5th Circuit Court of Appeals Revives Doctors Claim FDA Overstepped Its Authority on Ivermectin

(AP Photo/Andrew Harnik, File)

As the nation got deeper into the COVID-19 pandemic, and the federal and local governments began restricting movement and rights there was a concerted effort on the part of the media, in conjunction with the government to shut down any discussion that ran counter to the accepted dogma. The FDA was consistently jumping into public discussion and overstepped its authority. 


Joe Rogan contracted COVID and famously made an appearance on video. Looking under the weather he said that, under the advice of his doctor, he would be taking Ivermectin. 

Scolds in the media mocked him for taking a “horse dewormer drug”, and mocked him as a fool listening to charlatans. Rogan made another appearance within days – looking healthy and asserting that he had recovered from COVID. He then turned the tables on the media which lied about his treatment.  

And, there were numerous doctors who defended Rogan and pointed out that ivermectin is a commonly prescribed medication for humans, and that Rogan had not taken the related animal de-worming drug. No matter – anyone who claimed the ivermectin was safe for humans (if not a COVID treatment) was mocked and silenced by the media. Rogan mocked them right back 

Doctors who made any mention that ivermectin could be, even a potential treatment for COVID were universally treated as heretics and candidates for the stake. Doctors were harassed by colleagues and, the FDA. Specifically, three doctors, Dr. Robert L. Apter, Dr. Mary Talley Bowden, and Dr. Paul E. Marik alleged that the FDA singled them out for punishment. They were fired, or silenced. 


They filed a federal lawsuit in Texas alleging the FDA overstepped its authority. As reported by RedState just two weeks ago:

 Drs. Paul Marik, Mary Bowden, and Robert Apter first brought the lawsuit in 2022 in the Southern District of Texas. Their contention was that the CDC and FDA are not allowed to give medical advice, and the public information campaign carried out by those agencies crossed the line from information to setting medical policy for doctors and pharmacies. 

In short, the doctors were asserting the FDA “are not doctors” and it should stay in its lane. The trial court agreed with the FDA on various grounds including standing, and dismissed the case. The 5th Circuit in New Orleans disagreed, reviving the case and sending it back to the trial court.  

As reported by the AP

The doctors can proceed with their lawsuit contending that the FDA’s campaign exceeded the agency’s authority under federal law, the ruling said. 

“FDA is not a physician. It has authority to inform, announce, and apprise—but not to endorse, denounce, or advise,” Judge Don Willett wrote for a panel that also included Jennifer Walker Elrod and Edith Brown Clement. “The Doctors have plausibly alleged that FDA’s Posts fell on the wrong side of the line between telling about and telling to.”

The lawsuit was dismissed in December by U.S. District Judge Jeffrey Vincent Brown, who ruled that the complaints didn’t overcome the FDA’s “sovereign immunity,” a concept that protects government entities from many civil lawsuits regarding their responsibilities. The appellate panel said the FDA’s alleged overstepping of its authority opened the door for the lawsuit.


My colleague Streiff pointed out that the Justices on the 5th Circuit did not buy the government’s argument(s) and appeared, at oral arguments, to be inclined to reverse the dismissal. And on Friday, the panel did just that.

It will interesting to see how the FDA defends its draconian tactics at trial.



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