In certain states, laws commonly referred to as "physician gag laws" may affect what doctors can say to their patients. They typically address such hot-button topics as abortion, guns, and even fracking. While physician gag laws may not be on people's radar, knowing about these laws is important because it can impact the information that a patient will receive from their doctor.
Here's how it might work in everyday life: A patient, who lives near a fracking site, comes into your office with a rash on her arm. You think it may have been caused by exposure to chemicals used in fracking, but the fracking company will only give you a list of the chemicals they use if you sign a confidentiality agreement, which they're permitted to do under state law. While you need access to this information to properly diagnose your patient, you're concerned that your ability to treat your patient correctly will be impaired if you can't discuss the chemicals and their effect with your colleagues or your patient.
As can be seen from the example above, physician gag laws can create a predicament for doctors and influence the information a patient receives about their health. Read on to learn more about physician gag laws affecting abortion, fracking, and guns, and how these types of laws have been challenged.
Topics Commonly Addressed by Physician Gag Laws
Medical gag laws are governed by states and will therefore depend on the state in which you live. Specifically, these types of laws can force doctors to give specific information to abortion-seekers, prevent doctors from discussing gun ownership, and prevent doctors from discussing chemicals related to fracking (hydraulic fracturing to extract natural gas) that may have health risks.
Some states, for example, have "state mandated counseling," requiring doctors to disclose certain information to patients seeking abortions. Examples of information required by various states' laws are that a fetus can feel pain, that there are links between abortion and breast cancer, and that an abortion can impact future fertility. Opponents, including some health care providers, contend that these claims are not supported by medical evidence and interfere with the doctor-patient relationship. For example, the American College of Obstetrecians and Gynecologists (ACOG) released a committee opinion explaining that "recent studies demonstrate no causal relationship between induced abortion and a subsequent increase in breast cancer risk."
Many states have also passed laws requiring abortion providers to perform an ultrasound before permitting a woman to obtain an abortion. Under Texas law, for example, a woman who doesn't fall under one of three exceptions must hear an explanation of the sonogram images before getting an abortion. If a doctor intentionally doesn't comply with this or other requirements related to an abortion, they're committing a misdemeanor punishable by a fine of up to $10,000. Opponents to these types of laws argue that they're enacted to discourage women from getting an abortion, since there is no medical reason for a woman to be required to see or hear a pre-abortion ultrasounds.
Some state laws limit the information that doctors can share about the chemicals used in the fracking process. Laws like this usually require doctors to sign confidentiality agreements in order to acquire access to this information, and breaching the agreement would open the doctor to a civil lawsuit and possible criminal liability. For example, violating North Carolina's law related to this kind of disclosure is a Class 1 misdemeanor.
Opponents argue that this and similar laws are unconscionable because of claims that fracking chemicals often contaminate ground water. Proponents of these laws, namely fracking companies, contend that the chemicals used in fracking are protected as trade secrets.
Regardless of which side of the debate you're on, guns are a touchy subject. Anti-gun violence advocates want to limit access to guns while legal gun owners don't want to be vilified and discriminated against for owning a gun.
It seems that some states think a good way to protect the privacy of their citizens is to prevent doctors from inquiring about whether their patients are gun owners. While some states have attempted to pass medical gag laws regarding guns, only Florida successfully passed such a law. But most of that law - including the part that prevented doctors from asking if their patients had a gun in the house - was struck down (more details below).
Challenges to Physician Gag Laws
Physician gag laws are heavily influenced by politics and put doctors in a position of having to pick between "adhering to their professional and ethical standards or abiding by these politically-motivated restrictions," according to a 2015 report authored by the National Partnership for Women & Family, National Physicians Alliance, Natural Resources Defense Council, and Law Center to Prevent Gun Violence.
The report focuses specifically on doctor gag laws relating to guns, abortion, and fracking, which are particularly divisive issues. Given the volatile nature of these topics, it's no surprise that they have been met with various legal challenges, usually based on claims that they violate constitutional rights.
For example, several medical organizations objected to Florida's Firearms Owners' Privacy Act, which limited what physicians and medical staff could ask or discuss with regard to their patients having guns in their homes. The 11th Circuit Court of Appeals struck down parts of the law in 2017.
Specifically, the court overruled sections of the law that prohibited questions about the presence of guns in their patients' homes, while upholding a provision of the law that bars discrimination against patients who are gun owners. The court based its decision on First Amendment grounds, stating that it violated physicians' free speech rights.
As a result of the ruling, physicians and medical staff in Florida are permitted to ask patients about whether they have a gun in their home and they can discuss gun safety. Along the same lines, a Pennsylvania law that required doctors to sign a confidentiality agreement before learning about the chemicals used in fracking was struck down by the Pennsylvania Supreme Court.
Learn More About Physician Gag Laws from a Local Attorney
As you can see from the information above, physician gag laws can have an impact on your health care decisions and vary from state to state. To learn more about physician gag laws or other health care laws in your state, it's best to speak with a local health care attorney.