Judge Slaughter Refuses To Enjoin Physician Gag Statute

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.  Two California licensed physicians have challenged this legislation on two bases:

  • Impermissible content and viewpoint restriction on speech in violation of the First Amendment of the U.S. Constitution; and
  • Vagueness under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

McDonald v. Lawson, U.S. Dist. Ct. Case No. 8:22-cv-01805-FWS-ADS (C.D. Cal.).  Late last month, Judge Fred W. Slaughter denied the plaintiffs' motion for a preliminary injunction.  With respect to the plaintiff's First Amendment claim, 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". 

California's law is saying that truth is found in consensus and there is (and will be) consensus because dissent is not allowed.

For three millennia, medical consensus supported bloodletting as a treatment for all manner of human ailments.   Clearly, bloodletting had the weight of history and consensus behind it.  Nineteenth century challenges to bloodletting were met with incredulity:

"The thinking man", remarked one physician, "finds it hard to believe that the fathers of British medicine were always in error, and that they were bad observers and mistaken practitioners."

William Stokes, "The address in medicine'",  Br. Med J., 1865, ii: 133-142, p. 135 (quoted in J. H. Warner, Therapeutic Explanation and the Edinburgh Bloodletting Controversy: Two Perspectives on the Medical Meaning of Science in the Mid-nineteenth Century, Medical History 245 (1980)).

The legislation is also being challenged in the Eastern District of California.  Hoang v. Bonta, U.S. Dist. Ct. Case No. 2:22-at-01221 (E.D. Cal.)