Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:
A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:... 22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.
First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.
Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.
The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech isues, outside the context of advertising, regading professional regulation.
Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.
The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.
I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.
Let me address some of the arguments which commenters offered regarding the bill.
Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.
The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.
However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.
One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)
Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.
Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disamament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could.
Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and would be less safe in their homes as a result. There is sufficient evidence for a reasonable legislator to conclude that physician anti-gun counseling is junk science at its worst. (Click here for one example.) Reasonable legislators can differ, of course; I am just pointing out what a reasonable legislator could vote for the bill.
Another issue raised by commenters was gun registration. Again, in the 1910 model of medical practice, records about patient gun ownership would be widely diffused among many independent physicians. The record-keeping by individual physicians would not amount to a widespread registration system.
In contrast, today there is a very powerful trend towards the centralization of medical data. As some commenters pointed out, the centralizing trends are encouraged by insurance companies, health care corporations, and the government. Physician questioning and about firearms usually takes place in the context of the physician filling out a survey which becomes part of the patient's permanent medical record. There are many circumstances under which health survey data by a physician may be centralized by entities other than the physician. Federal law makes patient records available to law enforcement authorities under some circumstances.
There is no denying the historical facts that in the United States and in other countries, gun registration records have sometimes been used for confiscation. A person who wants strong protection the right to arms would generally favor preventing the accumulation of data which might facilitate gun confiscation, even if the risk of gun confiscation at present is very low.
Putting the confiscation risk aside, registration is, in itself, harmful to the right to arms. Even if there were no possibility of confiscation, constitutionally-sensitive people would oppose the creation of centralized lists regarding any aspect of a person's exercise of her constitutional rights. You shouldn't be put on a government list--or on the list of a big corporation which is heavily funded by the government and whose records are readily subject to government inspection--just because you exercised a constitutional right. That is one reason that Congress in 2003, and in 1986, 1968, and during World War II enacted legislation to block federal gun registration.
Again, I'm not saying that a legislator must be so constitutionally conscientious that she vigilantly blocks every form of gun registration. I'm saying that a reasonable legislator can be so conscientious, just as another legislator could be so conscientious about free speech as to oppose even constitutionally-valid regulation of licensed professionals.
Finally, there is the broader social question of whether legislatures or medical licensing boards should attempt to impose any controls about physician counseling (including counseling in a coercive context) about the exercise of other lifestyle choices. If there is some evidence that religious people are healthier and live longer, is there anything wrong with physicians encouraging patients to go to church? If the weight of evidence suggests that moderate drinking is healthier than abstention, then would we object if a physicians group working with a pro-drinking lobby (just as the American Academy of Pediatrics works with gun prohibition groups) succeeds in encouraging family practitioners to tell their patients "Drink up! It's good for you."
Persons who place free speech values first in their legislative priorities would oppose almost all restrictions on physician counseling--even if the athiest patient in Alabama feels oppressed when her HMO doctor tells her "You ought to start going to church. It's healthy."
I respect the speech-protective values of opponents of the Virginia bill. And I also see that proponents of the bill had good arguments about other constitutional values, public safety, and medical ethics. Perhaps the Virginia medical ethics bill is an occassion where both sides should agree that there were reasonable arguments for both positions.