The New Civil Liberties Alliance (NCLA), founded by Colombian legal scholar Philip Hamburger in 2017, cheekily describes itself as “a civil libertarian alternative to the ACLU that actually cares about constitutional rights.” It may come as a surprise, then, that two California chapters of the American Civil Liberties Union have joined NCLA to oppose a new California law that expands the state medical board’s powers to discipline physicians for “unprofessional conduct.”
This alliance is less surprising when one reads AB 2098, which threatens to penalize doctors for passing COVID-19 “misinformation” to their patients. The law, due to take effect on January 1, defines “misinformation” as advice “that contradicts the current scientific consensus” — an open invitation to suppress constitutionally protected speech.
In a federal lawsuit it filed this month on behalf of five California physicians, the NCLA argues that AB 2098 is unconstitutionally vague and inconsistent with the First Amendment. The Justice Legal Center (JLC), which represents two other doctors, is making similar claims in a lawsuit it filed last month.
The ACLU’s Southern and Northern California chapters agree in a brief they recently filed in support of the JLC’s lawsuit. They say AB 2908, which the JLC calls the “Physician Censorship Act,” is gratuitous and unconstitutional.
Lawmakers supporting AB 2908 said they were concerned doctors might prescribe ineffective and potentially dangerous treatments for COVID-19. However, existing regulations already give the California Medical Association authority to take action against physicians for “gross negligence,” “repeated negligent acts,” “incompetence,” and “any act involving dishonesty or corruption.”
California courts “have long interpreted the types of behaviors that lawmakers were concerned about — such as failing to provide patients with sufficient information to make informed health care decisions, committing medical fraud, and providing patients with an medically inappropriate treatment – as falling under” this rule. the ACLU briefing notes. “Indeed, in examining AB 2098, the legislature recognized that the [medical board] was ‘already fully capable to bring charges against a doctor for this type of wrongdoing.’ ”
In contrast, the new law subjects physicians to discipline if they express their honest opinions about COVID-19 when the medical board thinks they deviate from “scientific consensus,” a term the law does not define. This nebulous standard poses a due process issue because the law does not fairly tell physicians what behavior it leads to. It also poses a free speech issue as it encourages self-censorship.
Given the “ambiguities” inherent in the state’s new definition of unprofessional conduct, the ACLU letter said, “Physicians will be reluctant to voice their opinions and share their opinions with patients about a rapidly evolving disease with many unknowns.” . The state could determine at any time that a physician has violated AB 2098 [by] share an unconventional opinion and seek medical license.”
While some unconventional opinions may amount to quackery, others may ultimately be validated. Throughout the COVID-19 pandemic, conventional wisdom on issues such as patient intubation, the usefulness of cloth masks, isolation periods, and the effectiveness of vaccines in preventing virus transmission has repeatedly shifted in response to new evidence.
AB 2098 not only violates doctors’ freedom of expression, it also undermines this discovery process. It urges skeptical doctors to keep their mouths shut lest they jeopardize their licenses and livelihoods by openly voicing their opinions.
Signing AB 2098 in late September, California Gov. Gavin Newsom acknowledged that legislative responses to COVID-19 “misinformation” could have a “chilling effect” on discussions between doctors and patients. But he claimed the bill was “narrowly tailored” to cover physicians who “act with malicious intent” or “clearly deviate from the required standard of care.”
If that were so, the law would be superfluous. But contrary to Newsom’s wishful thinking, the law will be enforced as written, and the prospect should alarm anyone who actually cares about constitutional rights.