New California Law Can Discipline Doctors For Not Following ‘Approved’ COVID Practices

Despite the fact President Joe Biden proclaimed the COVID pandemic over in September, the official end to the federal pandemic health emergency is scheduled to end January 11 and California’s state of pandemic emergency is due to end at the end of February, the political fight over COVID messaging is far from over.

Under California Assembly Bill 2098, which has been signed into law by Gov. Gavin Newsom, 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.”

The new law would punish physicians and surgeons for “unprofessional conduct” in advocating for the potential benefits of early treatment with off-label drugs — or those who simply ask questions about COVID vaccine safety.

However, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, and attorney Laura Powell have filed a complaint and motion for a preliminary injunction on behalf of five California doctors, asking the U.S. District Court for the Eastern District of California to block AB 2098 from going into effect.

“NCLA represents five physicians licensed by the Medical Board of California, 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.

“California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country,” said Jenin Younes, a ltigation counsel for NCLA. “That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment. Our country has a strong historical commitment to free and open debate and to protect the ability of those who dissent from the government’s view to express their own opinions. We have no doubt that courts will see this unconstitutional law for what it is and strike it down.”

Ahead of the governor signing AB 2098, the California Globe reported in September that Powell 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.”