Gov. Gavin Newsom was perhaps prescient when he acknowledged free speech concerns when he signed California’s Covid disinformation bill into law last fall. In a message to lawmakers, the governor warned that “other potential laws could have a chilling effect” on doctors’ ability to speak frankly with patients, but expressed confidence that whoever signed it did not cross that line.
However, the law, which targets doctors who give false information about Covid-19 to patients, is now in legal limbo after two federal judges issued conflicting rulings in recent lawsuits that say it violates is free speech and is too vague for doctors to know what it prohibits. telling them to the sick.
In two of the lawsuits, Senior U.S. District Judge William Shubb in Sacramento temporarily suspended the law, but it only applies to the plaintiffs in those cases. Schubb said the law is “unconstitutionally vague,” in part because it “does not provide the average intelligence person with fair notice of what is prohibited.” His decision last month clashed with one passed in December in Santa Ana. In that case, U.S. District Judge Fred Slaughter refused to stop the law, saying it would “likely promote the health and safety of California’s COVID-19 patients.”
The legal battle in the nation’s most populous state somewhat perpetuates a pandemic-era dispute that pits supporters of public health guidelines against groups and individuals who have resisted mask orders, school closings and vaccination mandates.
California’s Covid misinformation law, which took effect Jan. 1, is being challenged by vaccine skeptics and civil liberties groups. Among those seeking to declare the law unconstitutional is a group founded by Robert F. Kennedy Jr. that has questioned the science and safety of vaccines for years.
But doubts about the law are not limited to those who have fought against the scientific mainstream.
Dr. Liana Wen, a professor of health policy at George Washington University who previously served as president of Planned Parenthood and as Baltimore’s health commissioner, wrote in an op-ed weeks before Newsom signed the law that it would have a “chilling effect” on medical practice with far-reaching consequences. , which can paradoxically worsen patient care.”
The Northern California chapter of the American Civil Liberties Union has spoken out against free speech rights, even as the national organization has upheld the constitutionality of coronavirus vaccine mandates.
“If doctors fear losing their licenses for giving advice that they think is helpful and appropriate, but they don’t really know what the law means, they’re less likely to talk openly and honestly with their patients,” he said. Hannah Kieschnik. , an attorney for the ACLU of Northern California.
The law states that doctors who give false information about Covid to patients are unprofessional, which can subject them to discipline by the Medical Board of California or the Osteopathic Medical Board of California.
Supporters of the law sought to suppress Doctors who recommend treatments like ivermectin, an anti-parasitic drug that has not been proven to treat Covid and can be dangerous; who exaggerate the risk of vaccination compared to the risk of disease; or who spread unfounded theories about vaccines, including that they can cause infertility or damage DNA.
But the law lacks such specificity, defining disinformation only as “false information that contradicts modern scientific consensus, that contradicts the standard of care.”
Michelle Mello, a law and health policy professor at Stanford University, says the wording is confusing.
“On an issue like Covid, the science is constantly changing, so what does it mean to say there is a scientific consensus?” he asked. “To me, there are many examples of statements that clearly, without any ambiguity, meet the definition of legislative conduct. The problem is, there are all kinds of other hypothetical things people could say that aren’t clearly infringing.”
Dr. Christine Cassel, a professor of medicine at the University of California, San Francisco, said she expects the law to be used only in the most egregious cases. “I trust the scientists enough to know where the legitimate argument is,” he said.
Cassel’s view reflects Newsom’s rationale for signing the legislation despite his awareness of potential free speech concerns. “I am confident,” he wrote in his message to lawmakers, “that discussion of emerging ideas or treatments, including subsequent risks and benefits, does not constitute misinformation or misinformation under the standards of this bill.”
The plaintiffs in the Santa Ana case, two doctors who sometimes deviated from public health guidelines, appealed Slaughter’s ruling, allowing the law to stand. The case was consolidated with another case in the 9th U.S. Circuit Court of Appeals, where a judge in San Diego declined to rule on a similar request to temporarily suspend the law.
Newsom spokesman Brandon Richards said in early February that the administration would not appeal the two Sacramento cases in which Shubb issued the narrow ban. Attorneys for the plaintiffs expected the state to appeal the decision, thinking all four claims would then be decided by an appeals court, providing greater clarity for all parties.
Richard Jaffe, the lead attorney in one of the Sacramento cases brought by a physician, the Kennedy Children’s Health Advocacy and a group called Physicians for Informed Consent, said Newsom’s decision not to appeal “is just going to add to the chaos of who the law applies.”
But the Newsom administration has decided to wait for an appeals court to rule on the other two judges’ rulings, which have left the law in place for now.
Janine Younes, a lawyer with the New Alliance for Civil Liberties, who is the lead attorney in the other Sacramento case in which Schubb lifted his ban, said Newsom may be calculating that “you’re in a stronger position winning than losing.” . “.
Newsom’s victory at the appeals court, Jaffe and others say, could dampen the impact of the two Sacramento cases.
Opponents of California’s Covid misinformation law question why it is necessary at all, since medical boards already have the authority to discipline doctors for unprofessional conduct. However, only 3% of the nearly 90,000 complaints received by the Medical Board of California over a decade resulted in physician discipline, according to the Los Angeles Times in 2021.
That could be good news for doctors who worry that the new law could limit their ability to counsel patients.
“I don’t see medical boards being particularly enthusiastic about the jurisdiction of police doctors in general,” says Stanford’s Mello. “You have to be really bad to get their attention.”
This story was prepared by KHN, which publishes California Healthline, an independent editorial service of the California Health Foundation.
KHN (Kaiser Health News) is a national news outlet that produces in-depth reporting on health issues. Along with policy analysis and research, KHN is one of the three main operating programs of the KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization that provides information to the nation on health issues.
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