On September 30, Gov. Gavin Newsom signed a bill repealing Assembly Bill 2098. The repeal (Sec. 19. Section 2270 of the Business and Professions Code) is part of a broader package that reforms the Medical Board of California. In effect since early 2023, Assembly Bill 2098 punishes doctors for disseminating what government authorities designate as “misinformation or disinformation” about COVID-19.
The law resulted in four lawsuits and opposition from the right and left alike, with the ACLU of Northern California and Democratic presidential aspirant Robert Kennedy Jr. criticizing it for vague language and violation of people’s rights.
“I believe two lawsuits put significant pressure on the legislature,” said Jenin Younes, an attorney for the New Civil Liberties Alliance who represented five doctors suing the state in Høeg v. Newsom.
“Our motion for summary judgment was due October 2nd,” said Younes. “Meanwhile, the Ninth Circuit Court of Appeals heard McDonald v. Lawson in July. Two of the three judges on the panel indicated they had serious problems with the law’s constitutionality.”
Even though AB 2098 stayed in force after that hearing, the judges’ published decision may have been enough to cause the legislature to reconsider the law, says Younes.
“Given the obvious misgivings about the law voiced by several federal judges, the legislature may have decided to voluntarily repeal the law rather than suffer another humiliation in court,” Younes said.
Still in Danger
Despite the win for freedom advocates, California still has ways to punish doctors who do not conform to the health establishment.
“There is still danger,” said Younes. “One of our arguments is that the law punishes First Amendment-protected speech because California already requires doctors to abide by certain standards, which cover malpractice, negligence, and that sort of thing.
“This indicates that the law is designed to punish and chill speech that is First Amendment protected,” said Younes. “Unfortunately, those legal doctrines can be wielded unfairly against doctors who simply depart from the [Centers for Disease Control and Prevention] or state orthodoxy.”
False, or Just Debatable?
Younes notes a doctor was disciplined by the Medical Board of California in 2021, before AB 2098 was enacted, for disseminating “false” information to a patient.
“The problem is that two of the allegedly false statements are at least up for debate: that masks don’t do much or anything to stop the spread of COVID and that ivermectin can be an effective means of treating COVID-19,” said Younes.
“Still, AB 2098 would have been another tool to utilize against doctors who dissent from the state, and it was clearly designed to intimidate doctors into silence, so it is ultimately beneficial that it has fallen,” said Younes.
Dr. Marilyn Singleton, a board-certified anesthesiologist with professional experience in California, agrees the government can still control dissenting physicians.
“There are plenty of ways, in the definition of unprofessional conduct, to make life difficult for medical gadflies,” said Singleton.
Patients to the Rescue
Patients can protect doctors from government harassment, says Singleton.
“Patients want information,” said Singleton. “They spoke out. When you get patients on your side it certainly helps the fight against government overreach.”
Instead of criminalizing speech, governments and other institutions should “combat erroneous information with more information backed with facts,” says Singleton.
The repeal of AB 2098 will probably have an impact on other states, says Younes.
“I think this will show other states that such laws will be a huge headache for them, at the very least, and most likely will end in embarrassment,” said Younes.
“If this law couldn’t survive in California, which has some of the most totalitarian, oppressive COVID policies in the country, I don’t know where it would survive,” said Younes. “This is an important victory for free speech and due process.”
Lawmakers Bowing to Hysteria
The passage of such an overtly anti-freedom law shows legislatures are exceeding their proper role in society, Younes says.
“Legislatures shouldn’t succumb to public hysteria, especially hysteria of a tiny but vocal segment of its population,” said Younes. “Ultimately, as shown by the legislative history, this bill’s main proponents were several extremists who made no secret of the fact they wanted to silence doctors who disagreed with them on various aspects of COVID policy.”
The California legislature and the governor both refused to consider the constitutionality of the bill before passing it, says Younes.
“The legislature has a duty to contemplate the constitutionality of its laws and had the state done its job, it would have realized this bill didn’t pass muster,” said Younes. “Likewise, the governor should have followed his gut—misgivings articulated in his signing statement—and declined to sign this obviously unconstitutional bill into law.”
Harry Painter (firstname.lastname@example.org) writes from Oklahoma.
California Legislative Information: “SB-815 Healing Arts. (2023-2024),” September 19, 2023: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB815
“Memorandum and Order Re: Plantiffs’ Motions for Preliminary Injunction,” United States District Court, Eastern District of California, January 25, 2023: https://childrenshealthdefense.org/wp-content/uploads/CA-AB2098-Inj-Granted-1.25.23.pdf
“Høeg v. Newsom, Complaint for Declaratory and Injunctive Relief,” U.S. District Court for the Eastern District of California, November 1, 2022: https://nclalegal.org/wp-content/uploads/2022/11/Complaint_Hoeg-v.-Newsom-final-complaint.pdf