Doctors Without Voices?

In California, it seems now, everything is legal.  

Take $949 worth of stuff from the CVS? Have a nice day!

Use the subway as a bathroom? That’s okay!

Be a doctor and tell a patient you may have misgivings about the response to the COVID pandemic?  Verboten!

Last year, Governor Gavin Newsom signed AB 2098, a law that could cost doctors their licenses if they treated COVID in a manner at odds with “scientific consensus,” i.e. essentially whatever happened to be coming out the CDC that particular day (remember, it changed a lot.)

The law was immediately challenged in court and in one of the cases, filed on behalf of five California doctors by the DC-based New Civil Liberties Alliance and is being handled in the California courts by attorney Laura Powell. In that case an injunction against the five doctors was ordered by United States District Court Judge William Shubb (the other cases are at varying procedural levels), as the Globe reported.

Shubb, in his ruling, called the law far far too vague, noting that terms like “contemporary scientific consensus,” the impossible to define, ever-shifting “standard” in the law for example, “does not have an established technical meaning in the medical community” and the state’s “expert declarations they offer are notably silent on the topic.”

The judge noted that “At oral argument, defense (state) counsel declined to explain what specific conduct the law may prohibit” and that “Because the term “scientific consensus” is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”

Finally, Shubb found that “The provision of AB 2098 stating that (actionable) misinformation or disinformation must be conveyed “in the form of treatment or advice” is confusing for the same reason … A doctor’s advice might suggest a particular course of action or treatment (e.g., “you should not get the vaccine”). This advice is distinct from any information that might be conveyed to a patient in conjunction with the advice (e.g., “scientific studies show that the vaccine carries a risk of health complications for patients in your situation”). The statute improperly conflates “information” with “advice” or “treatment.”  

The vagueness of the law and its legal limbo standing raises concerns about exactly what doctors can say about COVID. Take, for example, this week’s report of the Norfolk Group, a group of eight doctors – some based in California, all experts in their fields – on the COVID response and the need for tough questions to be asked – and answered – publicly by those in charge, hopefully, like in other countries, by a government-empaneled commission with subpoena powers.

Raising the question that if the law were in full force, would it be legal to create and distribute?

The report, in part written by two of the three doctors behind the Great Barrington Declaration which called for a response more targeted to those most at-risk like the elderly or infirm rather than the destructive blanket response of Dr. Anthony Fauci, et. al., raises serious questions about COVID, serious enough if a doctor said them in California they may run afoul of AB 2098.

From the report’s introduction:

America’s response to the COVID-19 pandemic failed on many levels of government and in many aspects. Certainly, deaths are unavoidable during a pandemic. However, too many U.S. policy makers concentrated efforts on ineffective or actively harmful and divisive measures such as school closures that generated enormous societal damage without significantly lowering COVID-19 mortality, while failing to protect high-risk Americans. As a result, Americans were hard hit both by the disease and by collateral damage generated by misguided pandemic strategies and decisions that ignored years of pandemic preparation guidance crafted by numerous public health agencies, nationally and internationally.

And the questions include:

1. What could have been done to better protect older high-risk Americans, so that fewer of them died or were hospitalized due to COVID-19?

2. Why was there widespread questioning of infection-acquired immunity by government officials and some prominent scientists? How did this hinder our fight against the virus?

3. Why were schools and universities closed despite early evidence about the enormous age-gradient in COVID-19 mortality, early data showing that schools were not major sources of spread, and early evidence that school closures would cause enormous collateral damage to the education and mental health of children and young adults?

4. Why was there an almost exclusive focus on COVID-19 to the detriment of recognizing and mitigating collateral damage on other aspects of public health, including but not limited to, cancer screening and treatment, diabetes, cardio-vascular diseases, childhood vaccinations, and mental health?

The entire report can be found in PDF at the end of this article or you can visit https://www.norfolkgroup.org/ .

In part due to its vagueness and, obviously, in part due to its grossly anti-free speech First Amendment issues (which Shubb didn’t see as necessary to rule on yet because it was vague,) the law, even with its current legality uncertainly, may not have to spark any direct enforcement actions against doctors.

“It is the chilling effect that it manifests that has already done harm, even if it is never used to actually discipline a doctor,” Powell said.

And that effort to muzzle professional speech, it seems, was the point of the law all along.