A federal judge has barred California from enforcing its law threatening doctors for discussing Covid with their patients in any way not approved by the state, or sharing what the state might define as "misinformation" because it falls out of line with an undefined "scientific consensus."
On Jan. 25, U.S. District Judge William Shubb granted a request for a preliminary injunction against the state, prohibiting state officials from implementing the law known as Assembly Bill 2098.
The Democrat-dominated California State Legislature passed AB2098 last summer. Under the law, the California Medical Board would be empowered to take action against medical doctors who openly discuss so-called “misinformation” or “disinformation” about Covid-19. The law specifically designated such “misinformation” as anything not in keeping with “contemporary scientific consensus” concerning Covid.
Jenin Younes
| Provided photo
Should doctors engage in “disseminating” such “misinformation,” they could be subject to disciplinary action from the Medical Board for “unprofessional conduct.” Doctors charged with unprofessional conduct could face a range of actions from public reprimand to having their license to practice medicine revoked.
In response to the law, a group of doctors and patients immediately filed suit, claiming AB2098 violated their First Amendment speech rights. They were represented in the action by attorneys Greg Dolin and Jenin Younes, of the New Civil Liberties Alliance, of Washington, D.C., and attorney Laura Powell, of Pleasant Hill.
In his decision granting the injunction, Shubb said he believed the plaintiffs had “demonstrated a likelihood of success on the merits” of their case.
The judge particularly took issue with the law’s reliance on defining so-called misinformation as anything not in keeping with the current “scientific consensus.” He noted that term has no “established technical meaning in the medical community.”
He noted the term is “ill-defined,” and relying on it would leave doctors “unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.”
As a result, the law essentially could be read to be mean doctors would only be allowed to discuss Covid-19 if their statements aligned with the “pronouncements of public health officials” within national, state and local governments, the judge noted.
Judge Shubb noted the state attempted to compare the so-called “scientific consensus” about Covid-19 to the “consensus” about “basic facts,” such as “that apples contain sugar, that measles is caused by a virus, or that Down’s syndrome is caused by a chromosomal abnormality.”
“However, AB 2098 does not apply the term ‘scientific consensus’ to such basic facts, but rather to COVID-19 - a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested,” the judge wrote.
“COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
The judge ruled the law is unconstitutionally vague and issued an order declaring the law cannot be enforced while the lawsuit against the state over AB2098 continues.
“This Act is a blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the government-approved ‘party line,’” Dolin said in a statement following the ruling.
“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 the Court recognized all the problems with AB2098 and enjoined this unconstitutional law.”