In 2011, Florida enacted a law that restricted when doctors could ask their patients if they owned a gun. The sentiment behind the law was that doctors, as a whole, were hostile to gun rights, and could not be trusted with this power. The so-called Docs v. Glocks law, however, did not survive. In 2017, the en banc Eleventh Circuit ruled that the law violated the First Amendment and violated Due Process (there were two majority opinions).
I thought of that case today while re-reading Justice Kavanaugh’s standing analysis in FDA v. Alliance for Hippocratic Medicine. Imagine that some doctors who are hostile to gun rights sought standing to challenge some sort of gun control policy. The basis of their injury would be that with fewer restrictions on firearms, their patients are more likely to show up in the emergency room. I’m sure elite medical journals could pump out studies showing how that is a predictable, non-attenuated chain of consequences. That argument might have worked yesterday. But not today. AHM slammed that door shut:
In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries. Stated otherwise, there is no Article III doctrine of “doctor standing” that allows doctors to challenge general government safety regulations. Nor will this Court now create such a novel standing doctrine out of whole cloth.
Consider some examples. . . . The government repeals certain restrictions on guns—does a surgeon have standing to sue because he might have to operate on more gunshot victims? The answer is no: The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.4
I don’t know if Justice Kavanaugh was thinking about Docs v. Glocks. But he is wont to reach out to decide issues that are not present. And I think this path for standing is foreclosed.
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