En banc appeals court strikes down ban on doctor gun discussions, with two majority opinions

[rug]

POSTED FEB 17, 2017 08:00 AM CST
BY DEBRA CASSENS WEISS

An en banc federal appeals court on Thursday struck down a ban on doctors discussing guns with patients.

- snip -

Judge William Pryor, who was said to be on a shortlist of judges President Trump had considered for the U.S. Supreme Court, wrote a concurrence. “I write separately to reiterate that our decision is about the First Amendment, not the Second,” he said. The Second Amendment right to possess weapons “does not give the government license to violate the right to free speech under the First Amendment,” he said.

“Without the protection of free speech,” he wrote, “the government might seek to ban discussion of religion between doctor and patient. The state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional. …

“Could a state prohibit a pro-life doctor from discouraging a patient from aborting her unborn child? Could a state prohibit a doctor from advising a patient about sex-reassignment surgery? Could a state prohibit a doctor from advising parents to vaccinate their children? Could a state prohibit a doctor from recommending abstinence or encouraging safe sexual behavior? What about organ donation or surrogacy or terminal care? What about drugs or alcohol or tobacco? Could a state legislature prevent a doctor from explaining the risks or benefits of a vegan diet? Or prevent a doctor from explaining the risks or benefits of playing football? This type of thought experiment should give us pause. …

“The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.”

http://www.abajournal.com/news/article/with_two_majority_opinions_en_banc_appeals_court_strikes_down_ban_on_doctor

http://media.ca11.uscourts.gov/opinions/pub/files/201214009.enbc.pdf

[Bretton Garcia]

1. Interesting approach: allow any religious or non religious views

Currently, Texas laws require docs to deliver a short speech on the "beating heart" of an embryo, to any woman who wants an abortion.

It is clear this forced-speech bill was backed primarily by religious groups.

Here though, no doc would any longer be required to deliver these religious speeches.

[rug]

2. That's right. A useful decision even if written by a potential trump nominee.

[Bretton Garcia]

3. A reaffirmation of free speech appeals to both sides

It's funny that it might back docs supporting guns. Which gets support in Florida But it also allows .. docs not supporting antiabortionists.

But that's freedom of speech. It serves all sides. And not just one.

Note though one potential constraint on both: they should support things they believe are "medically advisable." Albeit even "experiment"ally.

Some Texas OBGYN's have been suggesting something like this.

[Jim__]

4. If I read this correctly, one of the en banc decisions was 9 - 2 to strike down the law.

The panel had been 2 - 1 to uphold the law.

Good to see that law struck down.

[rug]

5. The three judges wrote three different opinions.

The state officials appealed, and a divided panel of this court
issued three opinions—each using a different First Amendment standard of
review—upholding the challenged provisions of FOPA. See Wollschlaeger v.
Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II);
Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger
III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015)
(Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument
in June of 2016.

Without looking I can't tell if any of them joined in the opinion of the others. This establishes clarity.

[Jim__]

6. I hadn't seen that. Thanks. - n/t

[Bretton Garcia]

7. Scanning it? Looks like:

1) Docs shouldn't have standard written forms asking everybody about guns.

2) But where guns might worsen a patient's situation, oral questions are allowed.

3) And maybe? Written guidelines should not attack gun ownership per se.

Though on point 3? I'd note there's a subjective or variable or open element even here. Since docs might agree that medically, a) this or that individual case of patient's owning a gun is bad. Or b) even conceivably ... all cases of gun ownership.

What if docs concluded that say, guns are hazardous to our health, generally?

Anyone could get a sudden case of lead poisoning, from having one of these dangerous attractions around the house.

: )