Last week, a federal judge blocked the enforcement of a California law passed last year that punishes medical professionals for giving “false information” about COVID-19 to their patients.
AB 2098 allows the Medical Board of California (MBC) to revoke the medical license of any doctor whose speech does not align with the political views of the state. For example, if a doctor tells a patient that masks may not prevent the spread of infection, or that the experimental mRNA injections could be harmful, he or she may be barred from practicing medicine in California.
A group of doctors and two organizations have filed two separate lawsuits against state officials in the United States District Court in Sacramento. They asked Judge Shubb to block enforcement of the bill while their cases play out in court.
Thankfully, Senior Judge William Shubb said the bill’s definition of “misinformation” was “unconstitutionally vague,” citing the 14th Amendment’s due process clause. The bill’s definition of “misinformation” reads, “false information contradicted by contemporary scientific consensus contrary to the standard of care.”
In their lawsuit, the doctors said that the law gave them no way to determine what was “contemporary scientific consensus,” and argued that it violated their right to free speech.
Shubb called the bill’s definition “nonsense” and said that it was “grammatically incoherent.”
“The statute provides no clarity on the term’s meaning, leaving open multiple important questions,” the judge’s order said. “For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)?” He also noted that “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
Opponents of the bill have rightfully raised concerns about free speech, saying the rule creates a “chilling effect” on conversations between doctors and their patients due to the looming threat of punishment if doctors say the wrong thing. However, Shubb did not address the law’s constitutionality, saying its vagueness was enough to stop its enforcement.
An attorney representing the doctors who filed a lawsuit added to concerns about First Amendment rights, saying the rule was intended to silence differing viewpoints.
Managing attorney at the Liberty Justice Center Daniel Suhr shares the same concerns, saying “We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional. Doctors enjoy the same free speech rights as other Americans. The State of California cannot define a so-called scientific consensus on an issue and then punish anyone who dares challenge it.”
Suhr is absolutely right. This law hinders the possibility of an honest doctor-patient relationship. It will also force many of the best doctors to flee California.
Hopefully, the doctors and organizations who filed the lawsuits finally hold state officials accountable for attempting to control speech and violate First Amendment rights.