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CA AB 2098 - An AFLDS Issue Brief for Citizens and Policymakers

California Code, Chapter Business and Professions Code Section 2270
 

A new and unconstitutional Orwellian, gag-order-type law, which takes effect on January 1, 2023, permits the California Medical Board (CMB) to penalize any doctor who conveys opinions contrary to the approved COVID-19 “contemporary scientific consensus”.
 

Any American governmental body such as the CMB which attempts to impose mandatory medical speech in compliance with the vague term “contemporary scientific consensus” automatically commits multiple serious facial constitutional violations of our free speech rights under the First Amendment. Said governmental body will also incur governmental liability for those constitutional violations. CA AB 2098 attempts to mandate an undefined “contemporary scientific consensus” standard for mandatory medical speech. Such a law attempts to illegally suppress any and all protected differing professional opinions. Differing professional opinions are of course protected from governmental interference, censorship and suppression by our great First Amendment. See Nat’l Inst. Of Family & Life Advocates (“NIFLA”) v. Becerra, 138 S.CT. 2361, 2374-2375 (2019). The importance of differing professional opinions is also enshrined in the practice of medicine by the longstanding right and traditional entitlement of patients to the time-honored “second opinion”. If everyone were forced to adopt the undefinable “conemporary scientific consensus”, second opinions could be deemed to be “misinformation”, instead of treated as a valid second medical opinion which may be correct.
 

History:
The law (formerly, “AB 2098”) shall become effective on January 1st, 2023. It has now
been codified as California Code, Chapter Business and Professions Code Section 2270. Physicians and surgeons: unprofessional conduct. Chaptered by Secretary of State – Chapter 938, Statutes of 2022. The law permits the Medical Board of California to discipline doctors who “disseminate” misinformation counter to the approved COVID-19 “contemporary scientific consensus.” It’s an obvious and direct attack on the First Amendment (freedom of speech), as well as the Fifth Amendment (an individual cannot be compelled by the government to provide incriminating information about himself) and the Fourteenth Amendments (equal protection under the laws). September 30, 2022 - California Assembly Bill 2098 (formerly “AB 2098”) was approved and signed into law by California Governor Gavin Newsom.
 

Shocking, Unprecedented and Defamatory “Legislative History” of CA AB 2098:
The transcripts of the California Committee hearings can be found at this link1. Shockingly, these legislative hearings, particularly on 8/30/22 and 5/13/22, specifically target particular doctors, including Dr. Simone Gold, M.D., J.D., with unfounded, false, and defamatory allegations of spreading “misinformation” or “disinformation”. So, the very legislative history of CA AB 2098 is partially founded on an illegal governmental defamation campaign, as well as on clear constitutional violations of the free speech rights of the targeted doctors, and includes its own statements of false information such as the now-disproved “safety and efficacy” of the experimental mRNA injections. This flawed legislative history undermines the statute as well.
 
Relevant (Federal) Case Law: Nat’l Inst. Of Family & Life Advocates (“NIFLA”) v. Becerra, 138 S.CT. 2361, 2374-2375 (2019).
“NIFLA is the leading and most recent Supreme Court precedent on free speech”2. Significantly, in NIFLA, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“FACT Act”) similarly attempted to impose analogous “content moderation” (i.e., mandatory medical speech) upon health care providers. The FACT Act required pro-life health care clinics to inform patients that free or low-cost abortions were available in California and required the clinics to give the patients a telephone number to call for those services. The United States Supreme Court held that this law was likely an unconstitutional violation of the First Amendment. The Court noted that content-based laws targeting speech based on its communicative content, which compel speakers to speak a particular message, are presumptively unconstitutional. CA AB 2098 does exactly that. CA AB 2098's attempt to make a vague and undefinable “contemporary scientific consensus” into “mandatory medical speech”, is a fatal constitutional violation under any fair First Amendment analysis. This bill was sadly passed in violation of the lawmakers’ oaths of office to uphold the Constitution, and is blatantly unconstitutional under NIFLA.
 

Such content-based speech laws can only be justified if the government proves that they are narrowly tailored to serve compelling state interests (Reed v. Town of Gilbert, 576 U.S. 155 (2015)). The Court also rejected the Ninth Circuit categorization of “professional speech” as not requiring strict scrutiny. The Court expressly stated that “Speech is not unprotected merely because it is uttered by professionals.” Strict scrutiny is applicable. Doctors also obviously have free speech rights, and any interference with doctors’ free speech rights must be strictly scrutinized.


Three Federal Lawsuits Challenging the New Law:
 

1. Hoang v. Bonta, 22-cv-02147, EDCA
This suit was filed on December 1, 2022 in the U.S. District Court for the Eastern District
of California by Physicians for Informed Consent (“PIC”) and the California Chapter of Children’s Health Defense (“CHD”) on behalf of plaintiff Letrinh Hoang, a California licensed osteopathic physician with more than 25 years’ experience. The suit alleges that the new California law violates physicians’ First Amendment and free speech rights by prohibiting them from sharing information with their patients if it is inconsistent with what the law refers to as “contemporary scientific consensus” and the “standard of care.” The suit incorporates NIFLA in its complaint. It also calls attention to misleading data regarding prevention of hospitalizations and death – posing troubling questions, including unexplained rise in all-cause mortality among younger populations.
   
2. Høeg v. Newsome, 2022-cv-01980, EDCA
This suit was filed on November 1, 2022 in the U.S. District Court for the Eastern
District of California by New Civil Liberties Alliance (“NCLA”), a non-partisan civil rights group. The plaintiffs consist of five California-licensed physicians. This case cites NIFLA and emphasizes the defendants violate the plaintiffs’ Fourteenth Amendment rights, as the terms “misinformation”, “disinformation”, and “scientific consensus” are “Unconstitutionally Vague”. The plaintiffs assert the new law violates their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. Several plaintiffs have already experienced threats from other colleague doctors and individuals on social media imploring them to adhere to the new law or risk losing their medical license.
 

3. McDonald, e al v. Lawson, et al, 2022-cv-01805, CDCA
This was the first suit filed against the new law. It was filed on October 4, 2022 in the
U.S. District Court for the Central District of California against the Medical Board of California and Attorney General. It was filed by Advocates for Faith & Freedom and Liberty Justice Center. The case was filed on behalf of two southern California AFLDS-affiliated doctors. Dr. Mark McDonald is a psychiatrist, and Dr. Jeff Barke is a primary care physician. Both doctors contend the new law violates the First Amendment. The complaint also notes that the new law is “unconstitutionally vague” (pages 14-15). The case is pending as it was dismissed with leave to amend.
 

The New Law is Also Unconstitutionally Void for Vagueness Under the Fourteenth Amendment:
“AB 2098 fails the heightened specificity requirement of the due process clause”3.
It is black letter constitutional law that “perhaps the most important factor affecting the clarity that the constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Village of Hoffman Estates v. Flipside, Hoffman, Estates, 455 U.S. 489, 499 (1982).3
 

CA AB 2098 – Supporting vs. Opposing Groups:
Each of following known groups that endorse AB 2098 include: the American Medical Association (AMA), Federation of State Medical Boards (FSMB), the Medical Board of California (MBC); and the Osteopathic Medical Board of California (OMBC). Each of the following known groups that oppose AB 2098 include: Advocates for Faith & Freedom; Advocates for Physicians’ Rights; American Civil Liberties Union (ACLU); America’s Frontline Doctors (AFLDS); Association of American Physicians and Surgeons (AAPS); California Health Coalition Advocacy (CHCA), Children’s Health Defense (CHD); Liberty Justice Center, New Civil Liberties Alliance (NCLA); and Physicians for Informed Consent (PIC).


1https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220AB2098

2See Motion for Preliminary Injunction and Memorandum of Law, pg. 13, Hoang v Bonta, 22-cv-02147, EDCA

3See Motion for Preliminary Injunction and Memorandum of Law, page 22, Hoang v. Bonta, 22-cv-02147, EDCA
 


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