Inaccurate COVID-19 info could lead to sanctions and revocations.
On July 29, 2021, the Federation of State Medical Boards (FSMB) announced that “Spreading COVID19 Vaccine Misinformation May Put Medical License At Risk” (https://b.link/FSMBthreat), stating that physicians may be subject to sanctions up to and including revocation of medical licensure if they disseminate COVID-19 vaccine “misinformation” or “disinformation.”
In justifying its pronouncement, the FSMB imposed an “ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health.”
State medical boards have been encouraged by the FSMB to use allegations such as “professional misconduct” and “ethics violation” to punish physicians whose opinions are not acceptable. When pressed for clarification, the FSMB defined “misinformation” as “sharing or distributing verifiably false information.” “Disinformation” was defined as “sharing or distributing information that the distributor knows is false.”
Although state medical boards may attempt to control a physician’s speech, unlike private companies such as Twitter, Facebook and YouTube, there are actions that state medical boards may legally take.
State medical board authority limitations
Each state has a Medical Practice Act where a state’s legislature allows the practice and regulation of medicine. Not only do those statutes contain the qualifications that licensees must meet to obtain a license, but they also contain the reasons for licensee discipline and potential sanctions against licensees. Medical Practice Acts usually allow for formation of administrative agencies such as state medical boards to oversee and regulate medical practice.
Administrative laws within each state further govern the actions of state medical boards. There are also constitutional checks on actions that a state medical board may take. The First Amendment protects freedom of speech.
The Fifth Amendment prohibits the federal government from depriving any person of “life, liberty, or property, without due process of law,” and the Fourteenth Amendment imposes those same prohibitions upon states. The US Supreme Court has held that medical licensure is a property right protected by the Fifth and Fourteenth Amendments. See, e.g., Barsky v. Board of Regents (347 U.S. 442).
While these constitutional amendments do not prevent adverse action against a physician’s license, they do require due process before any such adverse action can take place. Due process, in turn, must be both substantive and procedural.
Substantive due process requires that laws or rules imposed by the government have a valid objective, are pursued in a lawful manner, and are not oppressive in nature.
These laws and rules must also describe prohibited actions in sufficient detail so that they are not considered “void for vagueness.”
In Wollschlaeger v. Governor of State (760 F.3d 1195) the 11th Circuit (citing several US Supreme Court opinions) held “Under “[t]he void-for-vagueness doctrine[,] … ‘a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
Procedural due process generally requires proper notice of specific charges against a defendant, a hearing on the merits of the proposed action before an impartial tribunal, an opportunity for discovery, an opportunity to present a defense and to call witnesses, a right to dispute opposing evidence and cross-examine adverse witnesses and the right to be represented by an attorney.
During a due process hearing, the State must procedurally show that there is a rational basis for its actions. In Barsky, the U.S. Supreme Court held: “It is one thing thus to recognize the freedom which the Constitution wisely leaves to the States in regulating the professions. It is quite another thing, however, to sanction a State’s deprivation or partial destruction of a man’s professional life on grounds having no possible relation to fitness, intellectual or moral, to pursue his profession. Implicit in the grant of discretion to a State’s medical board is the qualification that it must not exercise its supervisory powers on arbitrary, whimsical or irrational considerations.”
Under exigent circumstances, a medical board may be allowed to immediately suspend a physician’s license if the board sincerely believes that there is an imminent and serious threat to public safety. Even in the case of an immediate suspension, an evidentiary hearing must still take place in a timely manner to determine whether the suspension will be maintained.
When inappropriate actions are taken against their medical licenses, physicians can and do file lawsuits against state medical boards. A simple web search will show many such cases including a recent case filed against the Oregon Medical Board and each of its members after it suspended a physician’s medical license over issues related to mask use.
Some due process violations may cause a court to award attorneys’ fees to the successful plaintiff, which may make plaintiff attorneys more willing to file such cases. Although state agencies may allege they are immune from liability for their actions due to “sovereign immunity” statutes, sovereign immunity is seldom absolute.
For example, in Healy v. Vaupel, the Illinois Supreme Court held that “sovereign immunity affords no protection … when it is alleged that the State’s agent acted in violation of statutory or constitutional law or in excess of his authority.”
Applying Law and Policy to FSMB Diktats
The FSMB will likely assert that sanctioning “false” statements does not violate substantive due process. After all, why should doctors with “high degrees of public trust” be allowed to mislead the public? The problem with such a stance is that medical science is rarely binary.
No medication is 100% effective and no medication has zero side effects. Therefore, asserting that a medication may not be effective or that a medication may have adverse effects cannot be a “false” statement. Regardless of one’s opinion on COVID vaccinations, the science behind mRNA vaccinations is far from settled.
Citing studies or data that question the mRNA vaccine’s safety or efficacy cannot be considered “false information.” Even the FSMB’s announcement did not provide examples of “false information” regarding COVID vaccines that could subject physicians to adverse licensure actions.
Labeling data as “false” because it questions the safety or efficacy of mRNA vaccines and suppressing that information under threats of licensure revocation creates an authoritarian regime in which the only people licensed to practice medicine are those who become apparatchiks.
Imagine how different life would be if Louis Pasteur’s theories on bacteria or Dr. Barry Marshall’s opinions on causation of gastric ulcers were labeled “false” and were cause for licensure suspension.
If states announced a policy that any citizen spreading COVID vaccination “misinformation” may put his house or bank account at risk, that news would create a national uproar.
Medical practitioners and professional organizations cannot sit idly by when state agencies propose unconstitutional policies allowing potential forfeiture of medical licenses –property considered the legal equivalent to land or bank accounts.
Should the FSMB and state medical boards continue their unconstitutional quest to silence discussion about mRNA vaccines or any other medical treatment, their actions will subvert scientific inquiry and will create a public health crisis in which physicians may be forced into a dystopian decision between providing patients with informed consent or losing licensure based on accusations of disseminating “false” information.
State medical boards and each of their members must be held singularly and collectively liable for any unconstitutional adverse action taken against a practitioner’s license. If the FSMB advocates adverse licensure actions from its members, the FSMB directors and its executives should be held similarly liable. Physicians and our professional organizations must take a stand against such odious policies.
Questions that can’t be answered are the basis of science. Answers that can’t be questioned are the basis of authoritarianism.