The U.S. District Court for the Eastern District of California granted a preliminary injunction that blocks a state law that would have allowed the state’s medical boards to punish and silence doctors for warning their patients about the dangers of COVID-19 shots and other information based on thorough scientific research but considered as “COVID misinformation” by state officials.
In Tracy Hoeg, M.D., PhD., Ram Durisetti, M.D., PhD. et al., v. Gavin Newsom, Governor of the State of California, et al., Judge William B. Shubb wrote a 30-page opinion in favor of the five plaintiff doctors. Judge Shubb determined that California Gov. Gavin Newsom, Attorney General Rob Bonta and California Medical and Osteopathic Boards provided “no evidence that ‘scientific consensus’ has any established technical meaning,” and that the law provides “no clarity” on the meaning of the word “misinformation.”
Judge Shubb also found the “plaintiffs have established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges.”
California Assembly Bill 2098 (AB 2098) bans doctors “from providing ‘treatment or advice’ ‘to a patient’ ‘related to COVID-19’ when that treatment or advice includes (1) ‘false information’ (2) ‘that is contradicted by contemporary scientific consensus’ (3) ‘contrary to the standard of care.’ If doctors go against this, they are guilty of ‘unprofessional conduct’ and can face disciplinary action.”
The lawsuit was filed after Gov. Newsom signed AB 2098 on Sept. 30, 2022, which was set to take effect Jan. 1, 2023. AB 2098 was introduced in February 2022, by Assemblymember Evan Low, who had previously formed the Vaccine Work Group with six other Democratic lawmakers, with the intent of developing legislation promoting COVID-19 vaccines and “battling misinformation.” AB 2098 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.”
In his opinion, Judge Shubb notes that terms in AB2098 are unconstitutionally vague and in violation of the Fourteenth Amendment and puts 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 court also notes 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 viewpoint on what constitutes “contemporary scientific consensus,” and “the First Amendment applies not only to expression of majority opinions, but to minority views as well.”
Judge Shubb’s ruling prevents enforcement of AB 2098 pending resolution of the lawsuit. Judge Shubb’s ruling technically is limited only to “the plaintiffs, all persons represented by the plaintiffs, and members of the organizations that filed the lawsuits.”
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.”
In his opinion Judge Shubb wrote, “The statute defines ‘misinformation’ as ‘false information that is contradicted by contemporary scientific consensus contrary to the standard of care.’ The statute defines ‘disinformation’ as ‘misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.’ The misinformation or disinformation must be conveyed ‘[by] the licensee to a patient under the licensee’s care in the form of treatment or advice.’ Physicians and surgeons licensed by the Medical Board or the Osteopathic Board (the ‘Boards’) are covered by the statute.”
Judge Shubb also does not mince words about the statue being too vague.
“It is inappropriate to apply a lower vagueness standard here because, based on the record before the court, it appears that the primary term at issue—’contemporary scientific consensus’–does not have an established technical meaning in the medical community. Physician plaintiffs provide declarations explaining that ‘scientific consensus’ is a poorly defined concept.”
“And what source or sources should physicians consult to determine what the consensus is at any given time (perhaps peer-reviewed scientific articles, or clinical guidelines from professional organizations, or public health recommendations)? The statute provides no means of understanding to what ‘scientific consensus’ refers.”
“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.’”
In addition the court wrote, “AB 2098 does not apply the term ‘scientific consensus’ to such basic facts, but rather to COVID-19–a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested. COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
“Drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible.”
Liberty Counsel Founder and Chairman Mat Staver wrote, “This a great decision that stops the radical ideology by Governor Newsom and his state officials who want to muzzle doctors from speaking about COVID, the shots, and treatment. Muzzling doctors and scientists is very dangerous and should have not any foothold in America.”
