DOCTOR DISINFORMATION STATEMENT
CALIFORNIA’S NEW LAW: WHAT IT IS
On September 30, 2022, California enacted one of the most tyrannical and heinous laws this country has seen. The new law, formerly known as AB 2098, is an assault on many aspects of American values.
The law creates a new category of “unprofessional conduct” on the part of physicians and surgeons. The new addition to the definition of unprofessional conduct is to disseminate misinformation or disinformation related to COVID-19, including 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.” (CA AB 2098, Sec. 2, 2270 (a)).
First, it is a direct attack on the First Amendment of our great United States Constitution. Secondly, it silences doctors who would come to their own conclusion, rather than following a narrative by someone else. It discourages further scientific research. The new law also follows an alarming move towards socialism, as it threatens the doctor/patient relationship.
THE FIRST AMENDMENT
The First Amendment clearly states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Even doctors, perhaps especially doctors, should be allowed to exercise this right to state their thoughts.
THE FREEDOM OF PHYSICIANS
Doctors are sworn to a Hippocratic Oath to have pure and focused actions when treating patients, promising to not suffer them hurt or damage. They actually took an oath to implement their own judgment and act in the best interest of their patient.
Doctors do not forfeit their constitutional rights when they earn their medical degrees. On the contrary, they are well-trained professionals who can deliver considered professional opinions based on their experience, research, and clinical practices with numerous patients. Other doctors may have different considered professional opinions. Professional opinions, of course, sometimes differ.
Americans should be concerned that the freedom of speech would be taken away from any citizen. We should be alarmed that professionals advocating for healthcare and their own thoughts would be silenced, especially when they have science to back up their claims.
SILENCING DOCTORS SILENCES SCIENCE
Many lawsuits revolve around the “battles of the experts”, where different experts present differing expert opinions. However, there is no basis in American law or society for a government, other than the fact-finding judge assigned to that particular case, to declare one expert or the other to be the government-approved version of the truth. And there is certainly no basis to threaten or attempt to silence experts -- including California doctors as suggested in this law -- with license restrictions or revocations for not supporting a government-approved version of the “truth.”
Pink’s Disease was a name given to mercury poisoning. It was blamed on arsenic, ergo, allergies, and viruses. 30 years passed before it was discovered that Pink’s Disease was actually mercury poisoning.[1]
Marie Curie’s novel discovery of polonium and radium made so many possibilities through radioactivity. She lost her life to her work, as humans did not yet understand that it was deadly. Precautions had to be put in place to protect individuals working with it.[2]
In 1665, The Plague of London broke out. Children were encouraged to smoke tobacco to combat it. It wasn’t until 1964 that the U.S Surgeon General report labeled cigarettes deadly, urging people to not smoke.[3]
One year after New York City’s health commissioner issued an order requiring all city employees to be inoculated against COVID-19, the New York Supreme Court ordering the city to pay rehire and pay back wages to unvaccinated city employees.[4] The social hysteria should have never dictated lives claiming to be science.
Lack of scientific knowledge can be deadly. The inability to explore the science, which is what this law effectively does, is dangerous and disregards lessons from human history.
THE AMBUSHING OF THE DOCTOR/PATIENT RELATIONSHIP
Patients choose doctors based on their respect of opinion and accuracy of their medical diagnosis’. Silencing doctors also silences patients as it does not allow them to make a choice outside of a narrative, which could be used to manipulate political motives. The interference of the government in the doctor/patient relationship has been decided and clarified several times.
This is not the first time protected free speech and privacy rights of doctors in the doctor/patient relationship was attacked by American government officials who disagreed with those opinions. In fact, one of the most famous free speech and privacy cases of modern times, Griswold, et. al. v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), was just such a case.
In Griswold, a doctor was criminally convicted under a Connecticut statute for counseling a married couple regarding contraception. In reversing the doctor’s conviction, the Supreme Court found that the doctor’s treatments, associations, and doctor/patient privacy rights were protected by the penumbras emanating from the First, Fourth, and Ninth Amendments, affirming the principle that the concept of liberty protects personal fundamental human rights.
This conclusion is not startling and is consistent with California jurisprudence. In Grafilo v. Wolfsohn, 33 Cal.App.5th 1024 (2019), the California court rejected the California Medical Board’s attempt to subpoena a doctor’s patient medical records. The court found that when information about patients’ medical records is sought, California’s constitutional right to privacy places procedural and substantive limits on the California Medical Board’s subpoena power. A similar result was reached in Grafilo v. Cohanshohet, 32 Cal.App.5th 428 (2019).
Most importantly, in National Institute of Family and Life Advocates, dba NIFLA, et. al. v. Becerra, Attorney General of California, et. al., 585 U.S. ___, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018), 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 is just such a law and is presumptively unconstitutional under National Institute of Family and Life Advocates.
Not allowing doctors to say what they believe neglects the patient’s right to select a physician they believe in. Personal healthcare decisions must be choices, not mandates.