A federal judge on Wednesday blocked a controversial law that allows state medical boards to punish doctors for expressing opinions about COVID-19 to patients that depart from the scientific consensus.
by Megan Redshaw
A federal judge on Wednesday issued a preliminary injunction against a controversial law in California that allows state medical boards to discipline doctors who “disseminate” information about COVID-19 that departs from “contemporary scientific consensus.”
In his ruling, Chief Judge William B. Shubb of the U.S. District Court for the Eastern District of California found that the plaintiffs had standing to challenge the law and that “contemporary scientific consensus” has no established meaning in the medical community.
Because the term “scientific consensus” is so “ill-defined and vague,” the plaintiffs in the lawsuit are “unable to determine whether their intended conduct contradicts the scientific consensus and, consequently, what is prohibited by law,” wrote the judge.
The law, known as Assembly Act 2098, took effect on January 1, 2023, and applies to information about the nature and risks of the virus, its prevention and treatment, and the development , the safety and efficacy of vaccines against COVID-19.
A group of five California doctors filed a lawsuit in November against California Gov. Gavin Newsom’s administration, saying the law violates their First Amendment rights and the constitutional right to due process. The plaintiffs are represented by the New Civil Liberties Alliance (NCLA).
The plaintiff Dr. Aaron Kheriaty broke the news of the ruling in a series of tweets:
“The judge just granted our request for a preliminary injunction against AB 2098, the CA physician gag order, in our Hoeg v. Newsom lawsuit. This effectively stops the enforcement of this law terrible while our case is being tried.
“The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong facial plausibility pre-trial. Not to get ahead of ourselves, of course, or to try to predict the ultimate outcome of the case, but this is a very positive development.
“I am so grateful to be a part of this amazing and brave team of doctors and lawyers fighting for medical freedom and informed consent in CA [. . .].
“One more detail here: The preliminary ruling also states that we five doctors have the right to challenge the law. This is important because a similar challenge brought against AB 2098 was dismissed based on a ruling that the plaintiffs lacked standing.” .
During oral arguments, defense counsel declined to explain what specific conduct the law may prohibit, and the statute itself does not provide clarity on the meaning of the term, leaving open multiple important questions, according to the ruling.
Judge Shubb, in his judgment, wrote:
“For example, who determines whether consensus exists to begin with? If consensus exists, among whom must the consensus exist (eg, practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In what geographic area should 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)? Until when must the consensus have been established to be considered “contemporary”? And what source or sources should clinicians 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 what “scientific consensus” refers to.
The NCLA argued that the term “contemporary scientific consensus” is “undefined in law and undefinable as a matter of logic.”
“No one can know, at any given time, the ‘consensus’ of doctors and scientists on various issues related to the prevention and treatment of COVID-19,” NCLA said in a statement. Judge Shubb agreed with this analysis, stating, “COVID-19 is such a new and evolving area of scientific study that it can be difficult to determine which scientific conclusions are ‘false’ at any given time.”
The plaintiffs said the law prevents them from communicating freely with patients or treating them appropriately, in their best judgment, when they fear being reported and potentially subject to discipline for giving advice to a patient who deviates from a supposed “scientific consensus”. Other doctors have argued that the law would prevent a patient from seeking a second opinion, because a doctor, in essence, could not have an alternative opinion.
The very concept of “scientific consensus” is problematic and represents a misunderstanding of the scientific process, NCLA said.
“This Act is a blatant attempt to silence doctors whose opinions, while based on thorough scientific research, deviate from the government-approved ‘party line,'” said Dr. Greg Dolan, attorney NCLA litigation principal.
“At no point has the state of California been able to articulate the line between permissible and impermissible speech, further illustrating how problematic the statute is. NCLA is pleased that the Court has recognized all the problems with AB2098 and ordered this law unconstitutional.”
Read the full article at Megan Redshaw.
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Posted on January 27, 2023