Late last month, a federal judge in California granted a preliminary injunction in a pair of related lawsuits filed in opposition to the state’s new medical misinformation law, which took effect January 1.
The move temporarily blocks enforcement of the law for individual physicians who are plaintiffs in the suits as well as physicians who are members of or represented by organizations that are also plaintiffs.
However, the initial victory for plaintiffs in two of the four cases brought against the law, often referred to by its Assembly bill number (AB 2098), could be just the beginning of the legal brawl.
The law — said to be the first of its kind in the U.S. — specifies that for physicians and surgeons, the dissemination of misinformation or disinformation related to COVID-19 constitutes unprofessional conduct, which is subject to discipline by the Medical Board of California and the Osteopathic Medical Board of California. (Existing law specifies that the applicable board take action against any licensed physician or surgeon charged with unprofessional conduct.)
Notably, AB 2098 specifies that dissemination applies to information shared by the physician to a patient under their care in the form of treatment or advice. And it defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” The law does not cover information stated in a public domain, such as on social media, because that provision was removed as the bill moved through the legislative process last year.
Prior to California Gov. Gavin Newsom (D) signing the bill into law last fall, the Federation of State Medical Boards had approved its own misinformation and disinformation policy, after previously warning physicians that those who engage in the dissemination of COVID vaccine misinformation would risk losing their medical license.
The California State Assembly also called health misinformation a public health crisis during the 2021-2022 session, and it further urged the state to commit to combating misinformation that threatens the health and safety of residents.
However, the proposed legislation — and now law — has also seen pushback.
Looking at the two cases whose plaintiffs recently scored an initial legal win in securing the preliminary injunction, one was brought on behalf of five individual physicians — Tracy Høeg, MD, PhD; Ram Duriseti, MD, PhD; Aaron Kheriaty, MD; Pete Mazolewski, MD; and Azadeh Khatibi, MD, MS, MPH — against Newsom, a number of leaders and members of the Medical Board of California, and California Attorney General Rob Bonta, all in their respective official capacities. The five physician plaintiffs are represented by lawyers from the New Civil Liberties Alliance (NCLA).
The other suit was brought on behalf of one individual physician, LeTrinh Hoang, DO, as well as the organization Physicians for Informed Consent and the California Chapter of the Children’s Health Defense. It was filed against Bonta and the executive officer of the Osteopathic Medical Board of California, in their respective official capacities. Healthcare litigator Richard A. Jaffe as well as Robert F. Kennedy Jr. are representing the plaintiffs.
Both lawsuits argue that AB 2098 is unconstitutional under the First and 14th Amendments of the U.S. Constitution, which protect free speech and prohibit the enforcement of laws that are too vague, respectively.
The federal judge’s order granting the plaintiffs’ motions for a preliminary injunction states in part that, “Because plaintiffs have established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges, the court need not address the merits of their First Amendment arguments.”
As regards to vagueness, the order states in part that, as applied to COVID-19, the concept of “scientific consensus” stated in AB 2098 is “inherently flawed” and that “the changing nature of a medical term’s meaning is evidence of vagueness.”
Jaffe told MedPage Today that, in representing the plaintiffs, the legal argument against AB 2098 especially needs to emphasize that “contemporary scientific consensus” is meaningless. As it relates to COVID-19, there have been instances of that consensus falling apart in real time, he said.
Jenin Younes, JD, litigation counsel for the NCLA, called the order granting a preliminary injunction against the law a “significant victory,” adding in a phone interview with MedPage Today that “people have the right to know what the law means” and that vagueness leads to a “chilling effect.”
Practical concerns arise if physicians are afraid that what they say violates the law, she said. “It damages the relationship and trust between physicians and patients.”
She further said that AB 2098 isn’t necessary, because there are already tools in place to hold physicians responsible for bad conduct.
In a blog post following the order granting the plaintiffs’ motions for a preliminary injunction, Jaffe wrote: “Today was a very, very good day for physicians’ free speech and health freedom. But tomorrow, we start working on the next battle. No rest for the committed.”
Elsewhere in the legal landscape challenging AB 2098, two cases (including one consolidated into the other) sit in the Ninth Circuit Court of Appeals after a federal judge denied plaintiffs’ motion for a preliminary injunction in the primary case.
Indeed, a spokesperson for Newsom provided MedPage Today with the following statement in a response to an inquiry regarding the other two cases: “Given the related appeals pending before the Ninth Circuit, both of which have an expedited briefing schedule and will be decided before this case, the State has determined it will not appeal this ruling at this time.”
A spokesperson for the Medical Board of California said that the board does not comment on pending matters. And the Osteopathic Medical Board of California did not immediately respond to a request for comment. The California Attorney General’s Office deferred request for comment.
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