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California quietly disavows medical misinformation law before courts can strike it down

Repeal provision slipped into Medical Board of California reform bill in recent weeks, but no one is taking credit for it. 9th Circuit questioned law's constitutionality this summer.

Published: September 12, 2023 11:00pm

California's COVID-19 medical misinformation law, which threatens the licenses of doctors who deviate from a fluctuating "scientific consensus" in conversations with patients, got a frosty reception in front of trial and appeals courts this year. 

Signed into law by Democrat Gov. Gavin Newsom nearly a year ago, AB 2098 may not exist by the time judges get around to deciding its constitutionality.

A provision to repeal the law was apparently added to Senate Bill 815, which makes changes to the Medical Board of California, in late August or early September with the legislative session winding down. Nobody seems to know, or is willing to say, how it got there.

Jenin Younes and Laura Powell, lawyers for one set of doctors who obtained a preliminary injunction against the law in January, told Just the News they were blindsided by the repeal provision, saying it wasn't part of any settlement talks in their case.

"It's incredibly last minute," Powell said. "Thursday is the last day to vote on bills, and it has to be passed by both chambers. There's no opportunity for public input and debate."

"We are considering next steps" in the wake of this development, Younes said, with their motion for summary judgment due Oct. 2. "We are unlikely to move for dismissal at this time, certainly not until repeal is complete."

One of their arguments is that Newsom's signing statement that purportedly narrows the law's application has no legal effect. 

Just the News reviewed the legislative history in consultation with Powell.

The Assembly Appropriations Committee mentioned the repeal provision in SB 815 in a Sept. 1 hearing but not in the bill analysis dated Aug. 21. The Medical Board itself didn't mention any such provision at its Aug. 24 meeting or in the agenda.

The repeal provision then appeared in the Sept. 5 version of the bill and remains in the latest version, Sept. 11. It's also mentioned in two Assembly floor analyses last week, without elaboration. The last three bill versions were amended by the Assembly, and the first three, the Senate.

Just the News could not get an explanation from SB 815's Senate sponsor or Assembly principal coauthor how, when and why the repeal provision got in the bill.

State Sen. Richard Roth's office said to contact the Senate committee that oversees professions, which did not return a voicemail, while Assemblyman Marc Berman's office didn't respond to queries.

The California Medical Association, which supported the misinformation law, has been on the warpath against SB 815, in part because it would sharply raise doctors' license renewal fees. 

However, it's not clear whether the group has spoken against the repeal provision, and CMA didn't answer queries about its views or knowledge of how the provision got in.

CMA is also fighting to ban another form of speech: nurses calling themselves "doctors." 

Younes told Just the News she wonders whether the repeal provision is related to a 9th U.S. Circuit Court of Appeals hearing in a different lawsuit that went badly for the state. The provision wasn't in the July 12 bill version, five days before that hearing.

Judge Danielle Forrest repeatedly grilled Deputy Attorney General Kristin Liska, who claimed doctors could tell patients "garlic cures cancer" if the court struck down the law.

"You give some dramatic examples, and I understand why," said Forrest, appointed by President Trump but recommended by Oregon's Democratic senators. But disagreement on COVID "has existed even amongst the medical community about what we do about it." 

The law refers to "consensus in the scientific community as though that's something different or in addition to the standard of care" doctors are already expected to follow, which "seems odd," Forrest said.

When Liska emphasized doctors were still free to "go on talk shows" and publish COVID research without fearing for their license, Forrest asked whether her pediatrician could get in trouble for telling her he didn't give the vaccine to his children. If that disclosure is "contradicted by the contemporary scientific consensus," it's possible, Liska said.

This troubled Judge Kathleen Cardone. "Isn't that exactly what they're worried about?" she asked, noting that Liska said statements that vaccines contain microchips and "children under a certain age shouldn't get them" could both trigger liability.

Another potential factor in the repeal provision was opposition from the ACLU of Northern California, which filed friend-of-the-court briefs in the four known lawsuits against AB 2098. Vaccine skeptic and Democratic presidential candidate Robert F. Kennedy Jr. served as counsel on one of those suits, which was included in the same January preliminary injunction.

"We are happy that the Legislature is attempting to address the defects in last year’s legislation,” ACLU-NC senior attorney Chessie Thacher told the Los Angeles Times on Monday, calling the law "dangerously overbroad and confusing." 

A spokesperson for the civil liberties group told Just the News no one was "available to respond" to questions about its potential influence in the addition of the repeal provision.

The Times report, which called the bill "well-intentioned" but "poorly worded," didn't say who might have introduced or approved the repeal language. It quoted one of AB 2098's authors, Assemblyman Evan Low (D), downplaying the import of the repeal provision.

“Fortunately, with this update, the Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments," Low said. 

His office gave Just the News the same statement, declining to answer queries about whether Low was given notice of the repeal provision or an opportunity to propose changes, and what the law accomplished if the board already had the necessary authority.