A federal judge in California on Wednesday granted Children’s Health Defense-California Chapter’s request for a preliminary injunction to block a California law that would have allowed the state’s medical boards to punish doctors for spreading “COVID-19 misinformation.”
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A federal judge in California on Wednesday granted Children’s Health Defense (CHD)-California Chapter’s request for a preliminary injunction to block a California law that would have allowed the state’s medical boards to punish doctors for spreading “COVID-19 misinformation.”
In his 30-page opinion, Senior U.S. District Judge William Shubb determined the defendants in the case — California Gov. Gavin Newsom, Attorney General Rob Bonta and California Medical and Osteopathic Boards — provided “no evidence that ‘scientific consensus’ has any established technical meaning,” and that the law provides “no clarity” on the meaning of the word “misinformation.”
Judge Shubb also found the “plaintiffs have established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges.”
The ruling pertains to a lawsuit filed Dec. 1, 2022, in the U.S. District Court for the Eastern District of California on behalf of plaintiffs CHD-California Chapter, Dr. LeTrinh Hoang and Physicians for Informed Consent.
The lawsuit was filed after Newsom, on Sept. 30, 2022, signed California Assembly Bill 2098 (AB 2098), which was set to take effect Jan. 1.
AB 2098 bars doctors “from providing ‘treatment or advice’ ‘to a patient’ ‘related to COVID-19’ when that treatment or advice includes (1) ‘false information’ (2) ‘that is contradicted by contemporary scientific consensus’ (3) ‘contrary to the standard of care.’ If a doctor goes against this ill-defined ‘consensus,’ the doctor is guilty of ‘unprofessional conduct’ and can face disciplinary action.”
Judge Shubb’s ruling prevents enforcement of AB 2098 pending resolution of the lawsuit.
According to lead counsel Rick Jaffe, “Judge Shubb looked at the law and correctly determined that the COVID misinformation was unconstitutionally vague, in large part because the plaintiffs in both cases showed there is no ‘current scientific consensus,’ given the fast-changing pace of the pandemic.”
“The case will now proceed on two tracks,” Jaffe said, adding:
“The parties will continue to litigate the case before Judge Shubb and we will be filing a motion for summary judgment in the not-too-distant future.
“But because we won, and because a judge in the Central District of California denied a similar challenge to AB 2098, the attorney general will certainly appeal and argue that the central district judge was right. So, there is much more to come.”
CHD Chairman and Chief Litigation Counsel Robert F. Kennedy, Jr., who also litigated the case, said:
“CHD and the California chapter are excited and proud to be a part of this groundbreaking litigation, especially since there are other states also trying to censor physicians for speaking out against the mainstream medical’s position of the safety and efficacy while downplaying if not ignoring the harm caused to many who have taken the COVID shots and every booster.”
Kennedy said CHD’s efforts are not limited to the California law. “We are looking into challenging other state laws on the same grounds as we asserted in this case,” he said.
Mary Holland, CHD president and general counsel, also applauded Judge Shubb’s decision:
“This is not only a victory for California doctors, but for professionals and citizens around the world in this battle for freedom. The right to share and receive truthful information, no matter how uncomfortable it may be for those currently in power, must remain inviolate.”
Holland singled out this statement in the ruling: “Because the term ‘scientific consensus’ is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”
Judge Shubb’s ruling technically is limited only to “the plaintiffs, all persons represented by the plaintiffs, and members of the organizations that filed the lawsuits.”
Judge: AB 2098 ‘operates to inhibit exercise of First Amendment freedoms’
AB 2098 was introduced in February 2022, by California Assemblymember Evan Low, who had previously formed the Vaccine Work Group with six other Democratic lawmakers, with the intent of developing legislation promoting COVID-19 vaccines and “battling misinformation.”
The bill, which garnered the support of the American Medical Association for its efforts to address public health “disinformation,” passed the California Assembly in May 2022, and the California Senate in late August 2022, before Newsom signed it into law.
CHD-California’s motion for preliminary injunction included a declaration by Dr. Sanjay Verma, who highlighted numerous examples of public health authorities walking back recommendations that were previously deemed the “consensus” view.
Judge Shubb cited Verma’s declaration in his order, stating that it “explains in detail how the so-called ‘consensus’ has developed and shifted, often within mere months, throughout the COVID-19 pandemic.”
“Because COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time,” Judge Shubb wrote. As a result, “drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible.”
“Because the term ‘scientific consensus’ is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law,’” the judge said.
“Vague statutes are particularly objectionable when they ‘involve sensitive areas of First Amendment freedoms’ because ‘they operate to inhibit the exercise of those freedoms,’” he added.
Wednesday’s ruling also raised questions about who determines what constitutes a “consensus,” and how they make that determination:
“Who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)?
“In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered ‘contemporary’?
“And what source or sources should physicians consult to determine what the consensus is at any given time (perhaps peer-reviewed scientific articles, or clinical guidelines from professional organizations, or public health recommendations)?
“The statute provides no means of understanding to what ‘scientific consensus’ refers.”
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