AAPS joins the legal thuggery against medical standards

I’ve written about the Association of American Physicians and Surgeons (AAPS) on a number of occasions, dating all the way back to 2006. The first time I discovered AAPS, I described the organization as a “medical John Birch Society” in that it is in reality a political organization disguised as a legitimate medical professional society. More than that, AAPS is a crank medical organization every bit as much a bunch of far right conspiracy theorists as the John Birch Society ever was and has been around a long time, having been founded in 1943. This makes unsurprising to me that earlier this week AAPS announced that it was suing three medical specialty boards that had announced measures to strip physicians promoting COVID-19 misinformation and other health misinformation of their board certifications.

This lawsuit, when considered with lawsuits by Dr. Paul Thomas against the Oregon Medical Board for having suspended him for his antivaccine practices and by Dr. Douglas Mackenzie against the Medical Board of California for having launched an investigation into his activities spreading COVID-19, starts to make the attack on medical authorities by quacks, antivaxxers, and COVID-19 cranks look more and more coordinated. I realize that my last three posts might seem repetitive, being about lawsuits various quacks are bringing against state medical boards—and, now, medical certification boards—but it really does appear to be a strategy to forestall efforts by such boards to discipline or sanction quacks spreading misinformation about COVID-19 specifically and, more generally, about health.

To give you an idea of how far right/libertarian AAPS has long been, when I discovered AAPS in 2006 I quickly observed how it had long been opposed to any form of government regulation of health care; considered the FDA and Health Care Financing Administration to be unconstitutional; was utterly opposed to Medicare; urged physicians not to participate in Medicare; described public health programs as “tyranny” (which makes it utterly unsurprising how it so quickly pivoted to COVID-19 misinformation and antivaccine conspiracy theories that echoed its old antivax conspiracy theories when the pandemic hit); and liked to liberally quote Ayn Rand. Long before 2006, AAPS had consistently viewed mandatory vaccination as a “tool of the state” and a threat to physician autonomy, while minimizing the contribution of mass vaccination to the elimination of various infectious diseases. Given that background, the main surprise that I have is not that AAPS is filing such a lawsuit, but that it hasn’t done so before.

Oh, wait. It has. Way back in February 2020—that’s right, February 2020, just after the novel coronavirus-caused disease that had not yet been named COVID-19 had made its first appearance in the US—AAPS sued Representative Adam Schiff (D-CA) to preserve its right to spread antivaccine misinformation, claiming that his activities investigating the spread of misinformation on social media platforms had violated its free speech rights. Remember, this was before there was even much of a hope of a COVID-19 vaccine and before it had even become clear how horrible the pandemic would become, with some still holding out hope that the worst could be avoided. By July 2020, AAPS was a major source of COVID-19 misinformation.

That’s not all, though. AAPS has promoted medical quackery in addition to its antivaccine pseudoscience, including a view that is extreme even among antivaccine activists, namely that the “shaken baby syndrome” is a “misdiagnosis” for vaccine injury; its HIV/AIDS denialism; its blaming immigrants for crime and disease; its promotion of the pseudoscience claiming that abortion causes breast cancer using some of the most execrable “science” ever; its rejection of evidence-based guidelines as an unacceptable affront on the godlike autonomy of physicians; or the way the AAPS rejects even the concept of a scientific consensus about anything. Shortly before the pandemic, AAPS even published an article by Andrew Wakefield speculating that the MMR vaccine could lead to a mass extinction of humanity that later served as the template for Geert Vanden Bossche’s conspiracy theory that COVID-19 vaccines would lead to COVID-19 variants that could endanger humanity. Let’s just put it this way. The AAPS has even featured publications by antivaccine mercury militia “scientists” Mark and David Geier. The history is there. It’s long, and it’s horrifying, and unfortunately all too often the disguise that AAPS goes to so much effort to maintain as a legitimate medical professional society works well enough to fool the press and and politicians (although in a lot of cases I bet that the politicians don’t really care so much about whether AAPS is a legitimate professional society so much as about how much it appears like one).

So what about the AAPS lawsuit? Let’s go to the announcement to see what it’s about:

The Association of American Physicians and Surgeons Educational Foundation (AAPS) filed a lawsuit today in the federal Southern District of Texas, against three medical special boards for their threatened retaliation against physicians who speak out on matters of public concern. AAPS stands up for First Amendment rights of physicians who, like all American citizens, should be able to speak publicly without risk of retaliation.

“Our freedoms depend on the ability of physicians and all Americans to speak out on important issues of our day,” said Andrew Schlafly, who filed this lawsuit. “Entities holding monopolies over board certification should not be retaliating against good physicians.”

This new lawsuit asserts that “Defendants wrongly misuse their authority in a politically partisan manner to chill speech critical of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccines and even abortion.” This Complaint seeks injunctive and declaratory relief against several specialty Board Defendants that hold monopolies over board certification, and against the federal government for its newly created Disinformation Governance Board.

The specialty medical boards being sued include:

The Board Defendants are the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology, and the American Board of Family Medicine. Each of these entities, which hold monopolies over board certification in their specialties, have declared their plans to discipline physicians who speak out.

There you have it. The ABIM, ABOG, and ABFM are in the sites of AAPS and other right wing organizations—and, let’s be honest, AAPS is a far-right wing organization that these days makes the old John Birch Society look semi-reasonable by comparison—because they have stated that they would consider a physician’s history of spreading misinformation in determining board certification and potentially remove board certifications from physicians who egregiously promote COVID-19 misinformation. To be honest, I’m rather ashamed that the specialty medical board that provided my board certification, the American Board of Surgery (ABS), is not mentioned in this lawsuit, mainly because it has, to my knowledge, not stated that it will consider revoking the board certification of surgeons who promote COVID-19 misinformation. Sadly, there are a fair number of surgeons who fall under this category.

Many lay people might not be aware of what board certification is. In essence, it is a process by which these a specialty board certifies that a physician is qualified to practice the specialty represented by the board. In the case of the ABS, after finishing medical school and completing an approved surgical residency, I became “board eligible,” which just meant that I was eligible to take my boards. (If you ever see a physician listed as “board eligible,” it usually signifies a physician within a few years of completing residency who is eligible for board certification but hasn’t taken or passed the boards yet.)

The specific processes vary from specialty to specialty; so I’ll just describe the process for board certification in surgery. The first step is a written examination (the qualifying examination). Once that’s passed, the surgeon takes an oral examination (the certifying examination). The pass rate for the written examination is pretty high, but the oral examination has famously been the source of much fear and anxiety among new surgeons. Before the pandemic, surgeons flew to a hotel in a distant city, where the examination would involve going from room to room to face questioning by three pairs of surgeons, who would present cases and grill the surgeon on what they would do. One of each pair was generally a board member, often a “god” of surgery (that is, very eminent and respected), with the second surgeon an established local surgeon. Once you pass that, you are board certified in surgery.

Back in the day, board certification was for life. In 1976, however, the ABS started requiring periodic recertification with a written examination; so the number of lifetime-certified surgeons is rapidly dwindling, given that few surgeons continue to practice into their late 70s. (Most surgeons are at least 30 years old when they finish residency.) Such was the requirement until 2017 or so (which, ironically, was the last time I recertified), when the ABS added a new “continuous certification” track, in which the all-encompassing every decade surgery examination was replaced with more focused examinations every three years related to the surgeon’s specialty. Interestingly, because the new system had just been announced and it wasn’t clear how it would work, I decided to do it old school and was among the last to recertify on the ten year plan, meaning that my board certification doesn’t expire until 2028. (I recertified a year before my previous certification was due to lapse.)

Again, the exact requirements and procedures vary among specialty boards. ABIM, for instance, has been criticized for its Maintenance of Certification (MoC) program; indeed, the ABIM was forced to change its program several years ago because of it. ABIM has also been sued by doctors contending that its certification process was more about money (requiring internists to purchase MoC products to maintain board certification) than assuring competence. I’m not going to go into the details and only mention this because no one claims that the board certification process is perfect and can’t be improved. The point is that AAPS has always been hostile to board certifications of any kind, particularly since they became a de facto requirement to practice medicine in the US decades ago. There was a time when a physician could practice medicine after just doing an internship. That time is long past, and that’s a good thing. Basically, if you are not board certified (or at least board-eligible), you will find it almost impossible to obtain hospital privileges or to be accepted as a provider by insurance companies and the federal government (e.g., for Medicare and Medicaid). This is, in general, a good thing, as board certification does provide a floor of a minimum level of competence, while recertification requires keeping up to date with one’s specialty.

With that background in mind, let’s take a look at the complaint itself:

1. This action is brought by a co-sponsor of medical conferences and publisher of educational materials on the internet, Plaintiff AAPS, against Defendants concerning their unprecedented campaigns to censor speech that they falsely disparage as “misinformation” or “disinformation”. Defendants wrongly misuse their authority in a politically partisan manner to chill speech critical of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccines and even abortion. Defendants have acted in an apparently coordinated manner, using similar timing and terminology, to censor those who exercise their First Amendment rights on issues of public concern.
2. ABIM, ABOG and ABFM (the “Board Defendants”) have certification monopolies in their respective specialties, which are based primarily on written multiple-choice medical examinations. Though ostensibly nonprofit and non-partisan, they are outspokenly allied with the Biden Administration on fundamental issues of abortion, surgical and pharmacological transgender interventions, lockdowns, mask and vaccine mandates. For example, on June 24, 2022, Defendant ABIM issued a statement that the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization “will cause health care to deteriorate in the US for many years to come.”¹ ABIM joined a statement by the AMA that “condemns” this Supreme Court decision as “egregious”,² similar to the position against the Court decision taken on that same day by the Biden Administration. ABIM also displayed its agreement with the subsequent Biden Administration in ABIM’s criticism of President Trump’s proposed rules in 2020 to protect the right of conscience of physicians to decline to provide “transgender” interventions.³

The description in the AAPS complaint of “criticism” of Anthony Fauci is particularly hilarious, specifically the unwritten conflation of batshit wild conspiracy theories of Anthony Fauci spread by some physicians (a number of them AAPS members) with “speech critical of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccines and even abortion.” Let’s just put it this way. None of these specialty boards is proposing decertifying physicians for criticizing Dr. Fauci or questioning these other interventions. They are, however, trying to rein in doctors spreading conspiracy theories and outright falsehoods and quackery related to COVID-19 that are clearly against the scientific consensus and standard of care, the latter being the most important.

In case you’re wondering how right wing AAPS is, notice how it lumped other right-wing grievance issues related to healthcare with COVID-19 public health interventions, such as abortion and transgender care. In fact, the ABIM and ABOG were standing up for medicine and the standard-of-care when they criticized the Supreme Court decision to reverse Roe v. Wade and allow states to ban and criminalize abortion. As I put it at the time, basically judicial alchemy in the decision is leading to legislative alchemy every bit as unscientific as licensing naturopaths and chiropractors that endangers not just the health of patients related to their pregnancies but the health of pregnant patients related to cancer and a number of other illnesses. As has been the case as long as I’ve paid attention to AAPS, AAPS conflates medical professional societies defending medicine against quackery—and, make no mistake, the positions AAPS takes on COVID-19, abortion, and transgender medicine are quackery—with tyrannical suppression of freedom of speech and, more tellingly, with the apparent god-like autonomy that AAPS thinks physicians should enjoy apparently even when they are quacks.

Here’s where we get to the meat of the grievances of AAPS:

3. The Board Defendants have announced their campaign to take action against certifications earned by physicians who make public statements with which the Board Defendants disagree. Defendants ABIM and ABFM have already sent letters to physicians threatening them with revocation of their earned board certifications based on the exercise by those physicians of their First Amendment rights on matters of public policy. Defendant ABOG has publicly warned physicians against making statements against abortion and contraception, lest they have their earned board certifications revoked by ABOG if it disagrees with such statements.

4. This partisan retaliation by the Board Defendants has been based in part on statements by physicians warning pregnant woman against receiving the Covid vaccine, even though the World Health Organization issued a similar warning in 2021. Retaliation has occurred by the Board Defendants against physicians who were praised by Robert F. Kennedy, Jr., in his bestselling book, The Real Anthony Fauci. In some cases, the retaliation is based expressly on criticism by physicians of Dr. Fauci, who as a government official may be freely criticized.

Let’s just say that there’s nothing like citing a conspiracy-mongering, disinformation-filled book that includes not just conspiracy theories about Dr. Fauci, but antivaccine disinformation and HIV/AIDS denial, by a longtime prominent leader of the antivaccine movement in support of your lawsuit to make it more credible. One can’t help but note that AAPS itself is a longtime source of HIV/AIDS denial.

A lot of verbiage in the complaint attempts to link the position of the ABIM, ABOG, and ABFM to the Disinformation Governance Board, an advisory board to the Department of Homeland Security announced in April whose stated purpose was to protect national security by disseminating guidance to DHS agencies on combating misinformation, malinformation, and disinformation that threatens the security of the homeland, with special attention to areas such as false information propagated by human smugglers encouraging migrants to surge to the Mexico–United States border, as well as Russian-state disinformation on election interference and the 2022 Russian invasion of Ukraine.

It didn’t take long for the DGB to become a favorite target of the very groups promoting misinformation, malinformation, and disinformation, such as Fox News, who successfully attacked it by rebranding it the “Ministry of Truth,” named after the ministry in George Orwell’s dystopian novel 1984. In the novel, the Ministry of Truth continually rewrote history and current events, altering documents in order to bring them into agreement with whatever the government position had become, no matter how different than previous positions. Old documents with previous positions were destroyed by being tossed down the “memory hole” into the incinerator.

Indeed, in the complaint, AAPS makes it quite explicit:

46. A common attribute of physician targets of the threatening letters sent to them by Defendants ABIM and ABFM is that the targeted physicians have criticized positions promoted by Dr. Fauci as a public official, and/or were identified for praise in Robert F. Kennedy, Jr.’s book The Real Anthony Fauci. In effect, ABIM and ABFM are retaliating against outspoken physicians for daring to criticize a government employee who occupies a powerful position over government policy, and who shares common partisan political beliefs with executives at the Board Defendants.

47. In purpose and effect, the Disinformation Governance Board has a chilling effect on free speech on the internet, by advancing a partisan agenda of censorship and by acting as a sort of “Ministry of Truth” disparagingly described in George Orwell’s dystopian novel, 1984.

In fact, the suit even names Alejandro Mayorkas as a co-defendant, in his role as Secretary of the US Department of Homeland Security. No, seriously. It does.

As it typical for the group, the AAPS presents no evidence that the specialty boards named in the suit had anything to do with the DGB (which was put on hold anyway after its chair resigned in May due to the backlash) or were in any way inspired by it to implement policies to remove board certification from physicians spreading misinformation. AAPS just insinuates, as conspiracy theorists are wont to do, that it’s all related. Its lawyers even cite President Biden’s admonishments to “do something” about misinformation as motivating the defendants, while going on and on for page after page about the DGB, how it was incorporated, and its functions, to the point where my eyes started to glaze over.

There’s also some serious irony; indeed, I laughed out loud when I read this part of the complaint:

32. The Board Defendants are testing businesses that certify physicians in certain specialties based primarily on their performance on written multiple-choice examinations. The Board Defendants have no meaningful academic affiliations, and no demonstrable expertise in anything related to Covid-19, its treatment, vaccination of pregnant women, mask mandates, lockdowns, or harm caused by abortion. For example, ABIM’s longtime president and CEO, Richard J. Baron, MD, has a background in medical administrative jobs and implementing electronic medical records, and lists no research, teaching, scholarship, or ongoing academic affiliations on his biography on his website.¹⁴

Projection, thy name is AAPS!

Seriously, if you look at the rogues’ gallery of AAPS members who routinely spread antivaccine conspiracy theories, you’ll find it difficult to find doctors less qualified to pontificate on vaccines, infectious disease, reproductive health, or anything else. Even if they were qualified, they make it clear with every utterance and written screed that for them ideology trumps science.

I also note that AAPS filed this suit in Texas. Why? After all, AAPS is incorporated in Arizona; ABIM in Philadelphia; and ABFM in Kentucky. Unfortunately, it turns out that ABOG is incorporated in the state of Texas. Also, predictably, one of the physicians being considered for revocation of board certification is also a Texas resident. No doubt, AAPS thought that Texas would be a sympathetic venue, and no doubt that’s correct.

The final part of the complaint is one of the most fevered legal passages I’ve ever read. It goes on and on and on about the Homeland Security Advisory Council (HSAC) and the DGB, which is being reviewed now by the HSAC. Indeed, the complaint mentions the HSAC at least 42 times and the DGB at least 40 times, more times than it mentions either the ABIM, ABOG, or ABFM. The complaint is truly unhinged in its obsession with the HSAC and DGB, even going so far as to demand that Secretary Mayorkas be required to “disband and permanently discontinue” the DGB. Indeed, its demand for relief barely mentions the specialty medical boards compared to its focus on the HSAC and DGB. (I’m not a lawyer, but my readers who are lawyers should really peruse this complaint just for the yucks, remembering that Andrew Schlafly is the lawyer who filed this complaint for AAPS.)

As ridiculous as this lawsuit is on the surface, you should remember that its purpose is not to win. As is the case with the legal thuggery that quacks love to engage in (and on the receiving end of which I’ve sometimes found myself), the purpose is to intimidate by threatening expensive legal proceedings and potential large legal judgments. Even if a suit is clearly unlikely to succeed, the defendants still have to go to the expense and time of defending against it. The only thing different here is the scale. It’s one thing when it’s a lone quack using the legal system to intimidate a blogger, journalist, or critic. It’s another thing when a number of allied groups and quacks take coordinated aim at organizations that are utterly unprepared for dealing with the legal thuggery that will be aimed at them.

The more I look at these lawsuits, the more convinced I am that they are coordinated and that more will be coming. It’s easy to laugh at the ridiculousness of individual lawsuits, like this one. It’s not so easy to laugh at the cumulative effect they could have on professional regulation and certification.