A federal judge said Monday that he couldn’t make sense of a critical provision in a new law that punishes doctors for spreading false information about COVID-19 to their patients.
Senior Judge William Shubb called its definition of misinformation “nonsense” during a hearing in the United States District Court in Sacramento.
The Legislature approved the law, AB 2098, last year and it went into effect January 1. It says doctors who share false information about COVID-19 treatment options and vaccines, whether they did so deliberately or not, could be disciplined for “unprofessional conduct.” That could lead to them losing their license.
A group of doctors, along with two organizations, are suing state officials in separate cases, saying the new law violates free speech protections under the First Amendment. They asked Shubb, who has served on the court for over 30 years, to halt enforcement of the law until the cases are resolved in court.
While not revealing how he would decide on that matter, Shubb on Monday foreshadowed what could become an argument for the law’s demise.
Specifically, the measure defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Standard of care refers to treatment that is widely accepted by medical professionals for a particular disease.
Doctors following a “standard of care” is not new, Shubb said during the hearing. But following a “contemporary scientific consensus” is.
Deputy Attorney General Kristin Liska represented Gov. Gavin Newsom, Attorney General Rob Bonta and representatives of boards that discipline doctors of medicine and osteopathy in the cases.
In court filings, and during the hearing, Liska said physicians would be liable for punishment only if they violated all three elements of the misinformation definition: false information, that is contradicted by a scientific consensus and goes against a doctor’s standard of care.
When asked to more specifically discuss statements that could violate the rule, Liska declined to do so, saying it was dependent on the circumstances of each individual patient.
Then how do you expect doctors to know what may violate the law? Shubb countered.
The California Medical Association supported the measure, which was introduced last year by San Jose Democrat Evan Low. It said the “spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.”
When Newsom signed the bill in September he called it “narrowly tailored” in a letter explaining his decision. He then defended it with an eye towards a challenge under the First Amendment.
“To be clear, this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship,” Newsom said.
Still, opponents of the rule warned of its “chilling effect.”
One of the doctors challenging the law is Dr. Tracy Høeg. After the hearing, Høeg said she was afraid doctors would hold back information when talking with their patients because of the potential to be disciplined.
“If this really is about the standard of care then we already have laws in place that will enforce that and protect patients,” Høeg said.
Jenin Younes, an attorney representing Høeg and five other doctors in one of the cases, said during the hearing that the law was “about silencing doctors that have a different view from the state.”
Younes works for the New Civil Liberties Alliance, a Washington, DC-based organization that strives to “tame the unlawful power of state and federal agencies,” according to its website. Both the northern and southern California affiliates of the American Civil Liberties Union support the challenges to the law, saying the rule is unnecessary and could make doctors less likely to speak openly with their patients.
Shubb during the hearing also challenged arguments made by Younes and the attorney handling the second case.
After Younes said the law would be used to target people who don’t follow along with what the government wants, Shubb replied that one couldn’t know that just by reading it.
“The statute is not clear on its face,” Younes replied.
“That’s true,” Shubb said, before chuckling.