This week, we’re excited to introduce our good friend, attorney Julie, mom of three and newly elected Rancho Palos Verdes school board member (woohoo!) digging in to California’s AB 2098, which would silence doctors whose views do not conform to the government approved party line. The bill was temporarily blocked this week after being challenged by New Civil Liberties Alliance with help from California attorney Laura Powell.

Enjoy your weekend!

Natalya & Dana

Who would you rather take medical advice from – your government, or your doctor? A federal court just determined that California’s physician censorship law, which aims to keep the government in the room with you and your doctor, is both grammatically incoherent and unconstitutionally vague.

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CA-AB2098, which took effect in California on Jan 1, 2023, was designed to silence physicians who question the government narrative on Covid-19. The bill was backed by California’s “vaccine working group,” a coalition of Democratic legislators aiming to increase covid vaccine uptake. Now-congressman Kevin Kiley referred to the vaccine working group’s legislative package as “the most radical, anti-scientific, and unconstitutional anywhere in the country.” Most of the group’s bills failed, but AB 2098 was among the stragglers enacted into law.

On Wednesday, the District Court for the Eastern District of California issued a preliminary injunction temporarily halting AB 2098 in the case of Hoeg v. Newsom.

This means the court decided that plaintiffs demonstrated sufficient harm and a likelihood to prevail on the merits. The injunction prevents enforcement of AB 2098 while the case is pending.

AB 2098 Prohibits “Misinformation” and “Disinformation” Relating to Covid

AB 2098, codified at Cal Bus and Professions code 2270, says “[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.” Cal. Bus. & Prof. C. sec. 2270(a).

At first blush, this may sound like a good thing. Of course we don’t want anyone spreading misinformation or disinformation, because misinformation and disinformation are bad!

But what is misinformation, and who decides? Therein lies the problem.

The statute defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Cal. Bus. & Prof. C. sec. 2270(b)(4).

Disinformation is defined as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.” Cal. Bus. & Prof. C. sec. 2270(b)(2).

The state medical and osteopathic boards are tasked with enforcement.

Problematic Legislative Findings

AB 2098 made several legislative findings that may or may not be true, but were stated as incontrovertible facts. Among these findings are claims that 90,000 Californians died from Covid, that vaccinated people are 11 times more likely to die than unvaccinated people, and that the covid vaccines are safe and effective.

Informed Consent Violates AB 2098

The physician plaintiffs explained that they have provided specific advice to patients about potential health risks of covid vaccines and boosters, and have informed patients of flaws in the research supporting vaccines and boosters. They also have informed patients about flaws in the research supporting universal masking, and at times advised patients against wearing masks based on patients’ individualized needs. In other words, the physicians provided their patients with individualized advice in order to empower their patients to make medical decisions with informed consent. In these instances, the physicians’ conduct contradicted the “scientific consensus” as determined by public health agencies like the CDC.

The physician plaintiffs explained that they intend to convey truthful information and provide treatment consistent with the standard of care in the future. The court found that based on their explanations of the advice and treatment they provide contrary to public health recommendations, it is plausible that the state medical boards will determine their conduct violates AB2098. The court explained that the physicians have a reasonable fear of enforcement given the ambiguity of “scientific consensus” and definition of “misinformation.”

The Definition of “Misinformation” is Unconstitutionally Vague under the Due Process Clause of 14^th Amendment

The Court concluded that AB2098’s definition of “misinformation” would not enable a reasonable person to know what is prohibited by the law. The court noted that the vagueness problem with AB2098 is particularly objectionable because it inhibits the exercise of First Amendment freedoms of the physician plaintiffs.

- There is no such thing as “scientific consensus”

The physician plaintiffs explained there is no official technical definition or established meaning of “scientific consensus” in the medical community, and that there are different notions of what the phrase means. Informal consensus may mean a general opinion of doctors. Formal consensus might exist where a group with expertise discuss and debate evidence and come to some conclusions for general patient care guidelines which are then published. During the pandemic, “scientific consensus” has generally referred to public health guidance.

Even if there were “scientific consensus,” however, critical questions remain.

For example, who determines whether consensus exists? If consensus does exist, among whom must consensus exist - physicians or public health officials? Are there geographic restrictions? Whose consensus governs when, for example, WHO and CDC mask guidance conflict?

The court concluded that doctors cannot know if their intended conduct contradicts consensus, because the terms are so ill-defined. According to the court, Covid-19 is a quickly evolving area of science that eludes consensus, and accordingly, the failure to provide sufficiently objective standards to focus AB 2098’s reach renders statute unconstitutionally vague.

- AB 2098 is “Grammatically Incoherent”

In the medical field, the “standard of care” requires medical service providers to exercise a degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances.

But, use of this phrase does not clarify AB 2098 – it merely confuses the reader. AB 2098 states: “Misinformation must be ‘contradicted by contemporary scientific consensus contrary to the standard of care.’” The court called this sentence “grammatically incoherent,” and determined that 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, provision is unconstitutionally vague.

Because the plaintiffs demonstrated a likelihood of prevailing on vagueness grounds, the court did not address merits of first amendment arguments.

A pre-trial scheduling conference is set for February 23, 2023. We will keep you updated.

Julie Hamill is a lawyer, mom, and school board member from Rancho Palos Verdes, California. She represents the Alliance of Los Angeles County Parents in their lawsuit against the County of Los Angeles Department of Public Health, seeking to end arbitrary and capricious mandates that harm children. The views stated are her own and do not represent the views of any organization with which she is affiliated.

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Who would you rather take medical advice from…