Analysis: Doctors with spines holding FDA accountable in federal court on ivermectin ban

by WorldTribune Staff, August 11, 2023

When the FDA told Americans to stop taking ivermectin to treat Covid it was interfering in doctors’ authority to prescribe an approved medication as well as interfering in the doctor-patient relationship, three doctors who filed a lawsuit against the FDA said.

The lawsuit filed last year by Dr. Mary Talley Bowden, Dr. Paul E. Marik, and Dr. Robert L. Apter made its way to the Fifth Circuit Court of Appeals this week.

“Nearly 40 percent of prescriptions in the United States are for off-label use,” the doctors’ lawyer, Jared Kelson of Boyden Gray and Associates, told the court in a hearing earlier this week. “This is and always has been an integral aspect of the practice of medicine that is precisely why the FDA cannot interfere. In fact, Congress has expressly forbidden it.”

Bowden told independent journalist Emily Miller: “When the FDA commanded the public not to take ivermectin — an incredibly safe medication used by over four billion people — my job treating Covid patients became incredibly more difficult.”

Under federal law, the FDA is not permitted to give medical advice. The Fifth Circuit judges pressed this point when questioning the government’s legal team, focusing on a now-infamous tweet in which the FDA said of the use of ivermectin: “You are not a horse. You are not a cow. Seriously, y’all. Stop it.”

“Is that a command? ‘Stop it,’ ” Judge Jennifer Walker Elrod asked DOJ lawyer Ashley Cheung Honold multiple times.

Honold described the statements as “merely quips.”

“Can you answer the question, please? Is that a command, ‘Stop it?’ ” Judge Elrod asked.

“In some contexts, those words could be construed as a command,” Honold said. “But in this context, where FDA was simply using these words in the context of a quippy tweet meant to share its informational article, those statements do not rise to the level of a command.”

Bowden said she has prescribed ivermectin to many of her 5,500 Covid patients, but doing so became extremely difficult due to the Covid overlords.

“I had to find pharmacies willing to dispense it, fight a hospital unwilling to use it, and reassure sick patients it was safe,” she said. “Countless other doctors faced the same roadblocks. The repercussions on patient care are immeasurable.”

Miller noted that, since Bowden has gone public about prescribing ivermectin, “she has been forced to defend her medical license and resign her privileges at Houston Methodist Hospital. Read her powerful Substack article on the impact of defending herself to the Texas Medical Board. None of the accusations against her are from her patients.”

This week’s court proceedings will only determine whether the FDA can be sued. The case was dismissed by a lower court in December after the government claimed it has sovereign immunity.

The doctors are arguing in their lawsuit that the FDA is not immune because it acted outside its statutory authority. All three judges of the Fifth Circuit were appointed by Republican presidents.

And in the much-too-little, much-too-late category, Honold said at the Aug. 8 hearing that doctors are now free to prescribe ivermectin to treat Covid..

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