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Ninth Circuit:
Suit to Ward Off Potential Discipline Properly Dismissed
Doctor Sought Determination He Could Freely Recommend Use of Veterinary Drug to Treat COVID-19
By a MetNews Staff Writer
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PIERRE KORY medical doctor |
The Ninth U.S. Circuit Court of Appeals on Wednesday affirmed the dismissal of an action brought by a medical doctor who wanted a determination that he has a First Amendment right to recommend to patients use of a veterinary drug which kills worms and other parasites as a treatment for COVID-19.
Dr. Pierre Kory, a pulmonary and critical care specialist, was joined in his action by Drs. Le Trinh Hoang and Brian Tyson and by Physicians for Informed Consent and Children’s Health Defense. They sued Attorney General Rob Bonta and officials of two medical regulatory bodies.
District Court Judge William B. Shubb of the Eastern District of California on April 23 denied a preliminary injunction, ruling that the “plaintiffs have failed to establish a likelihood of success on the merits of their First Amendment challenge to California Business & Professions Code § 2234.” That statute requires disciplinary action against any doctor who commits “unprofessional conduct.”
Shubb’s decision was upheld in a memorandum opinion signed by Ninth Circuit Judge Consuelo M. Callahan and Senior Judges William A. Fletcher and Mary M. Schroeder. Callahan wrote a brief concurring opinion.
Facial Challenge
The judges wrote:
“To the extent that Plaintiffs on appeal seek to maintain a facial challenge, we must affirm, because the statute regulates conduct, not speech….It provides for enforcement of the standard of care, which is the standard for physicians’ treatment of patients….The statute does not purport to regulate speech unrelated to treating patients or require any particular communication.”
They added:
“To establish standing for their as-applied challenge. Plaintiffs must show a credible threat that the Defendants will prosecute them under the statute….None of the Plaintiffs have been prosecuted under the statute, and Defendants have not threatened enforcement against them. So far as the record discloses, the only disciplinary proceedings against a physician related to Covid-19 communications or treatment involved a physician encouraging her patient to use veterinary ivermectin and resulted in the stipulated surrender of her license.”
Kory’s Advocacy
It is the use of ivermectin that Kory advocates. A large-scale study published on March 30, 2022 concluded that the drug is ineffective in treating COVID.
The Shrub’s American Board of Internal Medicine has revoked three certificates Kory held based on his advocacy.
Wednesday’s Ninth Circuit opinion says that to base a lawsuit on the threat of a prosecution, there must be an inquiry as to whether the plaintiffs have a set plan to break the law, they have been threatened by the defendants with prosecution, and the statute in question has previously been enforced. The opinion says:
“Plaintiffs have not shown that any of these factors are present here.”
Callahan wrote:
“I believe Plaintiffs have standing to bring an as-applied challenge, but concur in the judgment because Plaintiffs have not established a likelihood of success on the merits at this stage of the proceedings.”
2022 Legislation
Business & Professions Code §2270, which took effect on Jan. 1, 2023, provided:
“It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation...related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”
Shubb on Jan. 25, 2023, enjoined enforcement of the statute, finding it to be unconstitutionally vague, and the Legislature proceeded to repeal it.
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