FL GAG Rule, Wollschlaeger v. Scott

Florida, June 6, 2011

In 2011, Florida Governor Rick Scott signed a bill making Florida the first state in which it was illegal for any physician to “ask questions concerning the ownership of a firearm” or “harass...a patient about firearm ownership during an examination.” The stated purpose of the law was to protect patient “privacy.” Under the law, doctors could be censored, fined, or penalized through the loss of their license to practice if the Florida Board of Medicine found they violated the law.

The fight over “Docs vs. Glocks” started when a pediatrician in Ocala asked the mother of a young child whether she kept guns in the home. She refused to answer, saying, “whether I have a gun has nothing to do with the health of my child.” But, as Brady stated in our suit, 65 children and teenagers are shot every day in America, and eight of them die; one-third of American homes with children under 18 have a firearm in them; and more than 40% of those households store their guns unlocked, with a quarter of those homes storing them loaded. So, guns do have something to do with the health of America’s children.

Pediatricians are trained (and explicitly advised by the American Academy of Pediatrics) to question parents about the presence of open containers of bleach, swimming pools, and balloons. It’s part of their job to educate parents about potentially lethal dangers around the home. Why, then, is an inquiry into firearms the threat to personal privacy?

Representing a number of Florida doctors, Brady and pro bono partner law firm Ropes & Gray brought suit to challenge the law under the First Amendment. We argued that, under the First Amendment, doctors should have the right to give their best advice to patients when it comes to safety. This individual right is especially important in this context, as it ensures the safety of individuals, families, and communities in Florida.

The case resulted in a landmark decision by the Eleventh Circuit striking down the law as unconstitutional. Even more, Florida was forced to pay over one million dollars in attorneys’ fees because the law was found to violate constitutional rights. This decision and award was a message to states to think twice before enacting or defending laws that put lives -- especially children’s lives -- at risk just to boost the gun lobby.