The Volokh Conspiracy
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Court Blocks California Ban on COVID "Treatment or Advice" That's "Contrary to the Standard of Care"
This decision (Hoeg v. Newsom, decided by Judge William Shubb) reaches a result different from that reached four weeks ago in McDonald v. Lawson. I'm on the run, but hope to blog more about this later.
UPDATE: Here's the heart of the opinion, which preliminarily enjoins the operation of the law, as to plaintiffs and their members, on the grounds that the law is unconstitutionally vague:
AB 2098, codified at Cal. Bus. & Prof. Code § 2270, took effect on January 1, 2023. The statute provides that "[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines."
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.
The Boards are tasked with enforcing AB 2098. The statute augments the definition of "unprofessional conduct," which is a pre-existing basis for disciplinary action by the Boards. Unprofessional conduct also includes, but is not limited to, "gross negligence," "repeated negligent acts," and "incompetence." …
"Contemporary Scientific Consensus"
[B]ased 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. For example, Dr. Khatibi explains that there are different notions of scientific "consensus." These include "informal consensus," which refers to the general opinion of doctors, and "formal consensus," which refers to a process by which "a group of doctors with expertise in a particular topic come together to … discuss[] and debate the evidence around a topic," and "arrive at some conclusions for general patient care guidelines," which are then published. Expert declarant Dr. Verma also explains that the term "scientific consensus," as it has come to be used during the pandemic, often refers to the pronouncements of public health officials.
Defendants provide no evidence that "scientific consensus" has any established technical meaning; the expert declarations they offer are notably silent on the topic….
In Forbes, the Ninth Circuit considered a vagueness challenge to a law prohibiting medical "experimentation" or "investigation" involving fetal tissue from abortions unless necessary to perform a "routine" pathological examination. The court relied on testimony from the plaintiffs (who were physicians) and expert witnesses to evaluate the challenged terms, which were not defined by the statute. The experts "highlight[ed] doctors' lack of consensus about what procedures are purely experimental" and pointed out difficulties arising from the changing nature of scientific understanding, by which some "experiments" will eventually become recognized as "treatment." The terms "investigation" and "routine" were problematic because multiple common definitions could apply in the medical community, which "[lacked] any official standards to help" define the terms. The Ninth Circuit reasoned that because the contested terms lacked sufficiently clear, commonly understood definitions in the medical community, and the statute failed to provide narrowing definitions, the statute was unconstitutionally vague. The lack of definitional clarity failed both to give doctors fair notice of what conduct was prohibited, and to give courts and law enforcement sufficient standards by which to narrow the terms' meanings.
Like the contested terms in Forbes, "contemporary scientific consensus" lacks an established meaning within the medical community, and defendants do not propose one. {At oral argument, defense counsel declined to explain what specific conduct the law may prohibit, arguing that application of the law is highly fact-specific.} The statute provides no clarity on the term's meaning, leaving open multiple important questions. For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered "contemporary"? 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.
Judicial references to the concept of scientific consensus—in the context of COVID-19 as well as other disputed scientific topics—confirm that the term lacks an established meaning…. 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." As discussed in greater detail in Section III of this Order, plaintiffs represent that they have provided and would like to continue providing certain COVID-19-related advice and treatment that contradict the positions of public health agencies like the CDC. If the "consensus" is determined by United States public health recommendations, physician plaintiffs' intended conduct would contradict that consensus; if the same term is defined by other metrics, their conduct may be permissible. The language of the statute provides no way to determine which of multiple interpretations is appropriate.
Rather than merely providing the statute with "flexibility and reasonable breadth," the term "scientific consensus" makes it impossible to understand "what the ordinance as a whole prohibits." See also McCormack (statute requiring abortion providers to be "properly" staffed and have "satisfactory" admitting arrangements with hospitals was unconstitutionally vague because its terms "lack[ed] precise definition, and 'subject[ed] physicians to sanctions based not on their own objective behavior, but on the subjective viewpoints of others.'"); Tucson Woman's Clinic (statute requiring health care providers to "ensure that a patient is … treated with consideration, respect, and full recognition of the patient's dignity and individuality" was unconstitutionally vague because meanings of terms were "widely variable" and terms were "not medical terms of art").
Defendants argue that while the scientific consensus may sometimes be difficult to define, there is a clear scientific consensus on certain issues—for example, that apples contain sugar, that measles is caused by a virus, or that Down's syndrome is caused by a chromosomal abnormality. However, 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.
Physician plaintiffs explain how, throughout the course of the COVID-19 pandemic, scientific understanding of the virus has rapidly and repeatedly changed. Physician plaintiffs further explain that because of the novel nature of the virus and ongoing disagreement among the scientific community, no true "consensus" has or can exist at this stage. Expert declarant Dr. Verma similarly explains that a "scientific consensus" concerning COVID-19 is an illusory concept, given how rapidly the scientific understanding and accepted conclusions about the virus have changed. Dr. Verma explains in detail how the so-called "consensus" has developed and shifted, often within mere months, throughout the COVID-19 pandemic. He also explains how certain conclusions once considered to be within the scientific consensus were later proved to be false. Because of this unique context, the concept of "scientific consensus" as applied to COVID-19 is inherently flawed….
"Contrary to the Standard of Care"
The Ninth Circuit has held that "otherwise imprecise terms may avoid vagueness problems when used in combination with terms that provide sufficient clarity."
Defendants argue that the inclusion of the phrase "contrary to the standard of care" provides the definition of misinformation with adequate clarity. The court agrees that "standard of care" in itself is a well-defined concept in the realm of professional negligence. The standard of care "requires that medical service providers exercise that degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances."
However, far from clarifying the statutory prohibition, the inclusion of the term "standard of care" only serves to further confuse the reader. Under the language of AB 2089, to qualify as "misinformation," the information must be "contradicted by contemporary scientific consensus contrary to the standard of care." Put simply, this provision is grammatically incoherent. While "statutes need not be written with 'mathematical' precision, they must be intelligible." It is impossible to parse the sentence and understand the relationship between the two clauses—"contradicted by contemporary scientific consensus" and "contrary to the standard of care."
One possible reading, as defendants argue, is that the two elements are entirely separate requirements that each modify the word "information." However, this interpretation is hard to justify. If the Legislature meant to create two separate requirements, surely it would have indicated as such—for example, by separating the two clauses with the word "and," or at least with a comma. Further, the concept of "standard of care" pertains to the nature and quality of treatment that doctors provide or fail to provide. It is thus difficult to accept defendants' contention that the term "standard of care" modifies the word "information." By its very nature, the standard of care applies to care, not information.
{The provision of AB 2098 stating that misinformation or disinformation must be conveyed "in the form of treatment or advice" is confusing for the same reason. A doctor's advice might suggest a particular course of action or treatment (e.g., "you should not get the vaccine"). This advice is distinct from any information that might be conveyed to a patient in conjunction with the advice (e.g., "scientific studies show that the vaccine carries a risk of health complications for patients in your situation"). The statute improperly conflates "information" with "advice" or "treatment."}
Another equally plausible (or perhaps equally implausible) interpretation is that any time a doctor's conduct contradicts the scientific consensus, it is therefore contrary to the standard of care. Such a reading would distort the existing meaning of the term "standard of care" by creating an additional statutory definition in the context of COVID-19.
Even if the court adopted defendants' interpretation, the mere inclusion of an entirely separate element does not resolve the definition's vagueness. The term "standard of care" fails to provide additional context in which to understand the meaning of the term "scientific consensus." More importantly, defendants' interpretation does nothing to address the chilling effect caused by the statute's unclear phrasing and structure…. "[A] more stringent vagueness test" applies when the challenged statute chills First Amendment speech …. As it stands, doctors reading the statute have no assurance that the statute will be interpreted by courts or applied by the Boards consistently with defendants' proposed interpretation….
"False Information"
Defendants also argue that the inclusion of the term "false information" as a separate element further clarifies the definition, or at least provides truthfulness as a defense. While this reasoning may appear sound at first, drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible. The term "scientific consensus" implies that the object of consensus is provable or true in some manner. This is evident in the examples of "consensus" given by defendants—that apples contain sugar, that measles is caused by a virus, and that Down's syndrome is caused by a chromosomal abnormality. These propositions are so universally agreed upon that they are considered factual. It is hard to imagine a scenario in which the Boards consider a proposition to be settled by the scientific consensus, yet not also "true."
Moreover, as discussed above, because COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are "false" at a given point in time. The term "false information" thus fails to cure the provision's vagueness….
Defendants' Proposed Construction
Defendants argue that even if the statutory text is unclear, the court should adopt the "narrower construction" they propose—namely that the definition of "misinformation" contains three separate requirements: (1) false information, (2) that is contradicted by contemporary scientific consensus, and (3) that is contrary to the standard of care. While the court must "consider any limiting construction that a state court or enforcement agency has proffered," what defendants propose is not a narrowing or limiting construction at all. Rather, the proposed construction would require the court to essentially "[r]ewrite[e] the statute." This "is a job for the [California] legislature, if it is so inclined, and not for this court."
Because the definition of misinformation "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," the provision is unconstitutionally vague….
The court doesn't address whether the law is also unconstitutionally overbroad, but it suggests that it might be:
{Because plaintiffs have established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges, the court need not address the merits of their First Amendment arguments.} Though the court does not reach plaintiffs' First Amendment challenges, AB 2098 clearly implicates First Amendment concerns. See Nat'l Inst. of Fam. & Life Advocs. v. Becerra (2018) (stating that professional speech, including speech by medical providers, "is [not] exempt from ordinary First Amendment principles"); Conant (recognizing "the core First Amendment values of the doctor-patient relationship"). Accordingly, the court will apply a more exacting vagueness analysis.
Congratulations to Prof. Gregory Dolin and Jenin Younes (both of the New Civil Liberties Alliance) and to Laura B. Powell, who represent the plaintiffs. Disclosure: I'm on the NCLA Board of Advisors, but I didn't participate in this case.