Tomorrow, April 19th is the first hearing on AB 2098 which would subject physicians to disciplinary action for “spreading covid misinformation”, and that misinformation being opinions, facts and even publicizing scientific studies which are inconsistent with the position of the public health officials and infectious disease specialists. Here is the bill if you haven’t seen it.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2098

This bill comes from the Federation of State Medical Board’s (“FSMB”) position statement in July 2021 that physicians who disagree with the conventional narrative of COVID should be investigated and sanctioned by their member state boards.
Here is that position statement. https://www.fsmb.org/advocacy/news-releases/fsmb-spreading-covid-19-vaccine-misinformation-may-put-medical-license-at-risk/

I have not done an exhaustive search, but I know that at least one other state (New Mexico) has implemented this via a board policy. The Tennessee Medical Board floated adopting the FSMB policy, but the Republican legislature found out and pushed back by passing a law barring the medical board from implementing such a rule without legislative approval (and that’s not going to happen).

The COVID misinformation proposed sanction goes hand-in-hand with the ability of physicians to write off-label prescriptions for Ivermectin and HCQ. According to the FSMB, half of the states have bills pending which would bar disciplinary actions against physicians for so-called “covid misinformation” or off-label prescribing. Here is a map of the states which have such bills followed by a state-by-state summary of the pending bills. It is a useful resource from the FSMB which is very unfriendly to unconventional physicians.
https://track.govhawk.com/reports/2lWe3/public

Getting back to California: You all know that the Dems have introduced a whole host of bills promoting/mandating the vaccine and expanding the powers of the medical board. However, they have been running into trouble. Many of the bills have been pulled or put on hold, most recently, the COVID school mandate (as I related in my last post). But this one is going forward apparently.

I have to say that I was disappointed that there were no counter-bills, like the ones being introduced in half the states protecting doctors against charges of “covid misinformation,” or off-label prescribing for covid. But I was told that the lobbyists opposing the Dem’s bills were told by the Republicans that since they can’t schedule hearings, there would be no point to introduce counter-bills. I am not a legislator or a lobbyist, but still, I could see all kinds of collateral benefits to having counter-bills protecting doctors, especially since even some democratically-controlled states have introduced these types of bills, according to the above chart.

To me, it would be an effort. I guess it’s too late in the legislative process, but if it isn’t, maybe the powers-that-be in the anti-mandate community should rethink it.

For what it’s worth

I think the bill is fatally overbroad and facially unconstitutional. It is a pure content-based restriction that should be judicially examined under the strictest scrutiny. From a litigation point of view, the good news is that I don’t think challenges to the bill will have to wait for a physician to be sanctioned or even investigated (and I know of at least one Cali. physician who is under investigation for “covid misinformation”). I see a much earlier challenge possible, even well before the law goes into effect. I also see this case (these cases actually, since I believe there will be more than one) attracting the kind of judicial attention and positive results that most mandate cases have failed to achieve. In short, this is a more straightforward case than mandate cases, in part because it is a pure First Amendment case and also because Jacobson would not be direct adverse legal precedent. And that excites a guy like me, as I am sure it will other litigators in this space.

So, hopefully, the organizers who have already beat back some of the other covid bills will succeed in stopping this one. However, if not, I think there is a pretty good chance the lower courts will. I also think this is a case the Supremes would take on its shadow docket. I see Gorsuch and Thomas leading the charge. Based on prior First Amendment cases, I think Justice Thomas is the court’s strongest advocate for protecting First Amendment rights. And I think Justice Gorsuch and Alioto are going to be pretty heaved-off that espousing dissenting medical views in public can be sanctionable. The other three Republican justices will go along for the ride. The three liberals will defer to the wisdom and omniscience of the duly elected medical board members. (Oh wait: they’re not elected; they are appointed by the Governor because of political connections or favors, most likely.)

And so, you heard it first here: 6-3 overturning this clear illegal content-abridgment of a professional’s right to give her professionals views in public. Therefore, I’m saying that if passed, this bill will not go into effect.

Rick Jaffe, Esq.