What Are Physician Gag Laws?

Physician gag laws are laws that restrict a physician from asking their patients specific questions. These laws date back to 2011 when the state of Florida passed a law prohibiting doctors from asking patients about gun ownership.

Physician gag laws can create dilemmas for both physicians and patients. These laws can limit the information a patient receives about their health. They also determine how medical professionals care for their patients. They can affect patients' quality of care and the doctor-patient relationship.

Physician gag laws began with the law discussing gun ownership with their patients. But these laws are not limited to firearms or primary care physicians. They also address topics such as abortion and fracking.

This article provides more information about physician gag laws and challenges to these laws.

Physician Gag Laws on Firearms

Firearm ownership alone is not bad. The Supreme Court has affirmed the Second Amendment right to own a firearm. But, poor safety practices increase the risk of harm.

According to the American Academy of Pediatrics, gun violence is the leading cause of death for children and young adults. This academy is a professional organization committed to children's health and well-being. Its members believe physicians play a role in protecting children from gun violence.

Professional medical organizations, like the American Academy of Family Physicians, the American Academy of Pediatrics, and the American Medical Association (AMA), recognize gun violence as a public health issue. The American College of Physicians joined these organizations in recognizing gun violence as a public health crisis. National organizations such as the Gifford Law Center agree with this assessment.

Physicians often use "anticipatory guidance" to ask about gun ownership in the parent's home. These questions help pediatricians shape their counseling to parents. This counseling can include firearm safety and prevention of firearm-related injuries. The goal of counseling is to reduce the number of firearm deaths among children by counseling certain gun owners.

Florida passed the Firearm Owners Protection Act (FOPA) in 2011. This Florida law prohibited physicians from asking patients about gun ownership. It was a response to an incident between a Florida pediatrician and a Florida mother. As part of a routine baby exam, the pediatrician asked the mother if there were any guns in her home. She declined to answer, and the physician gave her 30 days to find a new pediatrician.

Before Florida's 2011 gag rule, physicians asked patients about their gun ownership. Asking this question helped physicians assess the risks their patients faced at home. Physicians could then counsel patients on firearm safety.

A federal appeals court overturned several provisions of FOPA in 2017. The court determined the law restricted a physician's First Amendment rights. This was a tremendous victory for healthcare professionals' ability to provide medical care. Yet, it did not stop states from attempting to pass similar laws.

Missouri Firearms Gag Law

In 2014, Missouri passed a law that took a different path on this topic. Instead of prohibiting physicians from asking about firearms, this law said the state couldn't force physicians to ask about or disclose firearm status. This law does not forbid medical professionals from talking about firearm safety. It does prevent them from using electronic medical programs that need such information.

Laws like Missouri's protect their citizens' privacy. They do this by restricting their physician's ability to provide care. Preventing doctors from asking about firearms impacts their ability to care for their patients.

These laws may infringe on a physician's ethical obligations. According to the Centers for Disease Control and Prevention (CDC), guns were part of over 50% of suicides in 2021. For example, psychiatrists often ask patients if they have access to firearms. The stakes are higher for patients struggling with depression or suicidality. They have an ethical duty to make this standard inquiry.

Abortion Gag Laws

Physician gag rules have also applied to Title X at the federal level. Title X is a federal program providing family planning funding. Politicians have used federal law to restrict the information patients receive. This includes abortion. Federal gag rules targeting abortion have prevented physicians from referring patients for abortions. The Biden-Harris administration reversed these rules in 2021.

Many states have laws restricting reproductive health providers' speech. One example is State-mandated counseling. Physicians had to disclose specific information to women seeking abortions. Under these laws, providers must tell patients that a fetus can feel pain. They must also tell women that there are links between abortion and breast cancer. Opponents argue these claims are not supported by medical evidence.

Another example is laws requiring abortion providers to perform a pre-abortion ultrasound. Under Texas law, healthcare providers must explain sonogram images before a pregnant woman can get an abortion. Failure to comply is a misdemeanor. Opponents of these rules argue that the intent is to discourage women from abortion. There is no medical reason a pregnant person needs to see or hear pre-abortion ultrasound.

Gag Laws on Fracking

Some state laws limit the information doctors can share about the chemicals used in fracking. Doctors have to sign confidentiality agreements to get access to this information. Breaching the agreement would open the doctor to a civil lawsuit. For example, violating North Carolina's law related to this kind of disclosure is a Class 1 misdemeanor.

Challenges to Physician Gag Laws

Doctors have challenged laws that restrict the practice of medicine. Advocacy groups objected to Florida's Firearms Owners' Privacy Act. This law limited what physicians and medical staff discuss with their patients about gun ownership. Led by Dr. Bernd Wollschlaeger, they sued the State of Florida in district court. They argued the law violated the First Amendment. The 11th Circuit Court of Appeals struck down parts of the law in 2017.

The court disagreed with sections of the law that prohibited questions about patient gun ownership. The court upheld a provision that bars discrimination against patients who own firearms.

The court based its decision on the First Amendment. This is because the law violated physicians' free speech rights. Florida physicians and medical staff can ask patients about their firearm status. They can also discuss gun safety if necessary.

Learn More About Physician Gag Laws from a Local Attorney

Physician gag laws can impact patients' rights and healthcare decisions. These laws vary from state to state. Talk to a local healthcare attorney to learn more about your state's physician gag laws or other healthcare laws.