Professor Paul Krugman Called the NRA an Insane Organization — and Former Pediatrics Assistant Professor Helena Rho Tells Us about the NRA’s Legislative Attempt to Prevent Pediatricians from Asking about Gun Ownership

05 February 2013

Citation — to Paul Krugman’s statement

Mackenzie Weinger, Krugman: NRA an 'insane organization', Politico Now (03 February 2013)

Citation — to Helena Rho’s article

Helena Rho, The Pediatricians vs. the NRA: How the gun lobby is trying to gag doctors from talking about kids and guns, Slate (01 February 2013)

Theme and initial premise — evil often comes in the disguise of determined ignorance

The deliberate evasion of truth is one form of moral insanity.

Paul Krugman’s foundational statement regarding the NRA’s insanity

He said, on This Week with George Stephanopoulos:

[T]here are plenty of gun-owners who are fine.

But the lobbying groups, the NRA is now revealed as an insane organization, and that matters quite a lot.

What strikes me is we've actually gotten a glimpse into the mindset, though, of the pro-gun people and we've seen certainly Wayne LaPierre and some of these others.

It's bizarre.

They have this vision that we're living in a ‘Mad Max’ movie and that nothing can be done about it, that America cannot manage unless everybody's prepared to shoot intruders, that the idea that we have police forces that provide public safety is somehow totally impractical, despite the fact that, you know, that is, in fact, the way we live.

Former pediatrics assistant professor Helena Rho coincidentally provided evidence that fleshes out Dr. Krugman’s contention

Consider her facts. First:

Guns kill kids.

In 2010, according to the Centers for Disease Control and Prevention, 2,694 children and teens in the United States died because of a firearm. Another 15,578 children and teens were injured.

Every 30 minutes, a child is killed or injured by a gun.

The American Academy of Pediatrics (AAP), the largest organization of pediatricians, recommends that conversations about guns and gun safety start during a prenatal visit and be repeated every year as part of anticipatory guidance.

Those conversations start with a question: “Do you own a gun?”

In response, the NRA successfully lobbied the 2011 Florida legislature to pass a law making such questioning illegal.

The result was this Florida statute:

790.338 Medical privacy concerning firearms; prohibitions; penalties; exceptions.—

(1) A health care practitioner . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.

(2) A health care practitioner . . . shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.

Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry.

(3) Any emergency medical technician or paramedic . . . may make an inquiry concerning the possession or presence of a firearm if he or she, in good faith, believes that information regarding the possession of a firearm by the patient or the presence of a firearm in the home or domicile of a patient or a patient’s family member is necessary to treat a patient during the course and scope of a medical emergency or that the presence or possession of a firearm would pose an imminent danger or threat to the patient or others.

(4) A patient may decline to answer or provide any information regarding ownership of a firearm by the patient or a family member of the patient, or the presence of a firearm in the domicile of the patient or a family member of the patient.

A patient’s decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician’s authorization to choose his or her patients.

(5) A health care practitioner . . . may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner . . . shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination.

(7) An insurer . . . may not deny coverage, increase any premium, or otherwise discriminate against any insured or applicant for insurance on the basis of or upon reliance upon the lawful ownership or possession of a firearm or ammunition or the lawful use or storage of a firearm or ammunition.

Nothing herein shall prevent an insurer from considering the fair market value of firearms or ammunition in the setting of premiums for scheduled personal property coverage.

This malevolently intended bill passed the Florida Senate, 27 to 10, and the House, 88 to 30. Which doesn’t say much for these politicians’ political courage or their grasp of legal or medical realities.

The public health absurdity of the Florida situation

In Florida it is okay for physicians to ask whether parents have child-proofed their homes.

But it is not acceptable to ask them specifically about the home’s single most dangerous objects.

In response to this bit public health insanity — 3 physicians sued

Three medical professionals — doctors Bernd Wollschlaeger, Judith Schaechter, and Tommy Schechtman — and three medical societies — the Florida chapters of the American Academy of Pediatrics, American Academy of Family Physicians, and American College of Physicians — sued Florida Governor Rick Scott and Florida Surgeon General Frank Farmer (and other State officials) to prevent implementation of the statute.

The case was filed in U.S. District Court for the Southern District of Florida (Miami Division).

Note

You can read the filing, here.

And you can follow the sequence of legal events that occurred afterward, here.

The physician plaintiffs wanted “declaratory and injunctive relief.” This means that they wanted the federal judge to prevent Florida from enforcing the statute.

The doctors’ reasoning is summarized in paragraph 5 of the legal complaint’s “Introduction” section:

The Physician Gag Law consequently not only will deprive physicians and other health care practitioners of their First Amendment right to freedom of speech, but also will deprive patients of their First Amendment rights to receive potentially life-saving information regarding safety measures they can take to protect their children, families, and others from injury or death resulting from unsafe storage or handling of firearms.

Judge Marcia Cooke agreed with the doctors

In September 2011, Judge Cooke granted a preliminary injunction to prevent enforcement.

Note

You can read what she had to say, here.

From a lawyer’s perspective, Judge Cooke’s willingness to grant a preliminary injunction is notable.

As she wrote (at Section II, Legal Standard of her court order), the hurdles that one has to jump in order to obtain an injunction are significant:

To obtain a preliminary injunction, a movant must establish

(1) it has a substantial likelihood of success on the merits of its claim,

(2) it will suffer irreparable injury unless the injunction is issued,

(3) the threatened injury to it outweighs the possible injury that the injunction may cause the Defendant, and

(4) if issued, the injunction would not disserve the public interest.

In the overwhelming majority of cases, these standards are impossible to surmount. Whatever the defendant wanted to do, gets done — without interruption — until such time as an appellate court decides otherwise.

The fact that Judge Cooke did grant the injunction, points to the level of outrageousness of the NRA’s lobbying and the Florida legislature’s toadying response to it.

Extracts from Judge Cooke’s reasoning in this case

Readers with expertise in Constitutional law will immediately notice how Her Honor addressed each of the constitutional standards involved (via these extracts):

The State has attempted to inveigle this Court to cast this matter as a Second Amendment case.

Despite the State’s insistence that the right to “keep arms” is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights.

Plaintiffs have provided evidence that they and other physicians began self-censoring themselves shortly after the law went into effect.

The evidence on the record shows that, for a physician, being called before the Board of Medicine, even on an unfounded complaint, may result in harm to the physician’s reputation and professional standing in the community.

Finally, nothing in the record indicates that the State does not intend to enforce the law if a patient files a complaint.

By regulating the circumstances in which a practitioner may inquire or record information about firearm ownership, the Firearm Owners’ Privacy Act imposes restrictions based on the content of practitioners’ speech with regard to only one particular subject matter.

The law has more than an incidental effect on protected expression; rather, the law directly targets protected expression by restricting it.

Heightened judicial scrutiny therefore applies.

To survive strict scrutiny, a law must constitute the least restrictive means of advancing a compelling government interest.

The State’s asserted justification for the Firearm Owners’ Privacy Act is to prohibit practitioners from forcing patients to disclose information about firearm ownership during the course of the provision of medical care, as well as to prevent health practitioners from harassing and discriminating against patients based on their ownership of firearms.

The State does not cite any case law to support the proposition that protecting patients from inquiries regarding firearm ownership constitutes a compelling government interest.

The State’s interest in assuring the privacy of this piece of information from practitioners does not appear to be a compelling one. Information regarding firearm ownership is not sacrosanct; federal and state statutes heavily regulate firearm ownership, possession, and sale, and require firearm owners to provide personal information in certain circumstances as a condition for obtaining a firearm or certain licenses.

The State also provides no case law indicating that preventing practitioners from harassing or discriminating against a patient based on firearm ownership constitutes a compelling government interest.

Additionally, the State’s interest in preventing discrimination is dubious, as the State itself acknowledges that the law does not prevent a physician from terminating the doctor-patient relationship if a patient refuses to answer questions regarding firearm ownership.

The antidiscrimination provision therefore provides only remote, if any, support for the State’s asserted purpose.

Plaintiffs contend that a least restrictive alternative to the recordkeeping and inquiry restriction provisions would be a law permitting patients to decline to answer any inquiries regarding firearm ownership.

Plaintiffs’ proposed alternative would also prohibit a practitioner from entering any information regarding firearm ownership into the medical records of a patient who declined to provide such information.

The State does not provide any argument or evidence to suggest that Plaintiffs’ proposed least restrictive alternative would be less effective in protecting patients from forced disclosure of information regarding firearm ownership.

Further, the State does not explain why existing laws are insufficient to achieve the government’s asserted interests in protecting patient privacy. State and federal laws protect as confidential patients’ medical records.

“It is well established that ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

Because of the “intangible nature” of chilled free speech, a plaintiff cannot be compensated or made whole by monetary damages.

The threatened injury to Plaintiffs outweighs whatever damage the injunction may cause the State. The State “has no legitimate interest in enforcing an unconstitutional [law].”

Bernd Wollschlaeger, et al. vs. Frank Farmer, et al, Order Granting Plaintiffs’ Motion for Preliminary Injunction, U.S. District Court, Southern District of Florida, Case No. 11-22026-Civ-COOKE/TURNOFF (14 September 2011)

Will Judge Cooke’s preliminary injunction stand?

We will have to see what the 11^th Circuit Court of Appeals eventually has to say.

But the NRA continues on — with its “lets ignore the facts” campaign

Dr. Rho continued:

The NRA has proposed physician gag laws like the one that passed in Florida in several other states.

In 2011, it sponsored legislation in Alabama, North Carolina, West Virginia, Minnesota, and Oklahoma.

In 2012, the NRA was responsible for bringing to the Oklahoma senate floor a bill that required doctors to first obtain “informed consent” to ask about guns in the home before they could even ask questions about guns in the home.

In Tennessee a house bill prohibited doctors from making a written or verbal inquiry about gun ownership.

And in West Virginia, a house bill sought to amend the West Virginia Medical Practice Act so that doctors asking about guns would be the equivalent of “professional incompetence” and “gross negligence” and punishable by a fine of up to $10,000 and the revocation of the doctor’s license to practice.

Notice, especially, the West Virginia provision.

What kind of a lunatic group would try to hammer physicians in that fashion?

The moral? — Dr. Krugman is correct, the NRA is indeed societally insane

“Inclined toward public health evil” might be a more situationally descriptive phrase.

PeteFree.com

Professor Paul Krugman Called the NRA an Insane Organization — and Former Pediatrics Assistant Professor Helena Rho Tells Us about the NRA’s Legislative Attempt to Prevent Pediatricians from Asking about Gun Ownership