A California law that punishes doctors for sharing COVID-19 “misinformation” was blocked on Monday by a federal judge on First Amendment grounds.
The law, which came into effect on Jan 1, prohibits doctors from spreading what the state deems to be misinformation to patients or risk being penalized for “unprofessional conduct,” which could result in their licenses being revoked.
The Legislature approved the law (AB 2098) last year, and it went into effect on Jan 1.
The law has been challenged through separate lawsuits filed by two organizations and a group of doctors on the grounds of First Amendment violations.
Misinformation is defined as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care” under the law. “Standard of care” is understood as the widely accepted treatment protocol among medical professionals for a specific illness or condition.
During a hearing, Senior Judge William Shubb described the law’s definition of misinformation as “nonsense.” He said, “Vague statutes are particularly objectionable when they involve sensitive areas of First Amendment freedoms because they operate to inhibit the exercise of those freedoms.”
The California judge acknowledged that the concept of “standard of care” is not a new principle in the medical field and is widely understood by medical professionals as a treatment protocol for a specific illness or condition. However, the judge also noted that the concept of “contemporary scientific consensus” is new, and it’s not clear how it is being defined or how it will be applied in practice.
The court granted the plaintiff’s motion for a hearing and halted the implementation of the law until a decision is reached on the case.
California Governor Gavin Newsom’s representative, Deputy Attorney General Kristin Liska, said that a medical professional must share misinformation, contradict scientific consensus, and go against the standard of care for punishment to be applicable.
But Shubb questioned how medical professionals would “know” they violated the law.
“Then how do you expect doctors to know what may violate the law?” he asked.
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Still, opponents of the rule warned of its “chilling effect.” One of the doctors challenging the law is Dr. Tracy Høeg. After the hearing, Høeg said she was afraid doctors would hold back information when talking with their patients because of the potential to be disciplined. “If this really is about the standard of care then we already have laws in place that will enforce that and protect patients,” Høeg said. Jenin Younes, an attorney representing Høeg and five other doctors in one of the cases, said during the hearing that the law was “about silencing doctors that have a different view from the state.” Younes works for the New Civil Liberties Alliance, a Washington, DC-based organization that strives to “tame the unlawful power of state and federal agencies,” according to its website. Both the northern and southern California affiliates of the American Civil Liberties Union support the challenges to the law, saying the rule is unnecessary and could make doctors less likely to speak openly with their patients. The Medical Board of California and the Osteopathic Medical Board of California have not disciplined anybody under the new rule as of Monday, communications representatives said in emails. Shubb during the hearing also challenged arguments made by Younes and the attorney handling the second case. After Younes said the law would be used to target people who don’t follow along with what the government wants, Shubb replied that one couldn’t know that just by reading it. “The statute is not clear on its face,” Younes replied. “That’s true,” Shubb said, before chuckling.
