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California still threatening doctors for COVID claims after ditching misinformation law: suits

Golden State's lawyers wouldn't accept permanent injunction against AB 2098 or admit it was unconstitutional in hearing to determine possible mootness of lawsuit, plaintiffs' lawyer says.

Published: January 12, 2024 11:00pm

California's medical misinformation law is a zombie, coming back to life against doctors who flout an amorphous "scientific consensus" on COVID-19 in conversations with patients, despite the Democrat-led Legislature and Gov. Gavin Newsom killing the law last fall before a federal court could strike it down as unconstitutional.

That's the argument made by doctors, medical nonprofits, and independent presidential candidate Robert F. Kennedy Jr., who previously sued to block the law, AB 2098, in a new lawsuit against Attorney General Rob Bonta and the leaders of California medical and osteopathic regulatory boards.

The Medical Board "is still targeting 'Covid misinformation,' and physicians are still being intimidated and threatened by disciplinary action," argue Physicians for Informed Consent, Kennedy's Children's Health Defense and doctors Pierre Kory, Bryan Tyson, Letrinh Hoang.

The only difference with the law's repeal, which took effect Jan. 1, is "the investigations and public threats are based on the general standard of care statute," rather than AB 2098's focus on purported COVID-19 misinformation.

Several California medical groups including its American Medical Association and American Academy of Pediatrics affiliates paid firms to lobby related to AB 2098, but most included the bill in a large bucket of legislation, according to California State Lobbying Search

Astellas Pharma stands out for paying a firm $73,000 in two quarters of 2022 to lobby on just two bills including AB 2098, while the only other drugmaker on the list is Glaxo Smith Kline, which paid nearly the same amount total but most of that on its own in-house lobbyists.

Osteopathic Physicians and Surgeons of California (about $23,000) and the California Society of Allergy, Asthma and Immunology (under $10,000) each paid firms to lobby on AB 2094 and just two other bills.

The law made strange political bedfellows, with the ACLU of Northern California filing friend-of-the-court briefs opposing it in four known lawsuits against AB 2098.

Another set of doctors is trying to sustain their November 2022 lawsuit, which together with Kennedy's prompted a preliminary injunction nearly a year ago, in response to California's mootness defense, which argues the law's repeal means the suit should be dismissed.

The doctors include University of California San Francisco epidemiologist Tracy Beth Hoeg, who studies COVID interventions; Stanford emergency room physician Ram Duriseti, who is suing it for punishing his COVID political activity; and former UC Irvine psychiatrist Aaron Kheriaty, fired for refusing the school system's COVID vaccine mandates.

Their lawyers at the New Civil Liberties Alliance argued in a Nov. 27 filing that nominal damages alone can sustain the suit, because their clients' speech was chilled from when the law took effect Jan. 1, 2023, until Jan. 24, when Shubb issued the injunction. 

The doctors could have lost their licenses for simply providing "their honest opinions and individualized advice on Covid-related matters to their patients," the filing said. The doctor for one plaintiff, the "immunocompromised" Azadeh Khatibi, said he couldn't give her his "genuine opinion" on COVID topics because of the law.

The state's lawyers wouldn't agree to a permanent injunction or acknowledge AB 2098 was unconstitutional in a Dec. 18, 2023, hearing before by U.S. District Judge William Shubb, who is also hearing Kennedy's suits, NCLA lawyer Casey Norman told Just the News.

The responses to Shubb's questions were "helpful in showing that the CA defendants are not operating in good faith and repealing because they recognized the unconstitutionality of the law, but instead to avoid the court’s review," Norman wrote in an email. 

California surprised NCLA by arguing its claims for nominal damages are invalidated by state sovereignty immunity under the 11th Amendment, which California didn't argue in briefing, Norman said.

He also said Shubb "seemed inclined to request further briefing on mootness to allow the parties to fully respond to each other before he makes a final ruling."

California's lawyers didn't respond to Just the News queries for their characterization of the hearing.

Shubb set a motion briefing schedule Jan. 2 that runs through April 1, ending with a hearing to consider soon-to-be-filed motions to dismiss by the state and regulatory boards.

While the judge was allegedly perplexed about why California wouldn't disavow bringing back something like AB 2098, he gave the Golden State an early victory just after Christmas in another lawsuit against different speech regulation.

Shubb refused to issue the preliminary injunction sought by Elon Musk's X against a law requiring social media companies to post their terms of service and report their content moderation practices around hate speech, "extremism," disinformation, "foreign political interference," and other categories.

"The reporting requirement merely requires social media companies to identify their existing content moderation policies, if any, related to the specified categories," and report factual statistics if they "choose to utilize the listed categories," Shubb wrote.

Kennedy's new suit with doctors and nonprofits points out that bill sponsor and Democratic Assemblyman Evan Low's office responded to the repeal by assuring the public the Medical Board can still "hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments."

By telling doctors that "all interactions" with patients "must be conducted professionally," including their discussions on any topic, the board "attempts to revive the professional speech exception to free speech" the Supreme Court rejected in holding a California law that coerced speech from pro-life pregnancy centers was likely unconstitutional, the suit says.

The board itself punished at least one doctor for telling a patient that a COVID vaccine was "associated with increases in miscarriages and that the patient’s girlfriend should avoid the Covid shot if she wanted to get pregnant," according to the plaintiffs. 

This is "especially noteworthy [because] there was no doctor-patient relationship between the physician and the patient’s girlfriend," meaning the board was "exercising powers it did not even have under the repealed statute," they said.

Other sanctionable statements by doctors to patients, according to the board, include that "masks do not stop the virus" and COVID vaccines do not "stop infection and transmission," the suit says.

Yet another lawsuit seeking a permanent injunction against the law remains pending before the 9th U.S. Circuit Court of Appeals. 

The Liberty Justice Center filed a brief Oct. 31, 2023, when AB 2098 was still in effects, that argued the case is not "anticipatorily moot" because it provides "'an opportunity to decide’ an important recurring issue." The docket shows no action in the case since then.

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