Author: Charles Brown Source: Consumers for Dental Choice and Coalition for Mercury-Free Dentistry
Crushing blow to ADA gag rule: federal judge rules for Breiner. The ADA’s gag rule is headed to the dustbins of history.
With a federal judge giving his imprimatur on Dr. Mark’s free speech rights, it’s clear that mercury-free dentists all over the country should be emboldened to advertise and advocate mercury-free dentistry. We urge you doctors to speak the truth boldly, and if the dental board whines, to show them this article.
The case was decided in First Amendment grounds. We give plaudits to the American Civil Liberties Union of Connecticut, who brought this case. We invite you to express your appreciation to lawyer Annette Lamoreaux, who runs the Connecticut chapter of the ACLU, at AnnetteL@cclu.org
The state of Connecticut also must rightfully pay the ACLU its legal fees. So the dental board’s irrational zeal to enforce the gag rule has cost Connecticut taxpayers, who should know that their dental board (like many others) has no regard for them either.
For Dr. Mark Breiner and his lawyer Lou Blumenfeld, it is a hard-fought victory. We salute Mark for his personal courage to stand up to the special interests, and we salute Lou for ensuring Mark continues to practice dentistry and get people well. Let me, too, pay homage to Mark’s first lawyer who did such outstanding work, the late Rick Ferris.
The victory is a culmination of a seven-year national project. The ADA’s rule of conduct forcing silence on the part of dentists has been one of the greatest impediments to consumers learning the truth about amalgam — or even learning they are mainly mercury and not “silver.” A decade ago, the ADA’s monopoly was unchallenged and the dental boards — it’s still hard to believe — were agents of the ADA, taking licenses from dentists who would not kowtow to the gag rule. Consumers for Dental Choice began a multifaceted grassroots strategy, picking our battles to get us toward victory.
* Late 1990s: In Florida, in Arizona, in Maryland, and elsewhere, we backed dental boards off from wrongfully using their powers to take licenses.
* 1999-01: In California, we petitioned the dental board to end the gag rule. The board appeared to agree, but still would not enforce the Watson law. Led by Anita Vazquez Tibau, our work led to the shutting down of the old dental board in 2001. A chastened new board made clear that dentists have free speech rights.
* 2002-03: With the California dental board shut down over the mercury fillings issue, dental boards began a retreat. In Oregon, Sandy Duffy enlisted the ACLU to lead the fight, who demanded that state Attorney General intercede to get the rule repealed; the strategy worked. In Iowa, the process was lengthier, but the tenacity of local leader Joyce Van Haaften, with Sandy Duffy and the ACLU of Iowa, led to the Attorney General opining that the gag rule must go. In Florida, a team led by lawyer Julie Hilton and DAMS President Bernie Windham caused the Florida dental board to rescind its gag rule proposal.
* 2003-05: In Connecticut, the state’s order to Dr. Breiner to stop writing newspaper articles led us to recommend he go to the ACLU, which he did. The result is the end of the gag rule in another state — but this time via an order of a federal judge! In Alabama, the dental board pulled back from efforts to block Dr. Ada Frazier from advertising she is mercury-free.
* 2005: Some dental boards still don’t have the message. Lawyers Jim Love and Bob Reeves are challenging a recent (and unconstitutional) edict from the North Carolina dental board that stops consumers from learning about mercury-free dentistry. Hopefully the Connecticut case will be useful.
Looming is the case before the Supreme Court of California, being presented by Los Angeles lawyer Shawn Khorrami. That case challenged the ADA directly, where this monopoly uses direct efforts outside of dental boards to enforce the gag rule. Filed in 2001, its dismissal by an appeals court caused Shawn to file an appeal to the state Supreme Court. Over two dozen organizations representing health care, religion, children, the environment, civil rights, health freedom, and other important interests filed friend-of-the-court letters, and the court agreed to hear the case. Oral argument is pending. It is not a free speech case but a consumer protection case.
Charles G. Brown, National Counsel
Consumers for Dental Choice and Coalition for Mercury-Free Dentistry
1725 K St., N.W., Suite 511
Washington, DC 20006
Ph. 202.822-6307; fax 822-6309