AB 2098—the California law signed on September 30 that takes a first stab at curtailing doctors who spread Covid misinformation––went to the courts earlier this month after a Koch-funded right-wing litigation group, the New Civil Liberties Alliance (NCLA), filed a complaint and motion to stop the law from going into effect. The NCLA is representing five California-board certified doctors in Høeg, et al. v. Newsom, et al.who are suing the state’s medical board members as well as Governor Gavin Newsom and California Attorney General Rob Bonta. In an NCLA press release, one of the plaintiffs writes that AB 2098 is “unconstitutional,” amounting to a “gag order” on physicians.
Last week, the ACLU of Northern California agreed in a new proposed amici brief in support of Høeg’s plaintiffs. “In an effort to stop Covid misinformation,” the group tweeted, “California has made healthcare worse.” They say the law isn’t needed, and call on the courts to “stop this First Amendment violation.”
In California, recent efforts to legislate scientific truth have proven complicated. This new lawsuit is the anti-vaccine movement’s latest effort to protect doctors who disseminate false information about Covid. Just thislast week, the Center for Media and Democracy reported that the NCLA also recently become involved in another lawsuit, in which signatories of the Great Barrington Declaration––an influential letter released in October 2020 that argued governments should forgo large-scale public health precautions––are suing members of the Biden administration over their efforts to combat online misinformation.
Now, in Høeg, et al., prominent members of the anti-vaccine movement, backed by the NCLA, are taking aim at state medical boards––which have, for better or worse, been tasked with the job of disciplining doctors who spread misinformation. Many public health advocates have been putting pressure on the boards for months. Nick Sawyer, a California emergency medical physician, accused the boards late last year of “not doing their job of protecting public health.” Sawyer founded the grassroots organization No License for Disinformation to encourage people to file complaints when appropriate. The group has pushed the Federation of State Medical Boards (FSMB) to delicense doctors who peddle Covid disinformation.
California lawmakers are in a bind. They have to take action on Covid misinformation spread by physicians. In this sense, AB 2098 is a well-meaning bill, but it may not do what lawmakers hope. The unfortunate reality is that most people who are taken in by vaccine misinformation don’t get their information from their own doctors, first––they get it from their communities, in conversations online, from what they see circulating in the media and on television. The problems thus originate in some of the big personalities and medical influencers who have influence, money, power, and, perhaps most importantly, platforms. These doctors and scientists have the ability to capture the attention of the public long before audiences have the chance to speak with doctors in their own community.
Without curbing what these larger influencers can say, the problem of Covid misinformation will continue to fester. As such, legislating doctor-patient conversations runs the risk of doing not much of anything. The law ––if it can even get out the door––simply may not prove successful.
Meanwhile, the movement now has cause to drum up even more attention to itself, and to its status as a victim of “censorship”. These doctors and others argue that AB 2098 violates their First Amendment rights. Some more mainstream and conservative public health experts like Dr. Leana Wen have agreed, calling the law “a bad idea,” and arguing that it will have a chilling effect on physicians. Some legal experts assert that these disciplinary penalties for physicians are constitutional. Carl Coleman, a scholar specializing in the implications of medical treatment and public health, writes that penalties “should survive constitutional scrutiny… if a board can establish that a physician has disseminated information that she knows to be false or with reckless disregard as to its truthfulness.”
Governor Newsom has clarified that AB 2098 is “narrowly tailored to apply” to “egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care.” The law’s language also does not relate to any speech outside of direct patient-physician discussions. Høeg still believes, however, that AB 2098 will disrupt “the sacred doctor-patient relationship.” The ACLU of Northern California agrees that the law “interferes with the doctor-patient relationship by overly restricting doctors’ speech.”
Sawyer told me that this is fundamentally an issue of the patient’s informed consent, not the physician’s free speech. Offending physicians–those “claiming the vaccines are killing more people than Covid, or prescribing hydroxychloroquine or ivermectin even at this point, when the overwhelming evidence shows they aren’t efficacious for Covid”––are violating their patients’ right to informed consent. By “failing to inform patients about the highest quality, most up-to-date clinical studies,” licensed physicians prescribing alternative treatments for Covid “put patients at risk. The prescribing of ivermectin or hydroxychloroquine is not speech. It’s action.”
These are the instances in which Sawyer and other proponents of AB 2098 have insisted that the medical boards must intervene. Many experts worry, however, that the boards are simply not equipped to deal with the problem. In December 2021, the FSMB released findings from a survey which found that 67 percent of medical boards had seen an increase in complaints related to licensee dissemination of Covid misinformation that year. Humayun Chaudhry, the president of the federation, said that the “stagging” figure was a “sign of how widespread the issue has become.”
This February, Dr. Arthur Caplan, a bioethics professor at NYU School of Medicine, said that “medical boards were not built for this fight.” Peter Hotez––the Nobel-Prize winning physician-scientist, global health expert, and co-inventor of the patent-free Covid vaccine, Corbevax––agrees.d. Hotez told me that the “American Board of Medical Specialties is struggling with how to respond to physicians who are weaponizing health communications by disseminating deliberately misleading information.”
Sawyer has been witness to two years of inaction on the part of the medical boards. “In July of 2020,” Sawyer stated in his 2022 testimony to the California assembly, “America’s Frontline Doctors [a right-wing anti-vaccine organization led by Dr. Simone Gold] held a press conference in what can only be called the most prolific public showing of disinformation to date. Unfortunately, there was no response by the medical community, the medical boards, or the established institutions for an entire year.”
In July 2021, however, the Federation of State Medical Boards (FSMB) did approve a medical misinformation policy, announcing that physicians who spread Covid misinformation were at risk of losing their license. At the time, it was up to the 70 state member boards to “amend or adopt their own own policies.” Early on, at least 15 state medical boards adopted their own version of the FSMB statement, according to NPR. And some boards did begin disciplining physicians. GOP lawmakers quickly responded to the FSMB’s misinformation policy by proposing or passing laws “aimed at restricting the medical board’s authority” on Covid.
In the intervening months, Sawyer himself fielded predictable criticism from the movement. In a more publicized encounter, Kristina Lawson, president of the California medical board, was stalked and then accosted by members of AFLD––the group that Sawyer had originally hoped medical boards would take action against, in the summer of 2020. In an AFLD video called “Lawson’s Hunt,” Lawson is called a “California bureaucrat leading a sinister hunt to silence and terminate doctors from the frontlines.” In the 21-minute video, Lawson is depicted as a “whip-wielding Nazi.” The comparison is a tried-and-true anti-vaccine tactic.
Sawyer was not surprised, then, that when Governor Newsom finally signed AB 2098 last month, the backlash was swift––and strong. Some warned that anti-vaccine leaders were using the law’s passage as another opportunity to “grandstand, promote more [Covid] misinformation, turn the reprimanded doctors into martyrs for free speech, and, above all, fundraise.” Sawyer, meanwhile, told Physicians for Human Rights in an email: “This bill touched a big nerve for [the movement]. One out of every six practicing physicians in the U.S. today holds a California medical license. And loss of license in one state can be grounds for loss of license in another state.”
Since September 30, he told me, the “right-wing apparatus, which these doctors are part and parcel to,” has “gone crazy” over it.