AAPS News March 2019 – Informed Consent and Free Speech


Volume 75, no. 3  March 2019

Our Founders put the First Amendment first because without free speech  there is no liberty. Without apparently unanimous support, tyranny is threatened. Dissent must be silenced.

In medicine, informed consent is a bedrock ethical principle, reinforced by the Nuremberg Code (AAPS News, November 2012). But how can there be informed consent without freedom of speech?

Attacks on free speech started very early, during the administration of our second president, John Adams, with the Alien and Sedition Acts. Between 1798 and 1801, U.S. federal courts prosecuted at least 26 individuals under the Sedition Act. Many were editors of Republican newspapers, and all opposed the Adams administration. The laws expired or have been repealed, except for the Alien Enemies Act.

The Sedition Act forbade writing, publishing, or  assisting in the writing or publishing of “any false, scandalous and malicious writing” against Congress or the President “with attempt to defame…or bring them…into contempt or disrepute” or to excite opposition or resistance to government.

Subsequent presidents used executive powers to suppress dissent. Abraham Lincoln suspended habeas corpus and jailed political opponents and newspaper writers, detailed by Thomas DiLorenzo in his controversial book, The Real Lincoln. Woodrow Wilson organized massive suppression of free speech during World War I. More people were arrested in a few years under Wilson than in the entire 1920s under Mussolini, writes Dinesh D’Souza in The Big Lie.

“Conformity will be the only virtue and any man who refuses to conform will have to pay the penalty,” Wilson said.

President Franklin D. Roosevelt’s efforts to suppress freedom of the press were “slightly more subtle” than Nazi Germany’s or Fascist Italy’s, D’Souza writes. His Federal Communications Commission (FCC) required radio stations to submit transcripts of all programs concerning public affairs for FCC clearance. CBS and NBC banned criticism of the New Deal, and the few stations that tried to hold out eventually fell into line to save their broadcasting licenses.

Today’s mainstream media may be called “a wholly owned subsidiary of the Democrat Party” by various “alternative” outlets. Overt government suppression is not evident—perhaps because the most extreme advocates of central planning lack complete control—but nongovernment entities with pervasive influence are banning, demonetizing, or “shadow-banning” voices that don’t conform to their vague, self-defined “community” standards. Leftist views, however extreme or hateful, appear to be exempt. The First Amendment applies to Congress, not private entities.

Protecting Public Health

National security in wartime has been the main pretext for government suppression of speech. This has now been expanded to include a wide variety of “crises,” including “climate change” and vaccine-preventable diseases. Measles outbreaks involving a few hundred cases nationwide have triggered attempts in many state legislatures to follow California’s lead and do away with all except narrow medical vaccine exemptions. The U.S. Senate heard testimony concerning a federal mandate if states don’t act.

At this time, the last reported U.S. death from measles occurred in 2015. But it is claimed that if too many parents declined measles vaccine, “millions” might die as herd immunity (95% is purportedly necessary) was lost. Even one unvaccinated child could be a threat—he might infect an immune-deficient child.

Population health now is thought to override individual health and the right to give—or withhold—informed consent. Although Vaccine Court has paid more than $4 billion in damages since 1986, “documented vaccine injuries” are claimed to be “extremely rare.” There is virtually no recourse other than this “court,” which is actually an administrative agency, writes Robert Moxley (see p 3).

The World Health Organization (WHO) has named “vaccine hesitancy” a “global health threat.” Exiting U.S. FDA Commissioner Scott Gottlieb called on states to limit exemptions. Some states (including Iowa and Oregon) propose to require vaccines for home-schooled children. Families may be subjected to “health and wellness” home visits, with law enforcement involvement if they are uncooperative.

The cost of a measles outbreak during the “postelimination era” is also called a public-health threat due to “profound financial burden” and diversion of  resources (JAMA 3/7/19).

Additional ways of “leveraging the law” could include workplace mandates, tort liability if unexcused refusal to vaccinate leads to disease transmission, and permitting teenagers to consent to vaccines without parental approval (Science 2/22/19). Not mentioned is quarantining nonimmune persons who have been in places with measles outbreaks (Philippines, Ukraine, Israel, Madagascar) or border crossers traveling with persons diagnosed with measles, mumps, chickenpox, or other infectious diseases.

One sign of propagandizing is to allow only one side to be presented. Any who support informed consent or who voice safety concerns are branded as “antivaxx,” “anti-science” sociopaths. Social media is blamed for undermining support for vaccines. So, Facebook, Pinterest, and YouTube are demonetizing, suppressing, or otherwise “de-platforming” what they judge to be “pseudoscience.” What is next?

Vaccine-Autism Link Laid to Rest?

The risk of autism is likely the greatest concern of parents who are deciding about vaccines. Just coincidentally with WHO’s pronouncement on vaccine hesitancy, a study (Ann Intern Med 3/5/19) is published with the Reuters headline: “Measles vaccine doesn’t cause autism, even in high-risk kids.” Finally, two decades after the first concerns were published, here’s a Danish study comparing vaccinated and “unvaccinated” children. It is not a controlled, prospective study; “unvaccinated” meant “not yet vaccinated” at the time that a diagnosis of autism was made. (It is said to be “highly unethical” to have an unvaccinated control, but is apparently fine to forcibly vaccinate almost all children without such a control.) Children were born of a Danish-born mother between 1999 and 2010, and followed up through August 2013. The study was funded by Novo Nordisk, which makes a WHO-recommended vaccine component, CTAB (cetrimonium bromide);  it claims to have had no influence on design, data collection or analysis, or reporting. Methodologic questions were raised by Stephanie Seneff of MIT Computer Science and Artificial Intelligence Laboratory: “The study looked (bizarrely) at cumulated ‘person-years’ of autism. Of course, people who get a diagnosis early (before the vaccine) get a boosted weight simply because they lived longer after the diagnosis…. [There] are inherent biases in who delays their child’s vaccination (those who have children who are demonstrating developmental difficulties).”

The U.S. Autism and Developmental Delay Network (ADDN) reported  a 150% increase in autism spectrum disorders 2000-2014; it made no comment on vaccines (MMWR 4/27/18).

James F. Coy, M.D.: R.I.P.

A valiant champion of patients and our profession died Feb. 21 during a day of patient care at his office. Dr. Jim Coy was a long-time, second-generation member of AAPS. He was president in 1988, served many terms on the board of directors, and directed AAPS-PAC for many years. Well-trained in internal medicine, surgery, obstetrics, tropical diseases, pediatrics, and emergency medicine, he specialized in nutrition and wellness in Lady Lake, Fla. He was also very active in the American Academy of Environmental Medicine (AAEM). In preparation for the AAPS 75th anniversary, Dr. Coy prepared a presentation: “AAPS at 75: What’s Past is Prologue to Victory for Patients and Physicians”:

“Whether it’s Federal or State, Executive, Legislative or Judiciary, the left moves power around…. If it controls an institution, then that institution is suddenly the supreme power in the land…. There isn’t one guy in a room somewhere issuing the orders. Instead there’s a network…, the moving dictatorship…. Think about things like…Communist infiltration. A better term than Deep State is Shadow Government.

“Freedom can only exist under a volunteer government…. A professional government is going to have to stamp out freedom sooner or later…. No matter how…disguised, a professional government is tyranny…. Now what’s the left? Forget…the deep answers. The left is a professional government. 

“This is a civil war over whether the American people are going to govern themselves. Or are they going to be governed?”

Daniel Greenfield –

Senate Hears Vaccine Testimony 

“Vaccines Save Lives: What Is Driving Preventable Disease Outbreaks” was the subject of a Mar 5 hearing before the Senate Health, Education, Labor, and Pensions (HELP) Committee. AAPS submitted a written statement supporting the right of patients to make an informed choice. “The risk: benefit ratio varies with the frequency and severity of disease, vaccine safety, and individual patient factors. These must be evaluated by patient and physician, not imposed by a government agency.”

Invited oral testimony included a high-school student. From leading the debate club, he learned that there are two sides to almost every issue. But with vaccines, “there is no debate.” Based on “misinformation” that his mother believed, “I was allowed to attend a public high school despite placing my classmates in danger of contracting multiple preventable diseases.”

Medical experts testified about extreme danger from measles, worry about a well-organized and orchestrated anti-vaccination movement that spreads misinformation on social media, and alleged absence of severe long-term adverse effects such as autism.

Sen. Bill Cassidy, M.D., (R-La.) called claims of an autism link “outlandish,” and said, “The overwhelming conclusion of medical literature indicates that the benefits of vaccines dramatically outweigh the limited risks.” People who refuse to be inoculated “should surrender the liberty of close contact with others in places like hospitals and schools.” Sen. Rand Paul, M.D., (R-Ky.) said, “Even the government admits that children are sometimes injured by vaccines,” and he did not favor “giving up on liberty for a false sense of security.”

The AMA did not testify at the hearings, but executive vice president and CEO James Madara, M.D., wrote to CEOs of  leading technology companies (Facebook, Pinterest, Amazon, Google, YouTube, and Twitter). He states that “physicians across the country are troubled by reports of anti-vaccine related messages and advertisements targeting parents searching for vaccine information on your platforms.” It applauds actions already taken, but says more needs to be done to “ensure that users have access to accurate, timely, scientifically sound information”—determined by whom? Pinterest does not allow advice—such as anti-vaccination advice—that has detrimental effects on a pinner’s health or public safety.

Physicians for Informed Consent stated that there were gross errors in the memorandum submitted for a Feb 27 House hearing on measles outbreaks. PIC states that mortality for measles in 1959-1962 was about 1 in 10,000 cases, not 1 in 1,000 to 1 in 500 as the memo claimed (physiciansforinformedconsent.org).

AAPS Calendar

May 4. Missouri chapter meeting, Kansas City, MO.

Sep 18-21, 2019. 76th Annual Meeting, Redondo Beach, CA.

Sep 30-Oct 3, 2020. 77th Annual Meeting, San Antonio, TX.

Is Compulsory Vaccination Constitutional?

Proponents of vaccine mandates often cite the 1905 precedent of Jacobson v. Massachusetts, which upheld a law requiring smallpox vaccination enforced by criminal penalties. The Court stated: “There are manifold restraints to which every person is necessarily subject for the common good…. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

The Massachusetts law was passed in the context of imminent danger from smallpox, a highly contagious disease with a mortality rate of about 30%.

Jacobson also contained “robust cautionary language,” calling attention to the potential for “arbitrary and oppressive” abuse of police power and warning against going “far beyond what was reasonably required for the safety of the public.” Jacobson urged courts to be “vigilant to examine and thwart unreasonable assertions of state power,” writes Mary Holland of NYU School of Law. State courts soon broadened the interpretation of Jacobson from imminent danger to prevention, and then to vaccines other than smallpox. A New Jersey court in the late 1940s interpreted Jacobson as justifying all vaccine mandates, “disregarding its language to reject unreasonable, arbitrary or oppressive state actions.”

Holland writes in the Oregon Law Review in 2014 that “public health policies have not attained herd immunity for any childhood disease despite sixty years of compulsory policies and intensive effort.” She advocates “respectful policies to achieve herd effect based on parents’ informed choices.”

Could federal law supersede state exemptions even with no imminent public-health danger and significant vaccine risk?

Vaccine Court Is an Administrative Agency

Unlike a court in the judicial branch created under Article III of the U.S. Constitution, the vaccine court created under the Vaccine Injury Compensation Program (VICP) is a “legislative court” under Article II, thus an executive branch agency. Congress vested it with rulemaking power, “with the unfettered discretion of a trial court,” writes attorney Robert Moxley, who has been involved in more than 100 vaccine-injury cases. No decision is a precedent for subsequent cases, and the proceedings are secret to non-parties. The tribunal and the public health bureaucracy appear “to regard families of the injured as criminals, trying to steal the government’s money.” The right to a civil damages remedy has been supplanted by a statutory entitlement to share in a fund paid by a 75-cent tax on every vaccine—with no constitutional right to a jury trial. Acknowledgment of an injury might undermine public acceptance and herd immunity.

Court Overrules Father on Cross-sex Hormones

The Supreme Court of British Columbia has ruled that a 14-year-old girl can be injected with testosterone despite her father’s concern that irreversible treatments should be delayed until the child is older. The child’s school counselor had encouraged her to identify as a boy, and Dr. Brenson Hurst of BC Children’s Hospital claimed he had a right to treat over her father’s objections under the BC Infants Act. The father would be considered guilty of family violence if he refers to his daughter by her birth name or uses feminine pronouns. He states that clinics may be under intense pressure from transgender activists to fast-track children into hormone treatments, and will appeal to the Supreme Court of Canada.

“Surprise” Bills Resolved in Mediation

About one-third of emergency department visits in Texas result in a bill to the patient for an unpaid balance. Reforms to the state’s mediation program lowered the threshold to participate and  greatly expanded eligibility in 2015 and 2017. Requests are expected to double, reaching 8,000 this year. The clock stops on bill collection efforts when insurers and providers are notified of a request for mediation. An informal telephone conference resolves most cases; about 1,100, one-tenth of those eligible, have been sent to the State Office of Administrative Hearings (SOAH) since 2013. In 2018, the agency received complaints about $8.8 million in qualifying balance (“surprise”) bills. After the telephone conference, insurers paid up $1.6 million. While the agency does not keep track of how much patients end up paying, anecdotal reports are that patients do not receive more bills.

Tip of the Month: Beware of wolves in sheep’s clothing, and beware of programs that change the name Maintenance of Certification (MOC) without ending its burden. The American Board of Urology (ABU) now calls its MOC program Life Long Learning (LLL). But the name change does not correct the problem. ABU requires LLL (formerly MOC) of urologists initially certified after 2006. On its website, ABU places the blame for MOC on the American Board of Medical Specialists, by saying that “MOC is a mandate of the American Board of Medical Specialties (ABMS). This program requires completion of different levels every 2 years.” But the ABMS cannot force specialty societies to do anything. The ABU and all specialty societies should end their membership in the ABMS in protest over MOC. (AAPS continues to sue ABMS over MOC.)

Person or Property?

In an article on “Personhood and the Three Branches of Government,” I. Glenn Cohen, J.D., and Eli Y. Adashi, M.D., of Harvard University write: “In the majority opinion in Roe v. Wade, Justice Harry Blackmun wrote that if the notion of fetal personhood were established, the argument for women’s choice would collapse, ‘for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.’” They find the personhood movement to be “particularly worrisome” because it threatens a “basic human liberty: the right to decide whether or not to have children.” They comment that laws restricting the in-vitro production or destruction of human embryos could “hinder people’s ability to donate embryos for research, which inevitably involves destroying the embryos or otherwise rendering them unusable for reproductive purposes [emphasis added]” (NEJM 6/28/18).

“How is it possible to believe that a human life does not begin with fertilization?” asks John Kasch, M.D., of Sacramento, Calif. “From that moment on, life is a continuum, only interrupted by death.”


Gag Clauses: from HMOs to EHRs. In 1973, the HMO Act, courtesy of Ted Kennedy and Richard Nixon, became law. Finally, care that heretofore went “unmanaged” would be managed by “smart people,” and people would get better care at lower cost. Very soon, HMOs inserted “gag clauses” into physicians’ contracts to prevent them from telling their patients about treatments that the HMO would not authorize so as to maximize profits. Those were outlawed, but 46 years later, they are back. EHRs are supposed to allow government to track every little aspect of one’s “private and confidential” care purportedly to benefit “population health.” But EHR developers put “gag clauses” in agreements to use their software so that physicians won’t be allowed to tell patients about the harm that EHRs can inflict on patients. Vendors with overwhelming market power have prohibited the free exchange of information needed to expose and correct the many defects in EHRs, even those that compromise patient safety. We need to go “beyond removing gag clauses to encourage the open discussion of the risks and benefits associated with EHR use,” writes cardiologist John Levinson of Harvard Medical School (WSJ 3/4/19). Imagine: uncensored academic freedom to discuss all the tools we use!

Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

The New/Old Ideology. In 1989, communism supposedly collapsed in the “Velvet Revolution.” Unlike with Nazi Germany, the perpetrators of communist atrocities were never brought to justice, and the history, including Western collusion with the evil, is largely blotted out in Western schools. Much would have been lost, possibly forever, had Vladimir Bukovsky and Pavel Stroilov not copied thousands of archival documents and brought them to England at great personal risk. (See https://bukovsky-archive.com). Some will be published in an upcoming book, Judgment in Moscow, Soviet Crimes and Western Collusion. Now, 29 years after its “fall,” communism’s global influence has grown by leaps and bounds, promoted constantly by billionaires determined to shape humanity according to their worldview.

Ileana Johnson Paugh,

Why Physicians Become Employees. Hospitals buy practices and pressure their hired hands to refer in-house, where costs are much higher.  For example, the average price of a sigmoidoscopy or anoscopy was $207 for a referral by a physician in private practice and $2,804 for a referral by a physician in a hospital group (WSJ 12/27/18). Doctors leave private practice because of the cost of complying with ever-increasing regulations. Also, younger docs don’t know any better, having been steeped in progressive propaganda in college. Now, ironically, they’re working for big corporations with near-monopolistic pricing power. It’s as if there is a strategic plan to make U.S. medicine so complex and cartel-like that socialized medicine looks wonderful by comparison. 

Craig Cantoni, Tucson, AZ

North Korean Brainwashing. American POWs were kept from escaping by a simple fence and a few armed guards. When captured, the troops were lectured to beyond the point of exhaustion by North Koreans who spoke perfect English. They were told to be thankful that they were rescued from the Yankee imperialists, and told of bad guys like Andrew Carnegie, who made millions by enslaving people then curried public favor through philanthropy. Any who seemed to object would disappear in the night. Later, guards would accuse somebody, often falsely, of something, say the equivalent of accidentally dropping a paper clip, and grill him incessantly until he confessed. The troops learned to confess immediately. The result was very docile, obedient American POWs. In this context, I look at California’s ban on plastic straws. 

Howard (“Cork”) Hayden, Ph.D., Pueblo West, CO

Not Ready for Hospice. I made a  home visit to evaluate a  patient who was being referred for hospice by a hospital HMO group. She was sweeping the porch when I arrived. She had no pain or constitutional symptoms. Her “terminal” diagnosis of bladder cancer was based solely on a urine cytology showing “abnormal cells.” Her daughter demanded further work-up, which revealed no cancer.

Gene Uzawa Dorio, M.D.

Convergent Transformation. The leader of the North Carolina Medicaid agency and the CEO of Blue Cross Blue Shield of N.C. are both graduates of the Obama Administration. Together, they control the medical coverage of nearly 6 million N.C. residents. Thanks to this convergence of public and private sectors,   our state is on the verge of shifting 70% of payments or more to alternative payment models. The basic approach: Coerce physicians and facilities to use EHRs available in cyberspace. Create proxy organizations that dictate how care will be delivered, and place them at considerable financial risk if too much money is spent. Penalize physicians if they violate the protocols. This inherently progressive approach has the imprimatur of both major parties. They can avoid difficult political decisions to truly cut costs, which would require disentangling and deactivating the 75 years of governmental intervention that created the problem.

 Joseph Guarino, M.D., Reidsville, NC