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Originally published on The Defender.
California lawmakers last week dealt a final blow to the state’s controversial “medical misinformation” law, which aimed to punish doctors for spreading COVID-19 “misinformation” or “disinformation.”
Assembly Bill 2098 (AB 2098) was quietly put to rest on Sept. 14 when lawmakers voted 35-1 to pass another bill, Senate Bill 815 (SB 815), which included a clause that repealed AB 2098. SB 815 reforms how the Medical Board of California must address patient complaints.
Commenting on the news, Children’s Health Defense (CHD) President Mary Holland said:
“The California legislature likely saw the writing on the wall — that their statute would be found unconstitutional — so they attempted to quietly scuttle it. This is an example of how legal wins can lead to legislative wins, and this is definitely a win when doctors can practice medicine freely.”
AB 2098, signed by Gov. Gavin Newsom in Sept. 2022, took effect on Jan. 1.
CHD attorneys filed the suit on Dec. 1, 2022, against California Attorney General Rob Bonta and the Osteopathic Medical Board of California Executive Officer Erika Calderon on behalf of Dr. LeTrinh Hoang, Physicians for Informed Consent and CHD-California Chapter.
Another suit, filed by five doctors in January 2023 against Newsom, claimed the law violated the doctors’ First Amendment rights.
Until last week’s passage of SB 815, the “medical misinformation” law was stuck in “legal limbo.”
AB 2098 established that doctors who give “false” information about COVID-19 to patients were engaging in unprofessional conduct, which could subject them to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.
“Misinformation” was defined in the law as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
According to the Los Angeles Times, while the law directly concerned speech between doctors and patients, it “did not apply to any fringe claims aired in public forums such as social media or the Capitol steps.” A legislative analysis determined that “Such provisions would probably not survive a 1st Amendment challenge in court,” the L.A. Times added.
Attorney Richard Jaffe, who represented CHD in its lawsuit, said the repeal is expected to soon be signed into law by Newsom and will likely go into effect on Jan. 1, 2024.
According to Kim Mack Rosenberg, acting general counsel for CHD, “It is my understanding that the bill was sent to the Office of Engrossing and Enrolling — a final legislative step before going to the governor’s office.”
Jaffe called the passage of SB 815 “a big win for proponents of free speech, and especially for people who want to be able to receive candid information and advice from their physicians, even if the information is not consistent with the mainstream COVID narrative.”
“This action by the California legislature,” Jaffe told The Defender, “protects the doctor/patient relationship, which is a very good thing.” However, he said, this does not mean doctors who may challenge the mainstream narrative are completely out of the woods yet.
California attorney Greg Glaser agreed:
“The good news is California lawmakers’ censorship law is effectively over, which is a win for doctors and patients.
“The bad news is this will give the courts a reason to say the lawsuits are moot, which means the legal precedents may be limited in the event of a future emergency where doctors could possibly be censored all over again.”
According to MedPageToday, medical licensing boards “apparently had authority all along.”
Jaffe said California’s medical board “might not have gotten the message yet, so we may still have work to do.”
Repeal of AB 2098 ‘unprecedented’
The clause added to SB 815 that repealed the “medical misinformation” law caught some — including plaintiffs and lawyers directly involved in lawsuits challenging the assembly bill — by surprise.
According to Just the News, “The Assembly Appropriations Committee mentioned the repeal provision in SB 815 in a Sept. 1 hearing but not in the bill analysis dated Aug. 21. The Medical Board itself didn’t mention any such provision at its Aug. 24 meeting or in the agenda.”
“We were unaware until a few days ago that the state legislature is taking the nearly unprecedented step of repealing its own law less than a year after it was passed,” she said.
“We hope that the state legislature learns a lesson from this episode and takes Californians’ rights into account when drafting and passing legislation, rather than trying to win a popularity contest with extremist constituents who think it’s appropriate to censor views of ideological opponents,” Younes added.
‘Health freedom is winning’
Pediatrician and former California State Sen. Richard Pan (D-Sacramento) was co-author of AB 2098. He told the L.A. Times in October 2022 that the bill was written with “extreme” examples of “misinformation” in mind.
According to the L.A. Times, AB 2098 “was endorsed by the California Medical Association, which represents nearly 50,000 physicians throughout the state.”
However, according to Just the News, the same group “has been on the warpath against SB 815, in part because it would sharply raise doctors’ license renewal fees.” However, the same report noted that “it’s not clear whether the group has spoken against the repeal provision.”
The L.A. Times noted on Sept. 11 that “Even staunch opponents of medical misinformation found the bill a flawed weapon in the fight against falsehoods,” adding that “California law already bars doctors from lying to their patients or dispensing shoddy medical advice that fails to meet the standard of care for all diseases, including COVID-19.”
The same report quoted California Assemblymember Evan Low (D-Silicon Valley), co-author of AB 2098, noting that he seemed “unbothered” by the bill’s impending repeal.
“Fortunately, with this update, the Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments,” a Low spokesperson said.
Newsom also previously expressed some reservations about the bill. In his September 2022 signing statement, he wrote that he was “concerned about the chilling effect” of attempting to legislate doctor-patient conversations.
Speaking to NBC’s “Meet the Press” on Sept. 8, Newsom said, “We would’ve done everything differently,” referring to California’s overall response to COVID-19.
Ray Flores, senior counsel for CHD, said Newsom’s comments were “very telling,” adding, “Although it may not be indicative of a moment of epiphany or an enlightenment, it surely indicates a retreat and confirms that we are winning,” Flores said.
Glaser told The Defender “Reading between the lines, the legislature is afraid the federal courts will continue to criticize and overrule the legislature’s attempt to censor doctors. This means health freedom is winning.”
‘Even the constitutionally obtuse get the message’
Just the News reported that a “potential factor in the repeal provision” was opposition from the American Civil Liberties Union Foundation of Northern California, which filed amicus briefs in the four lawsuits challenging AB 2098.
Aside from Hoang v. Bonta and Høeg v. Newsom, the other lawsuits challenging AB 2098 were McDonald v. Lawson and Couris v. Lawson. Jaffe shared a rundown of the status of all four lawsuits with The Defender.
According to Jaffe, McDonald v. Lawson, filed in October 2022, was dismissed the following month for lack of standing but was subsequently refiled in December 2022. A request for a preliminary injunction from the plaintiffs was denied later that month but was appealed, and oral arguments were held in July, with a decision pending.
Høeg v. Newsom was filed in November 2022 and was one of the two cases, along with Hoang v. Bonta, for which a preliminary injunction was issued in January. According to Jaffe, Bonta did not appeal the preliminary injunction.
And Couris v. Lawson was filed in December 2022 but was subsequently stayed by a federal judge in San Diego pending the outcome of the appeal in McDonald v. Lawson. According to Jaffe, the stay was appealed by the plaintiffs and their appeal was subsequently consolidated with that in McDonald v. Lawson.
Younes told The Defender that following the Senate vote, “We are contemplating next steps at this time but are unlikely to take any action until repeal is complete.”
The 9th Circuit U.S. Court of Appeals subsequently heard oral arguments in McDonald v. Lawson and Couris v. Lawson on July 17.
On his blog, Jaffe said, “Even the constitutionally obtuse get the message,” adding, “I think the last straw was the 9th Circuit panel’s bashing the Attorney General’s lawyer over the head with information and questions straight from Judge [William] Shubb’s preliminary injunction opinion.”
“Finding a law is subject to strict scrutiny is the kiss of death in constitutional litigation,” Jaffe wrote.
According to Cornell Law School’s Legal Information Institute, “Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination,” under which laws must be “narrowly tailored” to further a “compelling government interest.”
Jaffe noted that an appeal is pending before the 9th Circuit, while “cross motions for summary judgment on the constitutionality of the AB 2098 … are set to be heard” on Jan. 8, 2024, in the U.S. District Court for the Eastern District of California, “seven days after the repeal of the law goes into effect.”
“This new legislative repeal will significantly change the case direction,” said Glaser, referring to the District Court case involving Hoang v. Bonta and Høeg v. Newsom.
“Typically, judges don’t like deciding constitutional issues about repealed laws,” Jaffe wrote, noting that the 9th Circuit appeal may be found to now be moot as a result. However, in Hoang v. Bonta, Jaffe said, “Our situation is a little different.”
“I think we are prevailing parties under the law (unlike the plaintiffs in the McDonald appeal pending before the 9th who did not get an injunction). And that means the state might be forced to pay the piper,” Jaffe wrote.
Jaffe told The Defender, “We will have to wait and see. Theoretically, the 9th Circuit could issue an opinion any day, but they have been known to sit on some cases for more than a year after oral argument and it has only been two months.”
“It might be hard to convince an appellate court that it needs to issue a constitutional decision on a statute that is being repealed,” he said.
However, according to Jaffe, “It does look like the medical board still thinks it has the power to sanction doctors for COVID-19 misinformation and that is a problem which we are thinking hard about.”
“There is a pending case or two involving COVID misinformation to patients, but there have been no final resolution[s],” he wrote on his blog.
One case involves internist Dr. Ana Rebecca Reyna. The Medical Board of California filed an accusation against her June 23 alleging she made “false” statements about masks and COVID-19 vaccines to a patient in April 2021, including that vaccines contained fetal tissue, damaged DNA and posed a risk of miscarriage.
MedPageToday reported that “a final determination by the board” is pending.
According to Rosenberg, “It is possible that, even in the absence of the law, medical boards may still try to control and punish doctors’ speech, as they have elsewhere. But the repeal of this law, one would hope, would at least give a medical board pause.”
“Further, the repeal might be an effective argument in any proceeding — whether before a board or initiated by a doctor in a court of law — that it is unconstitutional to attempt to limit doctors’ speech, not only in the doctor-patient relationship context but also in more public speech,” she added.
Flores told The Defender that following “the less than stellar oral argument” by the state before the 9th Circuit, “I believe the California Medical Board, the Osteopathic Medical Board of California, Gov. Newsom and California Attorney General Rob Bonta have seen enough and are ready to throw in the towel.”
“I have always believed that the ‘pandemic’ was just a dry run for what they really have in store: tyranny. To continue this winning streak will require constantly staying one step ahead of their game. That will be the key to preserving our constitutionally protected freedoms,” he added.
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