New California Law to Punish Doctors for ‘Covid Misinformation’ Heard in Federal Court

“When seeing a doctor in California now, it is important to understand that you are now visiting a servant of some politicians, not an evidence-based medical professional,” a doctor posted on Twitter in early January. “So health advice should be taken in that “context.”

He was referring to California’s new law to punish doctors for spreading “Covid misinformation,” which went into effect January 1, 2023. Assembly Bill 2098 authored by Assemblyman Evan Low (D-Campbell), and signed into law by Gov. Gavin Newsom, circumvents due process against doctors over “Covid misinformation conduct,” and quashes their right to free speech.

AB 2098 punishes physicians and surgeons for “unprofessional conduct” for advocating for the potential benefits of early treatment with off-label drugs, or those who dare to ask questions about COVID vaccine safety.

It has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views, lawyers with the New Civil Liberties Alliance reports. “Physicians have already experienced threats from other doctors and individuals on social media to use AB 2098 to have their licenses taken away, an obvious attempt to suppress the doctors’ speech.”

Physicians filed a lawsuit in November against the State of California over the new law, which attorneys say violates the 1st and 14th Amendments (free speech and due process).

The New Civil Liberties Alliance (NCLA), a nonpartisan, nonprofit civil rights group, and attorney Laura Powell filed a complaint and motion for a preliminary injunction on behalf of five California doctors in Høeg, et al. v. Newsom, et al.,asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect.

The lawsuit had its first hearing Monday in U.S. District Court for the Eastern District of California.

The Globe spoke briefly with attorney Laura Powell who was at the hearing and reported Judge William Shubb acknowledged in court that the new law is not clear at all.

The NCLA just issued a statement confirming this:

During the argument, Judge Shubb called the law’s definition of misinformation “nonsense.” NCLA represents five physicians licensed by the Medical Board of California. NCLA argued that the term “contemporary scientific consensus” is undefined in the law and is arguably undefinable, which violates Plaintiffs’ Fourteenth Amendment rights to due process of law. Practically speaking, no doctor can know, at any given time, the “consensus” of doctors and scientists on various matters related to prevention and treatment of Covid-19. In the argument, Judge Shubb explored the novelty of doctors now following a supposed “contemporary scientific consensus.”

“At a hearing on NCLA’s motion to enjoin AB 2098, we explained to the Court why this Act is nothing more than a blatant attempt to silence doctors whose views, though based on thorough scientific research deviate from the government-approved ‘party line.’ At no point during the hearing was the State able to articulate the line between permissible and impermissible speech, further illustrating how problematic the statute is. NCLA is confident that the Court appreciates all of the problems created by AB2098 and is hopeful that in light of these problems the Court will reach a correct decision and enjoin this unconstitutional law.” -Greg Dolin, M.D., Senior Litigation Counsel, NCLA

As attorney Laura Powell of Californians for Good Governance noted in 2022, “Since AB 2098 explicitly restricts speech based on its content, it is presumptively invalid. The bill does not address the problem identified. The bill’s authors and supporters point to the problem of doctors who widely amplify falsehoods about Covid-19, but silencing them would violate the Constitution. To remedy the constitutional problems, it would have to be pared down to the point that it would simply duplicate existing law. Proponents are unable to cite a single example of a harm that could be prevented.”

The Globe spoke with plaintiff Dr. Pete Mazolewski several times during the legislative process for AB 2098. He asked somewhat rhetorically, “Who decides what is ‘Covid misinformation?’”

Apparently it is California’s Medical Board, which is currently made up of 12 individuals: 6 Medical Doctors, 3 attorneys, a Public Relations consultant, an “Ethics Reformer,” and a Life Coach.

Under AB 2098, doctors would be subject to disciplinary actions by the Medical Board of California and the Osteopathic Medical Board of California if they do not adhere to the “approved COVID treatment consensus.”

Who approves the “consensus,” Dr. Pete asked. The medical board? Public health officials? Neither the members of the Medical Board nor all of California’s public health officials are licensed medical doctors, he told the Globe. “Yet this is a California Medical Board decision.”

This is the first test case on “Covid misinformation” by medical providers in the United States. The Globe will report on any rulings from the court.