Last year, the California legislature enacted statutory changes ostensibly to limit the spread of misinformation and disinformation about COVID-19 by licensed physicians. 2022 Cal. Stats. ch. 938 (AB 2098), See California Legislates Covid-19 Orthodoxy and Could California Bill Result In Discipline Of C.D.C. Doctors?
Late last year, U.S. District Judge Fred W. Slaughter denied a motion for a preliminary injunction in lawsuit filed two California physicians. McDonald v. Lawson, U.S. Dist. Ct. Case No. 8:22-cv-01805-FWS-ADS (C.D. Cal.). Judge Slaughter ruled that the law incidentally burdens speech as a regulation of professional conduct, is rationally related to a legitimate state interest, and falls "within the longstanding tradition of regulations on the practice of medical treatments". See Judge Slaughter Refuses To Enjoin Physician Gag Statute.
A separate challenge to AB 2098 was filed in the Eastern District of California. Høeg v. Newsom, U.S. Dist. Ct. Case No. No. 2:22-cv-01980 WBS AC (E.D. Cal.). Yesterday, Judge William B. Shubb preliminarily enjoined enforcement of AB 2098, ruling that the plaintiffs had demonstrated likelihood of success on the vagueness challenge to the statute. Readers may recall that I was very critical of AB 2098's reliance upon scientific consensus and Judge Shubb's critique of the law in this respect is devastating:
The statute provides no clarity on the term’s [“contemporary scientific consensus”] meaning, leaving open multiple important questions. For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered “contemporary”? And what source or sources should physicians consult to determine what the consensus is at any given time (perhaps peer-reviewed scientific articles, or clinical guidelines from professional organizations, or public health recommendations)? The statute provides no means of understanding to what “scientific consensus” refers.
Because the plaintiffs prevailed on their vagueness challenge, Judge Shubb did not address the merits of their First Amendment claims.
