AB 2098: Is the Cali. Legislature going to Add Fourth Amendment Illegality to this First Amendment Unconstitution bill?

AB 2098: Is the Cali. Legislature going to Add Fourth Amendment Illegality to this First Amendment Unconstitution bill?

Something may be afoot as AB 2098 passes through the Senate’s halls, but I can’t quite figure it out. So, I thought I’d kick it around with you and increase public vigilance.

After AB 2098 passed through the business and professional committee, a 12-page legislative analysis/summary was put out by a consultant, one Sarah Mason.

Here is the whole document: 202120220AB2098_Senate Business, Professions And Economic Development.

I think it is a pretty ok summary. But I want to focus on comment 5 on page 12, and see if you can help me figure out what, if anything, is going on. Here is comment 5:

“Comments. MBC supports this bill if it is amended. According to MBC, it “faces
considerable challenges investigating cases involving a violation of the [Act] related
to COVID-19. Oftentimes, complaints received by the Board pertaining to COVID-19
are made by a member of the public and not the patient of the physician. In some
COVID-19 related investigations, the Board is unable to identify any specific
patients who have been treated by the physician in question. Without a patient’s
name, it is impossible to obtain their consent for records and the Board will be
unable to identify what patient records to seek in an investigative subpoena.”
MBC notes that its request for enhanced authority to inspect medical records would
assist in overcoming this challenge.
MBC also states that “The definition of
‘misinformation’ is unclear and may lead to legal challenges following the imposition
of discipline under this proposed law. If this occurs, the Board will have to use its
financial resources, its staff time, and the staff time of the Attorney General’s Office
to defend against such litigation. Further, the Board may face significant challenges
proving the dissemination of “disinformation,” as it would be required to establish
the physician’s intent. Under current law, to prove a violation of the standard of
care, the intent of the licensee, generally, is not relevant. MBC requests that the
definition be updated to read
“Misinformation” means false information that is contradicted by contemporary
scientific consensus contrary to the standard of care to an extent where its
dissemination constitutes gross negligence by the licensee.
According to MBC, “This amendment connects the potential violation to the
standard of care, which is a well-established concept followed by the Board and
related administrative entities involved in the disciplinary process.” (emphasis added)

AB 2098 does not currently contain an “enhanced authority” provision allowing the Board to violate physicians’ Fourth Amendment rights to conduct a search without a search warrant signed by a judicial officer. (My view anyway of the Board seeking the right to enter any doctor’s office anytime during business hours and rifle through the doctor’s medical records because there is a complaint on file. How could anyone think that’s a problem under the Fourth Amendment?)

Anyway, why the reference to “enhanced authority” since it’s not in the current version of AB 2098, and it doesn’t seem all that related, or is it?

Some of you might have recently seen the news story about an Idaho doc, Ryan Cole who had stated in public that he was successfully treating Covid with Ivermectin which prompted the Idaho conventional medicine people’s trade protection union (d/b/a the “Idaho Medical Association) to file a complaint against him with the state medical board.

Here is the article. https://idahocapitalsun.com/2021/10/11/it-should-be-stopped-idaho-medical-group-files-complaint-against-dr-ryan-cole/.

The first sentence of the article says: “The Idaho Medical Association says Cole’s own public statements indicate he is treating patients outside Idaho’s standard of care.” (And, no, I don’t think the Fifth Amendment protection applies here.)

The Idaho medical board’s problem is going to be that it doesn’t know which patients Dr. Cole prescribed Ivermectin to, so it doesn’t know which records to subpoena to prove Dr. Cole’s admission of guilt.

The Cali. Board’s “enhanced authority” to search would solve that problem. So, you can see why the board wants that power, which would allow for additional charges against doctors who say in public that they are treating patients with non-government sanctioned Covid treatments.

To me, that statement by the Legislative consultant adds a First Amendment problem to the existing Fourth Amendment problem with this “enhanced authority” scheme.

For further context for people interested in these issues, you might recall that the Board did request “enhanced authority” via SB 920. (“Enhanced authority” seems like bad phraseology in that it is reminiscent of the little bit of torture euphemistically referred to as “enhanced interrogation” during the Iraq War.)

Here is my post about that bill and take note of the title, “Cali. SB 920 bites the dust! (for now at least).” https://wp.me/p7pwQD-1fZ.

Are the Democratic sponsors going to try to shoehorn SB 920 into AB 2098? The only answers I can see are yes, or no, it was just some superfluous material contained in this legislative summary by the consultant.

My friend, colleague, and vaccine brainiac Greg Glaser and I have been kicking this around. He received some input from someone very close to the legislative process on this side (hint: English accent who is everywhere) who assured Greg that AB 2098 won’t be amended to include the Board’s “enhanced authority” to conduct illegal searches and seizures because the organizational sponsor/creator of the bill, and a prominent public rights organization are against it.

I hope she’s right, but still, let’s keep our eye on it.

Rick Jaffe, Esq.

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