Doctors with dissenting views on COVID-19 and abortion can proceed with their First Amendment lawsuit, a federal appeals court ruled on June 3.
The Association of American Physicians and Surgeons (AAPS) sued on the doctors’ behalf and argued that “medical specialty certifiers” and the government conspired to punish the doctors for their views.
A lower court dismissed the AAPS lawsuit on standing grounds and with prejudice, meaning the AAPS could not refile. The appeals court modified the dismissal to “without prejudice,” allowing the AAPS to refile.
The doctors represented by the AAPS “spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion,” resulting in an alleged “coordinated [effort] to censor and chill” their speech.
The medical certifiers “expressly threatened to strip certification from otherwise qualified physicians who express[ed] such views.”
Because “[b]oard certifications constitute a de facto essential credential for physicians to practice,” the medical certifiers “exercise great power over physicians’ speech,” the appellate opinion notes.
One medical certifier, for example, exercised that power by “sending letters to all certified physicians threatening to strip them of their invaluable certification” on July 7, 2022.
The letter warned doctors that eligibility to maintain certification would depend on the medical certifier’s “review [of] reports of dissemination of misinformation and disinformation about COVID-19, reproductive health care, contraception, [and] abortion.”
“The letters . . . were,” the AAPS alleges, “sent nearly simultaneously and with similar terminology as ‘part of a broader campaign by the Biden Administration to advance its particular partisan agenda concerning Covid-19 and abortion.'”
For its part, the government issued a May 2, 2022, press release calling for “‘recommendations for how the Department [of Homeland Security] can most effectively and appropriately address [COVID] disinformation that poses a threat to the homeland.”
The release cautioned that any action must respect “free speech and other fundamental rights.”
Despite its call to protect “fundamental rights,” the press release “prompted a massive backlash,” with state attorneys general swiftly criticizing the directive on free speech grounds in a letter sent on May 5, 2022.
The backlash caused the department to “pause” the directive and abandon it on August 24, 2022.
Named defendants include the Department of Homeland Security and certifiers like the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology, and the American Board of Family Medicine.
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