Punishing doctors for going against scientific consensus is unconstitutional

Efforts to silence doctors and scientists who dissent from state orthodoxy on Covid-19 related matters have taken many forms throughout the pandemic. California's AB 2098, a new law that punishes doctors for "disseminating" "misinformation" about Covid-19 to patients is among the most concerning examples. The statute defines "misinformation" as "false information that contradicts the contemporary scientific consensus contrary to the standard of care."

After Gov. Gavin Newsom signed the bill into law last September, several California doctors filed lawsuits in different federal courts challenging the law on First Amendment and Due Process of law grounds. While Judge Fred W. Slaughter in the Central District denied the motion for a preliminary injunction in McDonald v. Lawson, Judge William B. Shubb in the Eastern District granted plaintiffs' request for the same relief in Høeg v. Newsom, agreeing with them that the law was unconstitutionally vague. [Full disclosure: I was counsel to the winning plaintiffs in Høeg].

The state is now defending AB 2098 in the Ninth Circuit on McDonald's appeal. In addition to finding the law unconstitutionally vague, the Court should recognize that this quintessentially viewpoint discriminatory statute violates the First Amendment.

First, the statute's language betrays its purpose to prevent doctors who have concerns about vaccine safety and efficacy from conveying their beliefs to patients. Among the justifications given in AB 2098 is that "[d]ata from the federal Centers for Disease Control and Prevention (CDC) shows that unvaccinated individuals are at a risk of dying from Covid-19 that is 11 times greater than those who are fully vaccinated" and that "the safety and efficacy of Covid-19 vaccines have been confirmed through evaluation by the federal Food and Drug Administration (FDA) and the vaccines continue to undergo intensive safety monitoring by the CDC."

Second, the legislative record is telling. The California Medical Association (CMA) argued during a hearing that the law is needed because of physicians who "call into question public health efforts such as masking and vaccinations." The bill analysis from the Senate Committee refers to the problem of "misinformation about the safety and effectiveness of the COVID-19 vaccine and the use of masks for prevention." In sum, the statute's language and the legislative record establish its purpose to cow doctors into silence who otherwise would make recommendations about masks and Covid-19 vaccines that differ from the CDC's and CMA's. That makes it textbook viewpoint discrimination - precisely what the First Amendment's framers sought to prevent.

The State counters that the law regulates conduct, since it aims at treatment, not speech. In Tingley v. Ferguson, the Ninth Circuit upheld a Washington state law prohibiting licensed mental health providers from performing conversion therapy on minors. But there the Ninth Circuit carefully distinguished speech qua speech from circumstances in which the treatment is speech. These laws were constitutional, the court explained, in part because they only barred therapists from practicing conversion therapy (on minors). The law explicitly exempted speech itself: therapists could still discuss conversion therapy with patients, recommend that they get it in other circumstances (for instance at church or after they turned eighteen), and express their opinions about conversion therapy and homosexuality generally.

By contrast, AB 2098 targets pure speech by explicitly applying to advice. If it were meant only to regulate conduct, there would have been no reason to append "or advice" to the bar. The law at issue in Tingley did not prohibit recommendations and advice.

AB 2098 is also unconstitutionally vague. The definition of misinformation fails to provide doctors with sufficient guidance to allow them to comport their conduct in advance according to the law's strictures. None of the terms are further defined; "contemporary scientific consensus" is not a familiar standard, and it is unclear how that criterion relates to "standard of care."

While Judge Slaughter read and into the statute to reach his conclusion that the law is not unconstitutionally vague, Judge Shubb aptly abjured any authority to do that. But even assuming arguendo Judge Slaughter could rewrite the statute to ban information that contradicts the contemporary scientific consensus and was contrary to the standard of care, the law still is unconstitutionally vague.

AB 2098 does not define the term "contemporary scientific consensus," which arguably is not definable in the context of a relatively new virus and disease. Who decides what is the consensus? Will regular polls of doctors and scientists be taken to determine the "contemporary scientific consensus?" Will such polls ask all doctors and scientists, or only those in certain fields, such as virology and epidemiology? Failing to define the term may have been a feature not a bug, as the legislature surely knew it would prompt doctors to remain silent rather than risk losing their licenses.

Even if a "contemporary scientific consensus" were discernible, requiring doctors to abide by such a requirement would impede medical advances and violate basic tenets of medical ethics. Doctors are supposed to use their best judgment to advance their individual patients' best interests, not treat or advise them in accordance with a blanket "consensus."

The Supreme Court recognized in 2018 that "Throughout history, governments have manipulated the content of doctor-patient discourse to increase state power and suppress minorities." Those words perfectly capture the purpose and effect of AB 2098.