It was reported on Monday by the Los Angeles Times that legislators discretely incorporated the repeal of AB 2098, (Bus. & Prof. Code 2270), the temporarily enjoined Covid misinformation law, into the comprehensive health care boards bill, SB 815. Given the bias of the story, I won’t provide you the link to it. Instead, I will dive into the source:
Here is the full SB 815 Bill Text – SB-815 Healing arts_. It is 28 pages.
Like all bills, it starts with what it is doing: The embolded part is our law:
An act to amend Sections 853, 2001, 2007, 2019, 2020, 2064.5, 2065, 2096, 2097, 2224, 2225.5, 2234, 2266, 2307, 2334, 2425, 2435, and 2450 of, to amend and repeal Sections 2529, 2529.1, 2529.5, and 2529.6 of, to add Sections 2024.5, 2220.1, 2220.2, 2225.7, 2232.5, and 2307.5 to, to add Article 3.5 (commencing with Section 2950) to Chapter 6.6 of Division 2 of, and to repeal Section 2270 of, the Business and Professions Code, and to amend Section 123110 of the Health and Safety Code, relating to healing arts.”
On page 21: “SEC. 19. Section 2270 of the Business and Professions Code is repealed.”
The bill has to be passed by Thursday, 9/13, and I believe it will. I assume the governor will sign it soon thereafter, and like most laws, it will go into effect (the repeal) on 1/1/2024.
Despite the uproar from legislators, the medical board, the mainstream medical trade organizations, and the media about the urgent need to to sanction doctors for spreading Covid misinformaiton, and mindful that this whole pile of unconstitutional claptrap started with a couple paragraph press release from the Federation of State Medical Boards, this is how the Legislature marks the end of AB 2098/Bus. & Prof. Code 2270.
Let’s correct the Legislature’s overly terse non epitaph and give it its proper send off.
Here lies the dead carcass of the California Covid misinformation law. Misconceived in fear, constitutional obtuseness, anti-science and hubris. Siblings include the late societal lockdowns, including the especially nefarious shut down of schools, the comatose but perhaps soon to be revived mask mandates, and the most notorious sibling of them all, the dormant perhaps soon to be revived fifth booster mandate (or whatever is the current iteration).
Section 2270 date in effect: 1/1/2023
Date of the legally induced coma by Judge Schubb: 1/23/2023, for a total of 22 days in effect.
Expected date of death, via SB 815: 1/1/2024
So is there a next in the Cali battle?
Even the constitutionally obtuse get the message eventually. I think the last straw was the 9th Circuit panel’s bashing the Attorney General’s lawyer over the head with information and questions straight from Judge Schubb’s preliminary injunction opinion. To my recollection, they asked no questions of the appellants’ counsel, which is very rare. The panel sent a clear signal to the AG’s office when it asked the AG attorney “Assume we find that strict scrutiny applies to the case, does the law pass strict scrutiny?” FYI: a finding that a law is subject to strict scrutiny is the kiss of death in constitutional litigation. Nothing (or almost nothing) survives strict scrutiny, just as the opposite stardard of review, “rational relationshop” is the breath of life to a law. No laws are struck down if they have any real, speculated or hypothical relationship to a government interest or function.
The Legislature (and the medical boards) made a tactical retreat. “He who fights and runs away lives to fight another day.”
But we have some practical issues. Submitted and pending decision before the 9th Circuit is the plaintiffs’ appeal of District Judge Slaughter’s denial of their preliminary injunction. In the eastern district’s related Hoang and Hoeg cases, cross motions for summary judgment on the constitutionality of the AB 2098/2270 are set to be heard on January 8, 2024, seven days after the repeal of the law goes into effect.
Typically, judges don’t like deciding constitutional issues about repealed laws. So, I would expect the AG’s office to notify the 9th about the impending repeal of the law and argue that the appeal is now moot. The AG might act fairly soon because they would have no direct knowledge about when the 9th’s decision will come down. The last thing the AG wants is a decision on a law that the legislature is rescinding. They might notify our judge, but that is less pressing because we and the Hoeg plaintiffs are first up with summary judgment papers which are due in a few weeks.
The 9th has cases pending decision for well over a year (two of which I am closely following, they being RFKJr’s case against Facebook, and Judge Bernal’s decision granting judgment to the defendants in the FDA’s case to shut down a California stem cell clinic). It has been less than two months since the 9th heard argument in the AB 2098 appeal. So it is mighty early for them. The Court’s play could be to do nothing and dismiss the appeal on its own motion after the repeal goes into effect. That would be what the AG should be hoping for, but I would expect there to be some back and forth from the parties on this.
Our situation is alittle different. I think we are prevailing parties under the law (unlike the plaintiffs in the McDonald appeal pending before the 9th who did not get an injunction). And that means the state might be forced to pay the piper.
All this is just speculation, other than the biggie that the Legislature is about to bury the legal abomination that was AB 2098. We will have to see how this all plays out.
A small dark cloud
Regretably, I do have to mention one dark cloud in our otherwise sunny skies. From even before the introduction of AB2098, there have been noises, speculations or assertions that the boards have the power to sanction docs for Covid misinformation under their powers to regulate the standard of care. I think that is inconsistent with Ninth Circuit authority, but the boards and its supporters probably do not agree. I hear that there is a pending case or two involving Covid misinformation to patients, but there have been no final resolution. I think these cases should be challenged in court, prior to the administrative process. I think there are now the legal tools to do so. (That is what we have done so far successfully in the Eggleston case in Washington state.)
So, we may not be done yet. Still, you fight the fight you have before you. The purpose of Hoang, CHD and PIC v Bonta, as well as the companion case Hoeg v. Newsom was to stop AB 2098/2270. We did that. Soon the law will be gone.
We take the W and move on to the next Covid battle, whatever that is and wherever that takes us.
Rick Jaffe, Esq.