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. The Medical Board of California and the Osteopathic Medical Board of California have not disciplined anybody under the new rule as of Monday, communications representatives said in emails. 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.

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Katy Grimes | Contributor

When seeing a doctor in California now, it is important to understand that you are now visiting a servant of some politicians, not an evidence-based medical professional, a doctor posted on Twitter.

Effective January 1, 2023, Assembly Bill 2098 authored by Assemblyman Evan Low (D-Campbell), and signed into law by Gov. Gavin Newsom, is to circumvent due process against doctors over “Covid misinformation conduct.” AB 2098 will punish physicians and surgeons for “unprofessional conduct” for advocating for the potential benefits of early treatment with off-label drugs, or those who dare to ask questions about COVID vaccine safety.

“There is no jury voting on this,” Dr. Pete Mazolewski told the Globe in September. “This is a California Medical Board decision.” Gov. Newsom could have vetoed the bill, which is likely unconstitutional. Assembly Bill 2098 would empower the Medical Board of California to go after the licenses of physicians who disseminate “misinformation” or “disinformation” regarding Covid-19. The bill in its latest iteration defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

Who decides what is “Covid misinformation?” California’s Medical Board, which is currently made up of 12 individuals: 6 Medical Doctors, 3 attorneys, a Public Relations consultant, an “Ethics Reformer,” and a Life Coach. Under AB 2098, doctors would be subject to disciplinary actions by the Medical Board of California and the Osteopathic Medical Board of California if they do not adhere to the “approved COVID treatment consensus.” Who approves the “consensus,” Dr. Pete asked.

The medical board? Public health officials? Neither the members of the Medical Board nor all of California’s public health officials are licensed medical doctors. Does the Centers for Disease Control and Prevention decide “approved COVID treatment consensus?” Even CDC Director Rochelle Walensky recently admitted her agency’s failures during the COVID-19 pandemic during a message to her staff in August. ABC reported, “To be frank, we are responsible for some pretty dramatic, pretty public mistakes. From testing, to data, to communications,” Walensky said.

As attorney Laura Powell of Californians for Good Governance noted, “Since AB 2098 explicitly restricts speech based on its content, it is presumptively invalid. The bill does not address the problem identified. The bill’s authors and supporters point to the problem of doctors who widely amplify falsehoods about Covid-19, but silencing them would violate the Constitution. To remedy the constitutional problems, it would have to be pared down to the point that it would simply duplicate existing law. Proponents are unable to cite a single example of a harm that could be prevented.” Dr. Mazolewski also addressed the threat to “Disseminating information” from doctor to patient.

“This ‘unprofessional conduct’ if the medical board disagrees with the information is the loss of a medical license.” Physicians filed a lawsuit in November against the State of California over the new law, which attorneys say violates the 1st and 14th Amendments. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, and attorney Laura Powell filed a complaint and motion for a preliminary injunction on behalf of five California doctors in Høeg, 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.

“NCLA represents five physicians licensed by the Medical Board of California (MBC), most of whom treat patients on a regular basis. Drs. Hoeg, Duriseti, Kheriaty, Mazolewski, and Khatibi allege Assembly Bill (AB) 2098, signed into law on September 30, 2022, violates their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law,” the NCLA said in a statement. “The law not only interferes with the ability of doctors and their patients to freely communicate, but it has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views. Several Plaintiffs have experienced threats from other doctors and individuals on social media to use AB 2098 to have their licenses taken away, an obvious attempt to suppress the doctors’ speech. They are being put between a rock and a hard place, fearing repercussions for acting in their patients’ best interests by honestly giving them the information they believe their patients need in order to make informed care decisions.”

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