January 11, 2016 By Nelson Lund
The Eleventh Circuit recently upheld a Florida statute that restricted the freedom of doctors to inquire about their patients’ possession of firearms. One can understand why a legislature would want to spare patients from being badgered with a controversial political agenda by their physicians. But people are free to avoid doctors who offend them, and judicial decisions enforcing the First Amendment almost always force some people to be subjected to speech they’d rather not hear. Obnoxious college students making offensive political demands probably inflict more unpleasantness in a day than anti-gun physicians do in a decade. These harms come along with the First Amendment.
If one disagrees with the Eleventh Circuit, it would seem that one must also reject the Ninth Circuit decision upholding California’s ban on so-called gay conversion therapy. This statute forbids mental health providers from engaging in “sexual orientation change efforts” with patients under the age of 18. Dissenting from the denial of en banc review in the California case, Judge Diarmuid O’Scannlain pithily characterized the issue: “May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as ‘conduct’?”
Under standard First Amendment doctrine, the answer is pretty obvious.Noah Feldman, who likes the California law and dislikes the Florida law, apparently recognizes that the First Amendment requires the same answer in both cases. He therefore chucks that out in favor of a new approach: communications between a medical professional and a patient should instead “be evaluated through a distinct constitutional lens: the lens of privacy.”
Although the Florida statute allows physicians to ask about firearms if the information is “relevant to the patient’s medical care or safety, or the safety of others,” Feldman objects that one school of thought holds that gun ownership is itself a public health problem and that physicians are practicing medicine when they try to combat this supposed epidemic. Voilà! The real problem with the Florida statute is that it intrudes on the practice of medicine, which is at the heart of Roe v. Wade’s constitutional right to privacy.
Let’s leave aside the gigantic leap, never even suggested by the Supreme Court, from a right to abortion to a right to be interrogated by your doctor about guns you may own. Assuming, with Feldman, that Roe v. Wade should be the starting point, how does the right of privacy in that case apply to the muzzle that California puts on mental health therapists?
If Roe’s right to privacy protects pregnant girls and women who want an invasive medical procedure, it follows a fortiori that willing patients must have a right to talk in private with willing therapists about what both regard as a medical issue. California teenagers are forbidden to have such private conversations even with the consent of their parents, whereas minor children throughout the country can get an abortion even if their parents object.
This straightforward logic has apparently not occurred to Feldman. He thinks that the right to privacy in Roe v. Wade implies a right to be subjected to unwanted inquiries from a doctor about your guns, but not a right to private mental health therapy that the patient requests. How can that possibly be?
For Feldman, it all comes down to “the difference between regulating the practice of medicine and interfering in the physician-patient relationship.” But, you might think, interfering in the physician-patient relationship is exactly what regulating the practice of medicine is. Feldman solves that problem by defining his way out of the predicament. Banning gay conversion therapy is a regulation of medicine because California’s government thinks such therapy is harmful. But if Florida thinks it’s harmful for physicians to treat their gun-owning patients as disease vectors, that’s “inserting legislators’ political or moral values into the private zone of medical treatment.”
This is all so transparently sophistical that one might regard Feldman’s essay as a harmless joke. But how different is it from what the Ninth Circuit did when it defined disfavored talk as “conduct”? Indeed, how different is it, really, from Roe v. Wade itself and the Supreme Court’s whole ensuing jurisprudence of the right to privacy?
University Professor Nelson Lund has written widely in the field of constitutional law, including articles on constitutional interpretation, federalism, separation of powers, the Second Amendment, the Commerce Clause, the Speech or Debate Clause, the Equal Protection Clause, and the Uniformity Clause. In addition, he has published articles in the fields of employment discrimination and civil rights, the legal regulation of medical ethics, and the application of economic analysis to legal institutions and legal ethics.