One California physician said he had “mixed feelings” after the state quietly overturned a COVID-19 misinformation bill that several legal groups argued violated the First Amendment.
Last week, Gov. Gavin Newsom, D-Calif., quietly repealed AB 2098, which had been in effect for under a year, after the law faced legal challenges. The bill authorized the state’s medical board to revoke the licenses of any medical professional if they “disseminate misinformation or disinformation related to COVID-19, including 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 vaccine.”
Dr. Mark McDonald, a Los Angeles-based Child Psychiatrist, along with Primary Care Physician Dr. Jeff Barke, challenged the bill with the Liberty Justice Center “LJC,” shortly after Newsom signed it into law. The LJC argued AB 2098 effectively chilled the speech of doctors and discouraged discourse on a scientific and medical issue.
“Of course that violates doctors free speech rights by trying to control what they can and can’t say to their patients. And doctors really have no way to know how to comply with that, because on COVID, there isn’t even a consensus. There’s not something you can go look up to find out what the contemporary consensus is. It was a constantly changing situation,” LJC counsel Jacob Huebert told Fox News Digital.
Dr. McDonald said that while he was pleased Newsom backed down on AB 2098, he was also “a bit disappointed” because he hoped to secure a court ruling that could set a legal precedent to discourage this kind of law from being passed again.
“Obviously, I am delighted that we will no longer be threatened with license suspension for speaking to our patients honestly. This was essentially a gag order that was placed by the court against the rights of a professional class of people, physicians here in California,” McDonald told Fox News Digital. “But I’m also a bit disappointed.”
McDonald believed the 9th Circuit was “leaning” in favor of the doctors when Huebert argued their case before the court in July. The three justices present did not ask the LJC counsel any questions, but peppered the state’s defense attorney with skeptical questions raising some of the same concerns the LJC brought forward.
Huebert said after that “icy reception” it appeared the state found repealing the law to be a better option than getting “a court decision telling them that they violated the Constitution and telling them not to do it again.”
“It was very clear that they were siding and leaning towards our side in their ruling,” McDonald agreed. “And now we don’t have a ruling and we may not get one because the law is now going to be repealed as of January 1st, 2024. I’m still hoping, though, that there will be a ruling because it would be wonderful to have a legal precedent to stop this from happening again,” McDonald stated.
“It’s very easy for the state to simply go back and put another law in place next year when things quiet down or for other states to do that. And our goal ultimately was to have a national ruling, a Supreme Court ruling that would invalidate any of these laws, the speech codes from going into effect not just for doctors but also for attorneys,” he explained.
McDonald said there are other laws going through the state legislature that he worried could also impact his ability to speak freely with patients.
Newsom recently struck down a law that would’ve required parents to affirm a child’s gender identity in custody battles. McDonald said laws like these would eventually impact his practice as well, if he advised a young patient with gender dysphoria against taking hormone blockers or undergoing surgeries.
“If I were as a physician to say, ‘you know, you ought to wait a little bit before you start to cut off parts of your body or inject yourself with hormone blockers,’ I could then be accused of medical malpractice. I could be accused of going against the law, so to speak, in California, that is gender-affirming. And I could have my license removed. This has already happened to a few psychologists I know, because their boards have told them that they are going against the accepted practice of psychology by providing freedom for the children to wait things out before making irreversible medical decisions,” he explained.
“So there’s a whole bunch of problems here in the state legally that are seeping into medicine, psychology, psychiatry, and ultimately they’re going to damage the patient-doctor relationship and they’re going to harm children,” McDonald said. “And as a child psychiatrist, I’m obviously very concerned about the health and well-being of children.”
The Democratic-backed AB 2098 faced opposition from other legal groups across the political spectrum from the start.
The ACLU of Northern California, who filed amicus briefs in four lawsuits related to the bill, celebrated the demise of AB 2098. Senior counsel Chessie Thacher told the Los Angeles Times, “As we argued in court, that bill was dangerously overbroad and confusing.”
In January, a federal judge placed an injunction on the law after The New Civil Liberties Alliance (NCLA) sued on behalf of five California physicians.
The NCLA agreed the state quietly shelved the law to avoid suffering “further humiliation in federal court.”
Governor Newsom’s office did not respond to a request for comment.
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