A Landmark Victory for Physicians and Patients – and the First Amendment – in AAPS v. ABIM

Appellate Decision Sides with Physicians Rights to Free Speech

By Peter A. McCullough, MD, MPH

Several medical credentialing boards instituted a COVID-19 Misinformation Policies in September of 2021 and have used them to censor and retaliate against academic and practicing physicians who performed research, clinical care, and presented their findings on the early treatment of acute COVID-19 and vaccine safety. The boards’ position is that they and the government agencies they agree with, hold agency over the truth. By establishing that power dynamic, member who disagree with them are spreading misinformation and can be convicted in closed panel meetings without the member being allowed to present their views based upon the data and evidence at hand.

The Association of American Physicians and Surgeons sued three medical specialty boards for their threatened actions against the board certifications of physicians because of speaking out on medical controversies. Physicians earned and need these board certifications in order to hold professorships, practice medicine in most hospitals, and remain in most insurance networks.

Defendants are the American Board of Internal Medicine (“ABIM”), the American Board of Family Medicine (“ABFM”), and the American Board of Obstetrics & Gynecology (“ABOG”). In addition, Alejandro Mayorkas, Biden’s Homeland Security Secretary, is a defendant due to alleged government interference with freedom of speech.

The Fifth Circuit also invalidated Galveston Local Rule 6, by which that federal district court has infringed on plaintiffs’ right to amend their lawsuits. The Fifth Circuit agreed with AAPS that this district court rule is contrary to the Federal Rules of Civil Procedure, and thus must be voided. 

“AAPS can now pursue its claim against censorship by the Biden Administration,” AAPS Executive Director Jane Orient, M.D., stated.

Fifth Circuit Judge James Ho agreed with the panel majority on the key issues and wrote separately to decry attempts by some today to impose censorship on others. “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation,” Judge Ho wrote.

“We know how to disagree with one another without destroying one another. Or at least that’s how it’s supposed to work,” Judge Ho added as he sided fully with this lawsuit against censorship. 

The precedent-setting ruling in favor of the First Amendment was issued by the U.S. Court of Appeals for the Fifth Circuit. This influential Court established the right to object in court to censorship of physicians’ speech on topics ranging from government Covid policies to abortion. AAPS General Counsel Andrew Schlafly should be congratulated for this stalwart effort in defense of our civil liberties.

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Peter A. McCullough, MD, MPH

President, McCullough Foundation

www.mcculloughfnd.org