California scraps 2022 law punishing doctors who dissent from COVID consensus

(The Center Square) — California quietly repealed a law making a doctor spreading state-determined COVID-19 misinformation guilty of unprofessional conduct that could cost a doctor his or her medical license.

AB 2098, signed into law in 2022, allows the Medical Board of California to revoke the license of doctors who share any information with a patient that is contrary to the state-defined “contemporary scientific consensus” on COVID-19. The law focused on “false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”

AB 2098 remains into effect until January 1, 2024, when a new law, SB 815, signed by Gov. Gavin Newsom, invalidates action against doctors for sharing COVID-19 information.

The Liberty Justice Center, which engaged in litigation to prevent the law from taking effect, claimed that the organization’s oral arguments drove the state legislature to amend SB 815, an existing bill reauthorizing the Medical Board of California, and argued that AB 2098 violated the First Amendment.

In oral arguments in the United States Court of Appeals for the Ninth Circuit, attorney Jacob Huebert, president of the Liberty Justice Center, made the case that AB 2098 would harm patients, doctors and free speech alike.

“A medical professional can have a good faith disagreement with the government about appropriate medical treatments. It’s very dangerous for the government to prescribe one appropriate view, and particularly for the government to do so in the name of regulating conduct,” Huebert said. “AB 2098 imposes strict liability for speech and punishes advice even if the patient doesn’t follow the advice, or follows the advice and has a good result.”

An injunction was granted in January of 2023, when AB 2098 took effect, to block punishment under the law until a trial could be held. Even the American Civil Liberties Union filed an amicus brief against the law, calling it a “blunt instrument.”

“It took a federal lawsuit for California legislators to reverse course and repeal an unconstitutional attack on free speech and the doctor-patient relationship,” said plaintiff Dr. Mark McDonald in Liberty Justice Center’s case against California, in a public statement celebrating the measure’s repeal. “We need real accountability, or this will happen again.”