California Quietly Repeals Restrictions on Doctors' COVID-19 Advice
Several federal judges had expressed skepticism about the constitutionality of penalizing physicians for departing from a government-defined "consensus."
California legislators last month quietly repealed a 2022 law that authorized disciplinary action against doctors, including loss of their medical licenses, when they share COVID-19 "misinformation" with their patients. The law, A.B. 2098, defined that ambiguous and highly contested category of speech as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care."
Not sure what that means? Neither were the California physicians who challenged the law on First Amendment grounds in two separate lawsuits. They argued that the state's amorphous definition of prohibited medical advice was bound to have a chilling impact on constitutionally protected speech.
In McDonald v. Lawson, which the Liberty Justice Center (LJC) filed in the U.S. District Court for the Central District of California on October 4, 2022, Judge Fred Slaughter declined to issue a preliminary injunction, concluding in a December 28 order that A.B. 2098 was probably constitutional. Four weeks later in Høeg v. Newsom, which the New Civil Liberties Alliance (NCLA) filed in the U.S. District Court for the Eastern District of California on November 2, Judge William B. Shubb reached the opposite conclusion.
Shubb blocked enforcement of the law, which he said "fails to provide a person of ordinary intelligence fair notice of what is prohibited" and "is so standardless that it authorizes or encourages seriously discriminatory enforcement." When the U.S. Court of Appeals for the 9th Circuit heard oral arguments in McDonald v. Lawson on July 17, two members of the three-judge panel likewise expressed skepticism about the state's defense of A.B. 2098, which may explain why legislators decided to ditch it.
"After a year of litigation," the LJC announced last week, "California conceded the inevitable and repealed [A.B. 2098], the State's blatantly unconstitutional attempt to censor the free speech of doctors throughout the state. The repeal comes on the heels of oral argument in McDonald v. Lawson, where the state faced an icy reception from the Ninth Circuit Court of Appeals."
Although icy may be too strong a word, California Deputy Attorney General Kristin Liska definitely ran into trouble when she argued that the state's new, disease-specific restrictions on medical advice, which covered issues such as "the nature and risks of the virus," "its prevention and treatment," and "the development, safety, and effectiveness of COVID-19 vaccines," were perfectly consistent with the First Amendment. Ninth Circuit Judge Danielle Forrest suggested that California had departed from "the normal regulatory framework" by "honing in on" information about one "particular thing" and "saying that we have to have a consensus" about it. It "seems odd," she said, "to pass a statute that specifically addresses this topic and then to fold in there some sort of consensus requirement."
A.B. 2098 "does not mandate that there has to be a consensus," Liska replied, and "there may well be situations where there is no scientific consensus or where multiple options fall within the standard of care." But she said some kinds of "egregious" advice—such as claims that "the vaccines contain microchips that will have aliens abduct you," that "the vaccines make you magnetic," or that "they'll make you infertile"—are "just not acceptable to give to a patient in the specific context A.B. 2098 covers, which is within the exam room…while caring and treating for an individual patient."
Forrest pressed Liska to go beyond those "dramatic examples." Suppose, she said, a patient asks whether she should get her "small kids" vaccinated, and the doctor replies, "Well, I mean, it's up to you, but I'll just tell you I didn't, because I think that small children are less at risk." Would that doctor be subject to professional discipline under A.B. 2098?
"If what they say is false, is contradicted by the contemporary scientific consensus, and [is] outside the standard of care, they could be, yes," Liska said. "It's difficult—"
Here Forrest interrupted Liska and asked her to "apply this law to the scenario I just described." After all, she said, "the statute doesn't define what the consensus is," so "how is a doctor…gonna know what he should or shouldn't say?" Liska again invoked "the standard of care," which she says applies "in all contexts" of medical regulation. But as Forrest noted, A.B. 2098 seemed to modify the standard of care by adding a requirement that doctors hew to a government-recognized consensus.
"Isn't that exactly what they're worried about?" Judge Kathleen Cardone asked. "What is that standard of care, particularly when it pertain[s] to COVID? I think that's what Judge Forrest is asking you….How does a doctor know where they're supposed to be? Isn't that exactly why they were afraid of this statute?"
Forrest also asked Liska to address a point that LJC attorney (and president) Jacob Huebert made during his oral argument. "From the very beginning" of the pandemic, Huebert noted, "people's ideas about how to treat [COVID-19] and how to prevent it were constantly evolving, and something that was considered appropriate one day might not be considered appropriate the next." Forrest wondered whether A.B. 2098 allowed for the fact that "we need discussion because what we know today might be improved, might change, because we'll learn something different tomorrow."
Liska said A.B. 2098 "leaves a lot of room for a discussion to take place in ways that minimize the potential harm," because "a lot of speech is left untouched." Without risking their licenses and livelihoods, she said, doctors could still "publish articles in scientific journals," "go on talk shows," "post on their blogs," and "engage in research studies."
Notably, however, it was public comments like these that offended the legislators who enacted A.B. 2098. They cited "news stories about how there are doctors saying things that are just egregious," as Liska put it, which they thought showed "things coming up that are concerning" and "potentially harmful." But according to Liska, the new law did not constrain such statements at all, which would be even more clearly unconstitutional than trying to dictate what doctors say to patients.
Two California affiliates of the American Civil Liberties Union joined the LJC and the NCLA in arguing that A.B. 2098 was gratuitous and unconstitutional. That did not deter the state from defending the law before the 9th Circuit. But legislators reconsidered the wisdom of their speech restrictions less than two months after the oral arguments in that case.
In February, the month after Shubb enjoined enforcement of A.B. 2098, California legislators began considering S.B. 815, a medical regulation bill that initially said nothing about limits on medical advice regarding COVID-19. Last month, the bill was amended to "repeal" the provision that said "it shall constitute unprofessional conduct" for a physician to "disseminate misinformation or disinformation related to COVID-19." The legislature approved that version of S.B. 815 on September 14, and Gov. Gavin Newsom signed it into law two weeks later.
When Newsom signed A.B. 2098 last fall, he averred that it was constitutional because it was "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 Shubb, Forrest, and Cardone noted, doctors had good reason to worry that the law went much further than Newsom claimed.
