Federal court hears California’s new law to punish doctors for ‘coronavirus misinformation’

“Coming to a doctor in California now, it is important to understand that you are now visiting the servant of some politicians, and not an evidence-based medical worker,” doctor tweeted at the beginning of January. “Therefore, health advice should be taken in this ‘context’.

He was referring to California’s new law to punish doctors for spreading “Covid misinformation” that went into effect January 1, 2023. Assembly Bill 2098, sponsored by Assemblyman Evan Lowe (D-Campbell) and signed into law by Gov. Gavin Newsom, circumvents due process for doctors over “Covid misinformation behavior” and revokes their right to free speech.

AB 2098 penalizes physicians and surgeons for “unprofessional behavior” for promoting the potential benefits of early treatment with off-label drugs or for those who dare to ask questions about the safety of the COVID vaccine.

It has already been used as a weapon to intimidate and punish doctors who disagree with conventional wisdom, lawyers from the New Civil Liberties Alliance say. “Physicians have already faced threats from other doctors and individuals on social media using AB 2098 to revoke their licenses in an apparent attempt to suppress doctors’ speech.”

In November, doctors filed a lawsuit against the state of California over a new law that lawyers say violates the 1st and 14th amendments (free speech and due process).

The New Civil Liberties Alliance (NCLA), a non-partisan, non-profit civil rights group, and attorney Laura Powell filed a complaint and petition for a preliminary injunction on behalf of five California doctors in Hoeg et al. v. Newsom et al.asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect.

The lawsuit’s first hearing was held Monday in the US District Court for the Eastern District of California.

The Globe spoke briefly with attorney Laura Powell, who was present at the hearing, and said Judge William Schubb admitted in court that the new law was unclear at all.

The NCLA just released a statement confirming this:

During the dispute, Judge Schubb called the statute’s definition of disinformation “bullshit.” The NCLA represents five physicians licensed by the California Medical Board. The NCLA argued that the term “modern scientific consensus” is not defined in law and possibly undefined, infringing the rights of plaintiffs under the Fourteenth Amendment to due process. Virtually no doctor can know at any given time the “consensus” of doctors and scientists on various issues related to the prevention and treatment of Covid-19. In his argument, Judge Schubb examined the novelty of physicians who now follow the alleged “modern scientific consensus”.

“At the hearing on the NCLA motion to introduce AB 2098, we explained to the court why this law is nothing more than a blatant attempt to silence doctors whose views, although based on thorough scientific research, deviate from the government-approved “party line.” At no time during the hearing was the state able to articulate the line between permissible and impermissible speech, which further illustrates how problematic the statute is. The NCLA is confident that the court understands all of the issues created by AB2098 and hopes that, in light of these issues, the court will make the right decision and pass this unconstitutional law.” – Greg Dolin, MD, Senior Litigation Counsel, NCLA

As attorney Laura Powell of Californians for Good Governance noted in 2022: “Because AB 2098 expressly restricts free speech based on its content, it is presumably invalid. The bill does not solve the identified problem. The authors and supporters of the bill point to the problem of doctors who widely inflate lies about Covid-19, but silence them would be a violation of the Constitution. To solve constitutional problems, it would have to be cut to the extent that it would simply duplicate existing law. Supporters can’t cite a single example of harm that could have been prevented.”

The Globe spoke to plaintiff Dr. Pete Mazolevsky several times during the legislative process for AB 2098. He asked somewhat rhetorically, “Who decides what is ‘Covid misinformation’?”

Apparently, this is the Medical Board of California, which currently consists of 12 people: 6 doctors, 3 lawyers, a public relations consultant, an “ethics reformer” and a life coach.

Under AB 2098, physicians will be subject to disciplinary action by the California Medical Board and the Osteopathic Medical Board of California if they do not adhere to the “approved consensus on COVID management.”

Who approves of the “consensus,” asked Dr. Pete. Medical board? Health officials? He told the Globe that neither members of the Medical Board nor all California public health officials are licensed doctors. “However, this is the decision of the California Medical Board.”

This is the first test case of “Covid misinformation” by healthcare professionals in the United States. The Globe will report any court rulings.