The NRA Successfully Silences Another Obama Nominee

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Analysis Law and Policy

The NRA Successfully Silences Another Obama Nominee

Jessica Mason Pieklo

The Office of the Surgeon General has been vacant for almost a year, and if the NRA gets its way, it will stay vacant.

Like conservative opposition to abortion rights, conservative support for unfettered access to guns greatly depends on controlling information and gaming science, and the fight over the nomination of Vivek Murthy for surgeon general is making that connection even clearer. Murthy is an Indian-American physician at Harvard Medical School and Brigham and Women’s Hospital, and in November President Obama nominated him to serve as surgeon general. But thanks to the National Rifle Association (NRA), Murthy may never get confirmed.

Why would the NRA oppose Murthy’s nomination? Guns, naturally.

More specifically, the NRA opposes the nomination because Murthy believes that gun violence is a public health problem, and he supports the idea that doctors should be able to discuss guns and gun safety with their patients, something conservatives and the NRA oppose.

In January of last year, an advocacy organization Murthy helped establish, Doctors for America, sent a letter to Congress urging members to take action against the epidemic of gun violence in the United States. By March, following Republican’s successful opposition to Debo Adegbile to head the critically important Department of Civil Rights division within the Department of Justice, the Obama administration announced it was “recalibrating” its strategy on Murthy’s nomination in the face of mounting Congressional opposition based on his statements about gun violence being a public health issue.

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Murthy is not the first Obama nominee the NRA has successfully opposed. It was the NRA and anti-choice groups joining forces to oppose the judicial nomination of Caitlin Halligan to the powerful D.C. Circuit Court of Appeals that helped push Senate Democrats to eventually change the filibuster rules on some presidential nominees. With Halligan’s nomination, the NRA focused its opposition almost completely on a single brief Halligan wrote while working with then-New York Attorney General Andrew Cuomo.

Cuomo was looking for ways to make gun manufacturers legally responsible for a portion of the gun violence in New York, and thus have them shoulder some of the public health costs associated with treating victims of gun violence. Naturally, the NRA opposed the effort. Senate Republicans used Halligan’s work in pursuing a lawsuit against the gun manufacturing industry to smear her as a “judicial activist” who would not “strictly interpret” the Constitution should she be confirmed, and used that as one reason to block her nomination. On cue, the anti-choice right joined in and challenged Halligan’s nomination for her role in a 2002 case, National Organization for Women v. Scheidler, in which as solicitor general she argued that the Racketeer Influenced and Corrupt Organizations (RICO) Act could apply to organizations like anti-choice groups that employ criminal ends to get to (mostly) non-monetary goals.

The case, which spans decades, was first filed in the 1980s as a class action by the National Organization for Women (NOW) to try and address the escalating violence against abortion providers, clinics, and patients. NOW argued that the defendants, Joseph Scheidler and other members of the Pro-Life Action League (PLAL), and specifically the Oklahoma Pro-Life Action Network, were racketeering organizations, a functional “pro-life mafia” engaging in a conspiracy to prevent access to health-care facilities providing abortion services. It was the first time the anti-choice groups had been the target of a class-action lawsuit alleging they operated as a criminal gang. NOW ultimately lost the case when, in 2006, the Roberts Court ruled criminal conspiracy statutes didn’t apply to groups like PLAL, and that the passage of the Federal Access to Clinic Entrances (FACE) Act suggested Congress didn’t intend to have criminal statutes apply in situations like clinic blockades and patient/provider harassment.

Like the NRA and the right’s opposition to Halligan, the NRA’s opposition to Murthy is part of a pattern of what Ladd Everitt, director of communications for the Coalition to Stop Gun Violence, a nonprofit organization comprised of 48 national organizations working to reduce gun violence, described in an interview with Rewire as “all rights and no responsibilities.” This serves the NRA’s larger purpose of selling more guns and to deliver votes for conservative candidates.

“It’s good politics for the NRA. They do so many things to rev up their base and raise money, and deliver votes more broadly to the conservative movement, and I’m sure their leadership couldn’t resist [opposing Dr. Murthy’s nomination],” Everitt said. “He’s been appointed by President Obama, who is enemy number one with their supporters. He’s a man of color who has spoken forthrightly about the problem of gun violence and how he views it as a public health issue, which every other legitimate member of the medical community does as well.”

In April, just after Republican opposition to Murthy’s nomination was reaching a fever pitch among members of Congress like Sen. Rand Paul (R-KY), the American College of Physicians went on record calling U.S. gun violence a public health issue and released a set of wide-ranging recommendations to address the average of 88 gun deaths per day that happen in the country. (The organization’s president, Molly Cooke, described this in the Washington Post as “a good-sized airplane crash every three days.”) Among the top recommendation from the group was that doctors should be able to freely, and without legislative interference, counsel patients on the risk of having guns in the home, particularly if children, adolescents, people with dementia, the mentally ill, or people with substance abuse problems live there—the very kind of proposal the NRA opposes and Congress, by refusing to advance his nomination, is stonewalling.

A 2012 article, “Legislative Interference with the Patient-Physician Relationship,” published in the New England Journal of Medicine addressed head-on this trend of legislators “overstepping the proper limits of their role in the health care of Americans to dictate the nature and content of patients’ interactions” with their doctors. The article, penned by the executive staff leadership of five professional societies that represent the majority of U.S. physicians providing clinical care—the American Academy of Family Physicians, the American Academy of Pediatrics, the American Congress of Obstetricians and Gynecologists, the American College of Physicians, and the American College of Surgeons—described the trend as “alarming” and against the best interests of the patients, because it fails to respect “the importance of scientific evidence, patient autonomy, and the patient-physician relationship.”

The article identified four areas of “inappropriate legislative interference.” The first is a gag law that “prohibits physicians from discussing with or asking their patients about risk factors that may affect their health or the health of their families, as recommended by evidence-based guidelines of care.” An example of this cited by the doctors came from Florida. In 2011, the state enacted the Firearm Owners’ Privacy Act, which substantially impaired physicians’ ability to deliver gun safety messages to patients. The law also prohibited practitioners from routinely inquiring about whether patients own firearms and recording this information in a patient’s medical record. The law, which is currently under injunction, subjected doctors to a loss of their medical license should they violate it. Republicans in the state, including Gov. Rick Scott, have appealed the injunction.

Minnesota and Montana currently have similar laws on the books.

“For all their rhetoric about responsibility and safety, this is yet another example of where it’s clear they are trying to protect people who do not operate safely,” Everitt said. “They want to divorce the issue of gun ownership from safety—not for the shooter—but for everyone around the shooter.”

This kind of silencing and debate control should sound familiar to reproductive rights and justice advocates because anti-choice activists have long used it as a way to push back against reproductive autonomy. At least five states require doctors to inform patients of a false risk between abortion and breast cancer, and at least seven states require doctors to assert only negative psychological effects from abortion. Meanwhile, at least 21 states have laws that prohibit some or all state employees or organizations that receive state funds from providing consulting, or referring women for abortion services, while at least three states have enacted measures that prohibit organizations receiving state funds from counseling or referring women for abortion services.

Lin-Fan Wang, a family doctor and reproductive health advocacy fellow at Physicians for Reproductive Health, described the impact of these kinds of gag laws globally on the medical practice and the doctor-patient relationship. “As a family doctor, I am a generalist, which means a lot of my clinical focus is on preventive care. That includes everything from birth control to immunizations and beyond,” Wang told Rewire. “The impact of gag laws means I can’t inform my patients of all their options, or I’m limited in what information I can give. And if I can’t do that in one area, it affects patient trust generally. And the doctor-patient relationship must be built on trust.”

Wang continued, “The issue of trust is so important. In rural areas, for example, family doctors may be the only doctor some people see. These relationships are important.”

Wang sees a clear connection between laws limiting what information doctors can solicit from patients related to guns and laws limiting or scripting what doctors can or must disclose to patients seeking abortions: “Both of these kinds of laws are politically motivated and not in the best interests on the patients, nor are they grounded in science or the interests of public health.”

It’s that clear political agenda behind the silencing efforts that Wang believes has helped medical groups become more vocal in their opposition to conservative legislative efforts to interfere in the patient-provider relationship. “I think doctors are slowly realizing more legislation is being proposed that directly impacts their professional judgments and that is not based on science but on the personal opinions of legislators,” Wang said.

The result is deadly, and uninformed, policy.

For its part, the media establishment has done little to help advance the cause of informed debate surrounding the problem of gun violence. Instead of pushing lawmakers to find policy solutions to the inexcusable levels of gun violence in this country, mainstream media questions the number of “legitimate” school shootings or “legitimate” cases of sexual assault.

Like the most extreme factions of the anti-choice movement, groups like Open Carry Texas are quite literally weaponizing constitutional rights in the name of intimidation and fear, using intimidation and silencing tactics very clearly aimed at women and people of color.

“The gun issue is intimately woven with the fears of white men and the fact that the demographic writing is on the wall and they are seeing their position of privilege erode day by day,” Everitt said. In particular, gendered violence and violent rhetoric against women have always been a part of the movement, Everitt explained. “Women’s heightened position in society [and] gay rights drives them nuts. Racism being totally inexcusable—that worries them. The gun has been a symbol of personal power and status and a guarantor of one’s position in society for these folks. It’s their ‘Second Amendment check’ on feeling their position of power give way.”

Despite the president’s heartfelt condolences offered now on a near-daily basis in response to yet another public shooting, and despite the fact that poll after poll shows wide support for reasonable gun restrictions, Murthy has gone silent on the issue of gun violence, and it appears his vote will be delayed until after the midterm elections, if it happens at all.

In other words, the NRA has successfully silenced Murthy. For now at least.