND 1: IT’S NOT SPEECH
“Any speech that the Act reaches takes place entirely
within the confines of the physician-patient relationship …
and so is entirely incidental to the Act’s regulation of
physicians’ professional conduct.”
 Hence FOPA is subject to the rational basis test.

11. ROUND 2: MAYBE SPEECH; BUT
NOT FULLY PROTECTED

12. ROUND 2: FOPA SURVIVES
INTERMEDIATE SCRUTINY*
“ ‘Simple common sense’
furnishes ample support for
the legislature’s decision.”
*Did not apply to discrimination provision

13. ROUND 3: STRICT SCRUTINY,
Content-based regulations of MD speech
require either intermediate or strict
scrutiny*
FOPA is narrowly tailored to further the
compelling state interest of protecting 2nd
Amendment rights.
*Did not apply to discrimination provision

14. SECOND AMENDMENT “CHILL”
 MD speech is especially persuasive
 Persuasive speech about guns chills gun
rights!
 Hence FOPA survives strict scrutiny
 Does this mean the more credible the
source, the greater the state’s ability to
suppress speech?

15. WAS FOPA NARROWLY
TAILORED
 There was NO evidence that physician speech interfered
anyone’s access to firearms.
 There was no evidence that the state had considered
any less restrictive alternative.
 “The majority’s latest opinion is its most dangerous. It
represents the first time, to plaintiffs’ knowledge, that
any court has upheld under strict scrutiny a statute
restricting truthful, non-coercive speech about lawful
conduct because the listener might find the speech
persuasive.” Petition for Rehearing en banc, Jan. 4,
2016.

16. IMPLICATIONS FOR…
 The public health approach to gun violence?
 The government’s ability to regulate physician speech?
 Similar laws in Montana and Missouri
 Abortion/informed consent cases
 Conversion therapy cases
 Fracking cases