On September 30, California Gov. Gavin Newsom signed into law Assembly Bill 2098, which authorizes state regulators to discipline doctors who "disseminate misinformation or disinformation related to COVID-19." The law, which is scheduled to take effect on January 1, defines "misinformation" as advice "contradicted by contemporary scientific consensus." Implicitly acknowledging the First Amendment issues raised by A.B. 2098, Newsom averred that "it is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care."
But as the New Civil Liberties Alliance (NCLA) points out in a federal lawsuit it filed yesterday, Newsom's signing statement does not alter the broad language of A.B. 2098, which will be enforced as written. The NCLA, which is representing five California physicians who object to the new law, argues that it violates the First Amendment by punishing doctors based on the views they express and the 14th Amendment's guarantee of due process by imposing an unconstitutionally vague standard of acceptable speech.
A.B. 2098 redefines the "unprofessional conduct" policed by the Medical Board of California, a state agency charged with licensing and disciplining physicians, to include COVID-19 "misinformation." That category includes "false or misleading information" regarding "the nature and risks of the virus," "its prevention and treatment," and "the development, safety, and effectiveness of COVID-19 vaccines."
While the law's definition of misinformation says it is "contrary to the standard of care," that judgment hinges on whether a doctor's advice to patients contradicts the "contemporary scientific consensus," which the law does not define. And however the board might try to define that standard in practice, it is squarely aimed at dissenters from the perceived consensus, meaning it discriminates against speech based on viewpoint, which is presumptively unconstitutional.
"The law imposes a quintessential viewpoint-based restriction, because it burdens
speech determined by the Board to diverge from the 'contemporary scientific consensus,'" the NCLA says. "In safeguarding Americans' rights to free speech and expression, the First Amendment applies not only to expression of majority opinions, but to minority views as well. Indeed, it is minority views that need protection from government censorship—as this law shows. Nor is there an exception to the prohibition on viewpoint-based discrimination simply because the law applies only to a regulated profession. In short, AB 2098 infringes Plaintiffs' First Amendment rights because it impedes their ability to communicate with their patients in the course of treatment."
Even if a doctor were keen to avoid deviation from the "scientific consensus" regarding COVID-19, he would have a hard time figuring out what that means. "The term 'contemporary scientific consensus' is undefined in the law and undefinable as a matter of logic," the NCLA says. "No one can know, at any given time, the 'consensus' of doctors and scientists on various matters related to prevention and treatment of Covid-19. And even if such a poll could theoretically be taken, who would qualify to be polled? Only those doctors treating Covid-19 patients? All doctors and scientists, or only those in certain fields? Who determines which fields? How often would such polls be taken to ensure the results are based on the most up-to-date science? How large a majority (or plurality) of the polled professionals qualifies as a 'consensus'? The very existence of these questions illustrates that any attempt at a legal definition of 'scientific consensus' according to which doctors must operate in their day-to-day practice is impractical and borders on the absurd."
Leaving aside the practical challenge of defining the "scientific consensus" at any given time, that consensus is constantly evolving. The very nature of scientific inquiry means that today's majority view may ultimately be proven wrong. The history of the COVID-19 pandemic is littered with such examples.
The California Medical Association argued that A.B. 2098 was necessary because some physicians had been "calling into question public health efforts such as masking and vaccinations." Yet both of those subjects have generated vigorous, empirically informed debates among scientists.
The Centers for Disease Control and Prevention (CDC) initially dismissed the value of general masking, then embraced it as "the most important, powerful public health tool we have." More recently, it has conceded that commonly used cloth masks do little, if anything, to stop coronavirus transmission. That view had previously been deemed "misinformation" egregious enough to justify removing it from social media platforms.
Before COVID-19 vaccines were available, CDC Director Robert Redfield argued that they would prove less effective than masking at protecting people from the disease. His successor, Rochelle Walensky, implicitly made the same claim as recently as last November. And while the effectiveness of vaccines at reducing the risk of life-threatening symptoms is well-established, it has become clear that they are much less effective at preventing infection, especially by highly contagious variants such as omicron. Meanwhile, there are legitimate questions about the benefits of vaccination and boosters for certain patients, including young children, people in other low-risk groups, and people with natural immunity from prior infections.
A.B. 2098 tells doctors to think twice before offering patients their candid opinions about issues like these. If a physician told a patient, for example, that "cloth masks are little more than facial decorations" (as former Baltimore Health Commissioner Leana Wen put it on CNN last December), that might count as "misinformation" under A.B. 2098, and therefore "unprofessional conduct" worthy of disciplinary action. Likewise if a physician noted the risk of myocarditis in young men who receive COVID-19 boosters, which seems to be very low but is arguably a relevant consideration for patients who face a tiny risk of dying from COVID-19. Even noting the minuscule infection fatality rate among children and teenagers might be seen as "misleading" given a "consensus" in favor of vaccinating everyone.
When it comes to COVID-19 treatment, conventional wisdom likewise has evolved in light of emerging evidence. "At the beginning of the pandemic," the NCLA notes, "the standard of care for treatment of patients with severe Covid-19 was intubation." One of the plaintiffs in the NCLA's lawsuit, Ram Duriseti, an emergency room physician in Burlingame, "resisted invasive intubation while the consensus was evolving." Then "the consensus changed and his view became the prevailing one."
Another plaintiff, John Muir Health surgeon Pete Mazolewski, offers a non-COVID-related example of the same phenomenon. "In the 1990s," the lawsuit says, Mazolewski "was taught that every appendicitis should be operated on as quickly as possible. But around 2000, it became clear to him, based on his professional clinical experience, that immediate appendectomy should not be the standard treatment for all patients diagnosed with appendicitis, as those with complicated situations have far too high a complication rate following surgery." He "found that practicing in accordance with his discovery was not easy, as there was enormous professional peer pressure to follow the 'consensus.' But he did not waver, because he knew it was in his patients' best interests. Today, his approach is standard practice."
By insisting that physicians hew to the "scientific consensus," A.B. 2098 threatens to disrupt this discovery process, which allows skeptics to ultimately prevail when their clinically informed views are validated. Discouraging such dissent undermines patients' welfare as well as doctors' freedom of speech.
The NCLA notes that "physicians who are negligent and commit malpractice (for example, a doctor who advises a patient to inject himself with bleach to treat Covid-19) are already subject to tort lawsuits and disciplinary actions by the Medical Board under existing state law." But A.B. 2098 goes further than that, defining even evidence-based deviations from the COVID-19 "scientific consensus" as "unprofessional conduct."
A.B. 2098's hostility to dissenters seems at odds with California's existing medical regulations, which say a doctor may not be disciplined "solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine." The state defines "alternative or complementary medicine" as "those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient's medical condition that is not outweighed by the risk of the health care method."
When he signed A.B. 2098, Newsom said he was "concerned about the chilling effect other potential laws may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the last few years." The implication was that A.B. 2098 would not have such a chilling effect. But its amorphous "scientific consensus" standard is an invitation to second-guess the honest judgments of clinicians, which is bound to encourage self-censorship. "Plaintiffs are put between a rock and a hard place," the NCLA says, "fearing repercussions for acting in their patients' best interests by giving them the information Plaintiffs believe their patients need."
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