A new California law signed by Gov. Gavin Newsom empowers the Medical Board of California to discipline physicians who “disseminate” information regarding COVID-19 that departs from the “contemporary scientific consensus.” The New Civil Liberties Alliance (NCLA), a nonpartisan, nonprofit civil rights group, filed a complaint and motion for a preliminary injunction in Hoeg, et al. v. Newsom, et al., asking the U.S. District Court for the Eastern District of California to prevent the law, AB 2098, from going into effect.
The NCLA represents five physicians licensed by the Medical Board of California (MBC), most of whom treat patients on a regular basis. Drs. Hoeg, Duriseti, Kheriaty, Mazolewski, and Khatibi allege Assembly Bill (AB) 2098, signed into law on September 30, 2022, violates their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law.
NCLA attorney Jenin Younes says the new law targets the doctor-patient relationship. The law also practices viewpoint discrimination and creates a severe chilling effect in direct violation of the First Amendment. AB 2098 subjects plaintiffs to discipline and negative professional consequences, including loss of license, for conveying non-consensus messages to their patients. It has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views. Several plaintiffs have experienced threats on social media from doctors and individuals willing to use AB 2098 to take their licenses away.
According to Younes, in safeguarding Americans’ rights to free speech and expression, the First Amendment applies to individuals expressing majority opinions and minority views. The U.S. Supreme Court and Ninth Circuit precedents protect speech uttered in the context of the doctor-patient relationship, recognizing a state interest in free and open communication between doctors and patients. AB 2098 also deprives Plaintiffs’ patients of their First Amendment rights to receive advice and hear treatment options unfettered by professional discipline fears.
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Practically speaking, the complaint asserts that no doctor can know, at any given time, the “consensus” of doctors and scientists on various matters related to the prevention and treatment of COVID-19. Younes also asserts that the term “contemporary scientific consensus” is undefined in the law and arguably undefinable, violating the plaintiff’s Fourteenth Amendment rights to due process of law. Plaintiff Dr. Tracey Haog even pointed out, “The text of AB 2098 ironically already contains false information about Covid-19 vaccine effectiveness.” She added, “Physicians will find themselves in a very difficult position of needing to choose between saying what they truly believe, saying what they think the medical board wants them to say, or simply staying silent.”
The law should not bind physicians to a so-called consensus that will always lag behind scientific discovery. Even if consensus could be defined and known, doctors make scientific and medical progress when they can use their own judgment based on their knowledge, experience, research, and their patients’ individual circumstances. Younes pointed out one example in the treatment of appendicitis. For decades, the treatment for a case of appendicitis was to remove the appendix. Recently, antibiotics have become the preferred treatment for many patients. There are also recent findings in mental health and Alzheimer’s research that defy decades of consensus.
Another plaintiff, Aaron Kheriaty, M.D., warns, “A physician with a gag order is not a physician you can trust. Progress in science and medicine will be stifled by this law, which will drive good physicians out of California, ultimately harming patients.” California already faces a shortage of doctors, especially in primary care.
According to Cal Matters, “The federal government recommends 60 to 80 primary care doctors per 100,000 people. In California, the number already is down to just 50 — and in particular areas, it’s even lower.” Every region of the state is forecast to suffer from double-digit shortages as high as 18%. The California legislature and Gov. Gavin Newsom may want to focus on the looming lack of primary care providers and how to solve it rather than passing laws to harass the ones still practicing there.
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