Editor's note: This article has been revised from a previous version to clarify facts concerning procedural history involving the constitutional challenges to AB2098.
Facing the risk of a stinging loss before a federal appeals panel, California’s Democrat-dominated legislature has repealed a law that would have allowed the state to strip the medical licenses of any doctors who discussed information about Covid that ran counter to what the state believed to be correct.
On Oct. 1, the state of California formally repealed the constitutionally controversial provisions within a recently enacted state law, known as AB2098, which empowered state officials to take action against medical professionals who shared with patients so-called “misinformation” or “disinformation” about the virus that causes Covid-19.
Jacob Huebert
| Liberty Justice Center
Under AB2098, the California Medical Board could take disciplinary actions against doctors who share any information about Covid with patients that has not been endorsed by state public health officials or was not in keeping with “contemporary scientific consensus” concerning Covid.
Doctors disciplined by the board could have faced a range of actions from public reprimand to having their license to practice medicine revoked.
Lawsuits were filed quickly after Gov. Gavin Newsom signed AB2098 into law in the fall of 2022, challenging the law on the basis that the law violated doctors’ First Amendment speech rights.
Challengers were represented in separate lawsuits by civil liberties organizations, including the New Civil Liberties Alliance, of Washington, D.C., and the Liberty Justice Center, of Chicago.
AB2098 was not well received in court.
In January, in the case brought by doctors represented by the NCLA, U.S. District Judge William Shubb barred the state from enforcing the law against those doctors, granting a preliminary injunction that would continue while doctors continued their case seeking a court order declaring the law unconstitutional.
In that ruling, Shubb particularly took issue with the law’s reliance on defining so-called “misinformation” as anything not in keeping with the “current scientific consensus” concerning Covid. The judge noted that term had no “established technical meaning in the medical community,” so it could be used liberally by state regulators to crack down on disfavored doctors.
He said the “ill-defined” definitions would essentially mean doctors could only be allowed to discuss Covid if their statements aligned with the “pronouncements of public health officials.” With this in mind, Shubb said he found the law to be unconstitutionally vague.
In the case brought by doctors represented by the Liberty Justice Center, another judge, U.S. District Judge Fred Slaugher, denied such an injunction request.
In a third case, U.S. District Judge Robert S. Huie, in the Southern District of California, put a similar injunction request on hold, as he waited to see what would happen in the other cases.
The plaintiffs represented by the LJC and plaintiffs in the third case appealed those rulings to the U.S. Ninth Circuit Court of Appeals. However, when the appeals court heard arguments on both cases in July, those judges joined Shubb in sharply questioning how the state could enforce the law without running afoul of doctors’ constitutional rights to not only speak freely, but to know how to abide by the law without putting their license at risk.
The Ninth Circuit has not yet issued rulings in those cases.
Faced with the likelihood of a major loss at the Ninth Circuit, as well, state lawmakers instead opted to quietly repeal the provisions forcing doctors to follow state speech guidelines when discussing Covid with patients and the public.
The repeal measure was passed in mid September and sent to the governor on Sept. 21.
The repeal was hailed by the legal teams who led the challenge.
““It shouldn’t have taken a lawsuit and a year of litigation, but we’re thrilled to see California defend free speech by repealing AB 2098,” said Liberty Justice Center President Jacob Huebert. “Doctors have the same right to free speech as everyone else, and patients deserve their doctors’ best honest advice. We’re glad California repealed this bill before it could spread to other states, and we’re proud to have defended our clients’ First Amendment rights.”
Jenin Younes, attorney for the NCLA, added: “Rather than suffer further humiliation in federal court, and implicitly conceding the unconstitutionality of AB 2098, the state of California has taken the unusual step of repealing a law that hasn’t even been in effect for a year. This repeal marks a significant victory, not only for NCLA’s courageous clients, but for all doctors across the state of California.”