The New Civil Liberties Alliance (NCLA), which Columbia lawyer Philip Hamburger founded in 2017, cheekily describes itself as “a civil libertarian alternative to the ACLU that really cares about the rights in the Constitution.” 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 power of the state’s medical board to penalize physicians for’ unprofessional behaviour’.
That alliance is less surprising when you read AB 2098, which threatens to penalize doctors for sharing “misinformation” about COVID-19 with their patients. The law, which is expected to take effect on Jan. 1, defines “disinformation” as advice “contrary to contemporary scholarly consensus” — an open invitation to the suppression of 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), representing two other doctors, makes similar claims in a lawsuit it filed last month.
The Southern and Northern California chapters of the ACLU agree with a brief they recently filed in support of the JLC’s lawsuit. They say AB 2098, which the JLC calls the “Physician Censorship Law,” is unnecessary and unconstitutional.
Lawmakers who supported AB 2098 said they feared doctors would prescribe ineffective and potentially dangerous treatments for COVID-19. But existing regulations already give the California Medical Board the authority to take action against doctors for “gross negligence,” “repeated negligent acts,” “incompetence,” and “any act involving dishonesty or corruption.”
California courts “have long interpreted the kinds of behaviors that legislatures have been concerned about — such as failing to provide patients with enough information to make informed health choices, committing medical fraud, and providing patients with medically inappropriate treatment — as falling under” that rule, the short notes of the ACLU. Indeed, in considering AB 2098, the legislature recognized that the [medical board] used to be already fully capable of filing an accusation against a physician for this type of misconduct.'”
The new law, on the other hand, exposes doctors to disciplinary action for sharing their honest opinions about COVID-19 if the medical board believes they deviate from “scientific consensus,” a term the law does not define. That vague standard poses a problem with due process, since the law doesn’t fairly inform doctors of what conduct it achieves. It also poses a problem with freedom of speech as it encourages self-censorship.
Given the “ambiguities” inherent in the state’s new definition of unprofessional conduct, the ACLU briefing says, “doctors will be reluctant to speak up and share their views with patients about a rapidly evolving disease with many unknowns. At any time the state was able to determine that a physician has violated AB 2098 [by] share an unconventional opinion and pursue their medical license.”
While some unconventional opinions amount to quackery, others may ultimately be justified. Over the course of the COVID-19 pandemic, conventional wisdom on topics such as patient intubation, the usefulness of cloth face masks, isolation periods, and the effectiveness of vaccines in preventing virus transmission has repeatedly shifted in response to emerging evidence.
In addition to violating physicians’ freedom of speech, AB 2098 undermines that discovery process. It tells skeptical doctors to shut up or risk their licenses and livelihoods by openly sharing their opinions.
When he signed AB 2098 into law 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 claimed the bill was “narrowly tailored” to cover doctors who “acted with malicious intent” or “markedly deviated from the required standard of care.”
If that were true, the law would be superfluous. But contrary to Newsom’s wishful thinking, the law will be enforced as written, and that prospect should alarm anyone who really cares about the rights in the constitution.
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