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Oral arguments challenge controversial California misinformation law

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(The Center Square) – California’s new law, AB 2098 – which allows professional sanctions against doctors challenging the state-defined ‘scientific consensus’ on COVID-19 – faced oral argument in the United States Court of Appeals for the Ninth Circuit.

Challenging the law is two physicians championing free speech rights backed by the Liberty Justice Center, a national nonprofit law firm dedicated to protecting Americans’ constitutional rights.

AB 2098, signed into law in September of 2022, would allow the Medical Board of California to punish doctors who share “misinformation” on COVID-19 with their patients and defines “misinformation” as anything that runs contrary to the “contemporary scientific consensus.”

The law focused on “false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”

Days after the bill became law, Dr. Mark McDonald, a Los Angeles psychiatrist, and Dr. Jeff Barke, an Orange County primary care physician, worked with the Liberty Justice Center to file a lawsuit to prevent the law from taking effect.

“If this period has taught us anything, it is that the scientific and medical environments are constantly evolving, as new information and studies confirm or reject prior policies. Doctors need the freedom to explore alternatives and share opinions that challenge the scientific consensus—that is inherent in the nature of the scientific enterprise. California cannot insert itself into the physician-patient relationship to impose its views on doctors and end all debate on these important questions,” McDonald said.

Due to the broadness of the law, even the American Civil Liberties Union filed an amicus brief calling the law a “blunt instrument.”

In January, an injunction was granted by Senior U.S. District Judge William Shubb to block the law from being active until a full trial could be held.

“COVID-19 is a quickly evolving area of science that in many aspects eludes consensus,” wrote Shubb.

In today’s arguments, Jacob Huebert of the Liberty Justice Center made the case that AB 2098 would harm patients, doctors and free speech alike.

“A medical professional can have a good faith disagreement with the government about appropriate medical treatments. It’s very dangerous for the government to prescribe one appropriate view, and particularly for the government to do so in the name of regulating conduct,” Huebert said. “AB 2098 imposes strict liability for speech and punishes advice even if the patient doesn’t follow the advice, or follows the advice and has a good result.”

Deputy Attorney General Kristin Liska, representing the defendants, made the argument that AB 2098 would only limit speech “when a doctor is treating one of their patients,” and that a “doctor can go engage in discussions and debate” in other contexts outside of the doctor-patient relationship such as publishing articles in journals or going on television.

In response to Liska’s comment, Judge Danielle J. Forrest presented a hypothetical asking whether or not a doctor who tells a parent, when asked, that evidence suggests the COVID-19 vaccine may not be necessary for children would be held liable for misconduct.

“Maybe there are situations where it may be harder for the doctor to determine what the standard of care is, but at the end of the day, we rely on doctors to be able to make that determination,” replied Liska.

Seeking further clarification, Judge Kathleen Cardone asked, “How does a doctor know where they are supposed to be? Isn’t that exactly why doctors are afraid of this statute?”

Judges will release their ruling later this summer.

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