A new California law gives the state unprecedented control over what doctors can say to their patients about COVID-19.
"We've got to stop the disinformation pipeline," an emergency physician supporting California's AB 2098 told the California Assembly in April.
Stanford economist and medical school professor Jay Bhattacharya, a leading critic of the law, says that it "puts the [Center for Disease Control] in the same room with the doctor and the patient," violating a basic trust.
Governor Gavin Newsom signed AB 2098 into law in September, meaning that starting in 2023, doctors who disseminate what the state defines as "misinformation or disinformation related to the SARS-CoV-2 coronavirus" can face disciplinary action by the California Medical Board, including being stripped of their licenses.
"It essentially ends your ability to combat bad ideas put out by public health because you have this looming power that over you that essentially can end your career," says Bhattacharya.
He was one of several scientists whose work NIH Director Francis Collins said needed a "quick and devastating published takedown" in an email to Anthony Fauci that was obtained through a FOIA request, after Bhattacharya had participated in the Great Barrington Declaration, an October 2020 open letter calling for an immediate end to the lockdowns and use of an alternative COVID-19 mitigation strategy called "focused protection."
Collins called Bhattacharya—an M.D. and Stanford professor—a "fringe epidemiologist," along with his co-signers, Harvard's Dr. Martin Kulldorff, and Oxford University's Dr. Sunetra Gupta.
"This kind of campaign essentially put the government in the role of suppressing legitimate public policy debate," says Bhattacharya about Fauci and Collin's actions. "The idea was to create this illusion of consensus around the lockdowns that didn't actually exist."
That same illusion of consensus, Bhattacharya says, is what California is leveraging to quash dissent among doctors across the entire state with this new law.
AB 2098 defines COVID-19 "misinformation" as medical advice "contradicted by contemporary scientific consensus," though does not specify how to define such a consensus.
"Regardless of your views on the state of California's coronavirus response policies or their public health policies, I think any person—left, right, liberal, conservative—who goes to their physician and asks them a question about COVID treatment…wants to actually know what their physician thinks," says Aaron Kheriaty, a psychiatrist and former professor who taught bioethics at the University of California, Irvine's medical school. "No one wants a doctor who's just reading from a script that was written by the California Department of Public Health."
U.C. Irvine fired Kheriaty after he refused to comply with the university's vaccine mandate and published an essay critical of the policy. He's also a co-plaintiff in a lawsuit filed by the New Civil Liberties Alliance, a nonprofit law firm that "views the Administrative State as an especially serious threat to constitutional freedoms." The suit, which has yet to be heard, is challenging the California law on the grounds that it violates free speech and due process rights.
"Science and censorship are, in fact, incompatible," says Kheriaty. "[Science] has to be an ongoing, open conversation where debate, where novel perspectives, where challenges to orthodoxy or conventional thinking are not only permitted, but welcomed and then tested against the empirical evidence."
Kheriaty worries that AB 2098 will "lock" whatever the current consensus happened to be into law as "something cannot be challenged." The bill's authors didn't reply to our interview requests, but Democratic Assemblyman Evan Low said this when introducing the bill: "The definition of misinformation is malicious intent. It is very specific, very direct. And it's important that we help the California Medical Board to have these tools and provide an opportunity to save lives."
Bhattacharya points out that medical malpractice laws, which he views as "completely legitimate," already exist to protect patients against malicious or negligent doctors. But he says AB 2098 goes much further by preventing "doctors from dissenting against reigning ideas in public health, even when public health is wrong."
To address these concerns, Governor Gavin Newsom added a signing statement that "this bill does not apply to any speech outside of discussions related to COVID-19 treatment within a direct physician patient relationship." But Bhattacharya says supporters of the law from the very beginning expressed eagerness to use it to silence doctors on social media.
The lawsuit against the new law alleges that one of the groups that lobbied for the law—No License for Disinformation, whose representatives didn't reply to our interview request—regularly threatened dissenting physicians in the lead-up to AB 2098's passage, with one member of the group tweeting at a plaintiff, "I look forward to reporting you to your medical board once a certain law is passed in California." When we reached out, he told us via Twitter DM that "I hope their suit gets tossed" and "they all deserve to lose their licenses."
During testimony in favor of the bill, Nick Sawyer, an emergency medicine doctor and founder of No License for Disinformation, didn't focus on a physician dispensing misinformation to a patient, but rather on a group calling themselves American's Frontline Doctors, who held a press conference in July 2020 promoting treatments such as hydroxychloroquine, which Sawyer described as "the most prolific public showing of misinformation to date."
Regardless of how one feels about the message put forth by this particular group of doctors, Bhattacharya says that mentioning them during the debate of the bill is evidence that the law's target is not only, or even primarily, physicians in practice, but any public dissent from medical doctors.
"The effect of the law will be to suppress free discussion by doctors who are afraid of losing their license if they disagree with public health online and elsewhere," says Bhattacharya.
The rationale written into the text of the law is that COVID-19 has "claimed millions of lives worldwide," including tens of thousands in California and that "the safety and efficacy of COVID-19 vaccines have been confirmed through evaluation by the Federal Food and Drug Administration." Kheriaty says this latter claim was "plausible" early on but that the waning efficacy of the vaccine calls for a more nuanced discussion that physicians should be free to have with their individual patients.
"A doctor's recommendation has to be tailored to the needs of this specific patient in front of me," says Kheriaty. "So it's not necessarily the case that a doctor who's recommending the vaccine for an 80-year-old with diabetes would also want to recommend the same vaccine for a six-year-old or a 16-year-old."
Kheriaty says that this law is the latest example of a trend towards an increasingly centralized, bureaucratic health system that prioritizes control and surveillance over individual patient needs, a topic he covers at length in his book The New Abnormal: The Rise of the Biomedical Security State, which he says describes the "melding of public health, digital technologies of surveillance and police powers of the state."
To reverse the trend of increasingly bureaucratic and centralized public health, Kheriaty recommends first ending the declared state of emergency at all levels of government. He also favors decentralizing research funding so that less of it is directed by federal officials like Anthony Fauci and Francis Collins at the National Institutes of Health—both of whom can make or break the career of a scientist by funding or denying them grant money.
The lawsuit against California was filed in November and has yet to be heard by a judge. If no ruling is issued in the coming weeks, AB 2098 will become California law starting January 1.
"Public health should not rule over the public," says Bhattacharya. "Public health should be partners with the public in promoting health. I think 'humility' would be the watch word in my reform of the public health world."
Produced by Zach Weissmueller; edited by John Osterhoudt; camera by Jim Epstein and Osterhoudt; graphics by Regan Taylor; additional graphics by Lex Villena.
Photo credits: Ken Cedeno/UPI/Newscom; Paul Kitagaki Jr./ZUMAPRESS/Newscom; Beverly Willis Architects, Inc., CC BY-SA 3.0, via Wikimedia Commons; Envato; CNP/AdMedia/Newscom; CNP/AdMedia/Newscom; Brett Raney; Hector Amezcua/TNS/Newscom; gbdeclaration.org; BylineStefani Reynolds—Pool via CNP/MEGA/Newscom; Tom Williams/CQ Roll Call/Newscom; CNP/AdMedia/SIPA/Newscom; CNP/AdMedia/SIPA/Newscom; Dominick Sokotoff/ZUMAPRESS/Newscom; Ron Lyon/ZUMAPRESS/Newscom; Ron Lyon/ZUMAPRESS/Newscom; Ron Lyon/ZUMAPRESS/Newscom; Ron Lyon/ZUMAPRESS/Newscom; Paul Kitagaki Jr./ZUMAPRESS/Newscom; Paul Kitagaki Jr./ZUMAPRESS/Newscom