Founded in 2017 by Columbia legal scholar Philip Hamburger, the New Civil Liberties Alliance (NCLA) cheekily describes itself as “a civil libertarian alternative to the ACLU that actually cares about constitutional rights.” It may therefore seem surprising that two California chapters of the American Civil Liberties Union (ACLU) have joined the NCLA in opposing a new California law that expands the state medical board’s authority to punish doctors for “unprofessional conduct.”
This alliance is less surprising once you read AB 2098, which threatens to penalize doctors for sharing COVID-19 “misinformation” with their patients. The law, set to take effect Jan. 1, defines “disinformation” as advice “contrary to current scientific consensus” — an open call to suppress constitutionally protected speech.
In a federal lawsuit filed this month on behalf of five California doctors, NCLA claims AB 2098 is unconstitutionally vague and inconsistent with the First Amendment. The Justice Legal Center (JLC), which represents two other doctors, makes similar claims in a lawsuit it filed last month.
The Southern and Northern California chapters of the ACLU agree in a brief they recently filed in support of the JLC lawsuit. They say AB 2098, which the JLC calls the “medical censorship law,” is unwarranted and unconstitutional.
Lawmakers who supported AB 2098 said they were concerned that doctors could prescribe ineffective and potentially dangerous treatments for COVID-19. However, existing regulations already give the California Medical Board the power to take action against doctors for “gross negligence,” “repeated negligence,” “incompetence” and “any act involving dishonesty or corruption.”
California courts “have long interpreted the types of conduct that the Legislature feared — such as failing to provide patients with sufficient information to make informed health decisions, committing medical fraud and providing medically inappropriate treatment to patients — as falling under” the rule, the ACLU brief notes. “In considering AB 2098, the Legislature did recognize that [medical board] was ‘already fully capable bringing charges against the doctor for this type of misconduct.’
The new law, by contrast, disciplines doctors for sharing their honest opinions about COVID-19 if a medical board believes they are deviating from “scientific consensus,” a term the law does not define. This vague standard presents a due process problem because the law does not give doctors fair information about what conduct has achieved. It also presents a free speech problem because it encourages self-censorship.
Given the “ambiguities” contained in the state’s new definition of unprofessional conduct, the ACLU brief says, “Physicians will be reluctant to voice their opinions and share their opinions with patients about a rapidly evolving disease with many unknowns.” could determine that the physician violated AB 2098 [by] share an unconventional opinion and go after their medical license.”
While some unconventional views may constitute quackery, others may ultimately be justified. During the course of the COVID-19 pandemic, conventional wisdom on topics such as patient intubation, the utility of cloth face masks, isolation periods, and the effectiveness of vaccines in preventing transmission of the virus has repeatedly changed in response to new evidence.
In addition to infringing on physicians’ free speech, AB 2098 undermines that discovery process. He tells skeptical doctors to keep their mouths shut so as not to jeopardize their licenses and livelihoods by openly sharing their opinions.
When he signed AB 2098 in late September, California Governor Gavin Newsom acknowledged that legislative responses to COVID-19 “misinformation” could have a “chilling effect” on conversations between doctors and patients. But he argued the bill was “narrowly tailored” to cover doctors “acting in bad faith” or “manifestly deviating from the required standard of care”.
If that were true, the law would be redundant. But contrary to Newsom’s wishful thinking, the law will be enforced as written, a prospect that should worry anyone who truly cares about rights in the Constitution.
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