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Free Speech

Court Refuses to Block California Ban on COVID "Treatment or Advice" That's "Contrary to the Standard of Care"

The law 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." The law regulates only speech to patients, not to the public at large.


California's recently enacted AB 2098 bars 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." The law makes such treatment or advice "unprofessional conduct," for which doctors can be disciplined by disciplinary authorities. The law is limited to speech to particular patients; it doesn't apply to speech to the public at large.

Yesterday's decision by Judge Fred Slaughter (C.D. Cal.) in McDonald v. Lawson held that this statute was likely constitutional, on the grounds that it fits within the traditional regulation of doctors' professional conduct:

[California law has long] permitted licenses to be refused or revoked for unprofessional conduct. California courts have found such "unprofessional conduct" to include, in some circumstances, a medical practitioner's speech to patients. See, e.g., Fuller v. Bd. of Med. Exam'rs, 14 Cal. App. 2d 734, 740-41 (1936), abrogated on other grounds as recognized by Hughes v. Bd. of Architectural Exam'rs, 17 Cal. 4th 763, 784-85 (1998) (upholding sanctions on physician charged with unprofessional conduct who made false claims about his ability to treat hernias)….

More generally, "gross negligence," "repeated negligent acts," and "incompetence" are included in the [existing] definition of "unprofessional conduct." Under California law, "gross negligence" is defined as "the want of even scant care or an extreme departure from the ordinary standard of conduct"; "negligence" is a "simple departure" from the current standard of care; and the "term incompetency generally indicates an absence of qualification, ability or fitness to perform a prescribed duty or function." The "standard of care" for medical practitioners is the reasonable degree of skill, knowledge, and care as that of practitioners under similar circumstances….

By its terms, AB 2098 applies to physicians and surgeons licensed in California. The measure's definition of "misinformation" is comprised of three components: (1) demonstrably false information; (2) contradicted by contemporary scientific consensus; and (3) contrary to the standard of care….[T]o be "misinformation" under AB 2098, the state must show that a scientific consensus exists, the information provided by a surgeon or physician both runs contrary to it and is demonstrably false, and providing that information in the context of treatment or advice to a patient would be contrary to the skill, knowledge, and care exercised by a like colleague in similar circumstances. Accordingly, the court finds "misinformation" is not impermissibly vague, in that it requires, by its statutory text, a false statement of information that is contradicted by contemporary scientific consensus, which further runs afoul of the applicable standard of care….

The court noted that Ninth Circuit precedent generally treats regulations of medical practice as regulations of conduct rather than speech, even when the practice involves speech, and added that

AB 2098 regulates only "the conveyance of ['mis-' and 'dis- '] information from the [physician or surgeon] to a patient under the [physician's or surgeon's] care in the form of treatment or advice," i.e., only the information underlying the covered medical professional's advice rather than their particular opinion. It "does not to prevent licensed [medical professionals] from discussing the pros and cons" of their preferred course of treatment. It only requires that, while administering medical treatment or advice to a COVID-19 patient, a doctor avoid providing demonstrably false information that is contradicted by the prevailing scientific consensus in manner violative of the standard of care.

And it went on to reason:

[T]he Supreme Court has permitted "restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" without the application of strict scrutiny…. The Ninth Circuit … [has] proceeded to recognize the "long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders."

The Ninth Circuit further emphasized that "such regulation of the health professions has applied to all health care providers," and "the [Supreme] Court has upheld substantive regulations on medical treatments based upon differences of opinion and, in doing so, has relied upon the positions of [] professional organizations … , even when those positions have changed over time." The Ninth Circuit cautioned against discounting the "long tradition of this type of regulation" in a way that "would endanger centuries-old medical malpractice laws that restrict treatment and the speech of health care providers," emphasizing that "[w]hen a health care provider acts or speaks about treatment with the authority of a state license, that license is an 'imprimatur of a certain level of competence.'"

While, as discussed above, the court finds AB 2098 independently satisfies the applicable scrutiny analysis, the court further observes binding case law would otherwise militate towards upholding the statute "as falling into the tradition of regulations on the practice of medical treatments" if not "falling into the exception from heightened scrutiny for regulations on professional conduct that incidentally involve speech." … "The norm that units of government may require physicians (and other professionals) to provide accurate information to their clients long predates [Planned Parenthood of S.E. Pa. v.] Casey[, 505 U.S. 833, 882 (1992)] and has not been disturbed since." …

California law follows this long tradition …; going back to as early as 1876, California statutes have provided for the discipline of medical practitioners and the revocation of their licenses for "unprofessional conduct." To violate AB 2098, a physician or surgeon's conduct must run afoul of both historical conscriptions [likely meaning "proscriptions" -EV]: a physician or surgeon must violate an established medical standard (the standard of care) that is accomplished by means of specified conduct (conveying information related to the treatment or advice of COVID-19 that is false and contradicted by the contemporary scientific consensus). Accordingly, the court finds it fits comforably within the long tradition of California's, and the states', regulation of medical practice, which further supports the court's finding it is constitutional.

The court didn't discuss whether a selective prohibition focused just on COVID-19, rather than just dealing (as malpractice and unprofessional conduct generally does) with all medical advice and treatment, might be impermissibly selective and thus be forbidden by R.A.V. v. City of St. Paul (1992). But this might have stemmed from the challengers' only briefly touching on this aspect of R.A.V. (see the last full paragraph of p. 6 of their preliminary injunction motion), at least as best I can tell.