By RIA ROEBUCK JOSEPH
THE CENTER SQUARE CONTRIBUTOR
(The Center Square) – The New Civil Liberties Alliance (NCLA) is challenging Assembly Bill 2098 which penalizes physicians who “disseminate misinformation related to Covid-19.”
The NCLA representing Tracy Høeg, M.D., Ram Duriseti, M.D., Aaron Kheriaty, M.D., Pete Mazolewski, M.D. and Azadeh Khatibi, M.D., argued before Senior Judge William Shubb of the U.S. District Court for the Eastern District of California, that the AB 2098 violates the First Amendment rights of free speech and the Fourteenth Amendment rights to due process of the law, of the physicians.
The law which was signed by Gov. Gavin Newsom on Sept. 30 2022 seeks to discipline physicians and surgeons through the Medical Board of California and the Osteopathic Medical Board of California by designating “misinformation and disinformation related to the SARS-CoV-2 coronavirus, or ‘COVID-19,’ as unprofessional conduct.”
California’s existing law already requires the boards to take action against medical practitioners for unprofessional misconduct. By defining certain kinds of speech as misconduct, physicians could be disciplined or lose their licenses.
The law defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Judge Shubb called the law’s definition of misinformation “nonsense.”
The NCLA argued that “The term ‘contemporary scientific consensus’ is undefined in the law and undefinable as a matter of logic. 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.”
The complaint stated that the terms in AB2098 are unconstitutionally vague and in violation of the Fourteenth Amendment putting physicians in the very difficult position of having to know what the “consensus” is at any given moment while trying to best advise patients and their individual circumstances.
The complaint noted that the bill infringed on “First Amendment rights because it impedes their ability to communicate with their patients in the course of treatment.” This impediment comes from the imposition of the board’s view-point on what constitutes “contemporary scientific consensus,” and “the First Amendment applies not only to expression of majority opinions, but to minority views as well.”
“At a hearing on NCLA’s motion to enjoin AB2098, 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,” said NCLA Senior Litigation Counsel, Greg Dolin, M.D. “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.”
