California’s Covid Misinformation Law Is Entangled in Lawsuits, Conflicting Rulings

Yves here. Despite the murkiness of the California Covid censorship law, one of the few areas it would seem to cover on a clear-cut basis is threatening the licenses of doctors who recommend or worse prescribe ivermectin. While doubts about its efficacy are reasonable, ivermectin has a better safety profile than aspirin, so depicting it as a health hazard is Big Pharma propaganda. And in a textbook case of class hypocrisy, IM Doc reports that the billionaires and other very rich that spend part of the year in his area nearly all demand it.

Needless to say, this law also show the Democrats’ true authoritarian colors. Put it another way, when you’ve lost Leana Wen…..

By Bernard J. Wolfson, Senior Correspondent and columnist for California Healthline and previously was the business editor of the Orange County Register and its health care reporter, where he was a Pulitzer Prize finalist, along with two Register colleagues, for a groundbreaking report on cost vs. quality at 30 local hospitals. Produced by Kaiser Health News

Gov. Gavin Newsom may have been prescient when he acknowledged free speech concerns as he signed California’s covid misinformation bill last fall. In a message to lawmakers, the governor warned of “the chilling effect other potential laws may have” on the ability of doctors to speak frankly with patients but expressed confidence that the one he was signing did not cross that line.

Yet the law — meant to discipline doctors who give patients false information about covid-19 — is now in legal limbo after two federal judges issued conflicting rulings in recent lawsuits that say it violates free speech and is too vague for doctors to know what it bars them from telling patients.

In two of the lawsuits, Senior U.S. District Judge William Shubb in Sacramento issued a temporary halt on enforcing the law, but it applies only to the plaintiffs in those cases. Shubb said the law was “unconstitutionally vague,” in part because it “fails to provide a person of ordinary intelligence fair notice of what is prohibited.” His ruling last month clashed with one handed down in Santa Ana in December; in that case, U.S. District Judge Fred Slaughter refused to halt the law and said it was “likely to promote the health and safety of California covid-19 patients.”

The legal fight in the nation’s most populous state is to some extent a perpetuation of the pandemic-era tussle pitting supporters of public health guidelines against groups and individuals who resisted masking orders, school shutdowns, and vaccine mandates.

California’s covid misinformation law, which took effect Jan. 1, is being challenged by vaccine skeptics and civil liberties groups. Among those suing to get the law declared unconstitutional is a group founded by Robert F. Kennedy Jr., who has questioned the science and safety of vaccines for years.

But doubts about the law are not confined to those who have battled the scientific mainstream.

Dr. Leana Wen, a health policy professor at George Washington University who previously served as president of Planned Parenthood and as Baltimore’s health commissioner, wrote in an op-ed a few weeks before Newsom signed the law that it would exert “a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care.”

The Northern California affiliate of the American Civil Liberties Union has weighed inagainst the law on free speech grounds, though the national organization has affirmedthe constitutionality of covid vaccine mandates.

“If doctors are scared of losing their licenses for giving advice that they think is helpful and appropriate, but they don’t quite know what the law means, they will be less likely to speak openly and frankly with their patients,” said Hannah Kieschnick, an attorney with the ACLU of Northern California.

The law establishes that doctors who give false information about covid to patients are engaging in unprofessional conduct, which could subject them to discipline by the Medical Board of California or the Osteopathic Medical Board of California.

Proponents of the law sought to crack down on what they believe are the most clear-cut cases: Doctors who tout treatments such as ivermectin, an anti-parasitic agent that is unproven as a covid treatment and can be dangerous; who exaggerate the risk of getting vaccinated compared with the dangers of the disease; or who spread unfounded theories about the vaccines, including that they can cause infertility or harm DNA.

But the law lacks such specifics, defining misinformation only as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

Michelle Mello, a professor of law and health policy at Stanford University, said the wording is confusing.

“On a matter like covid, science is changing all the time, so what does it mean to say there is scientific consensus?” she asked. “To me, there are lots of examples of statements that clearly, with no vagueness involved, meet the definition of the kind of conduct that the legislature was going after. The problem is that there are all kinds of other hypothetical things that people can say that don’t clearly violate it.”

Dr. Christine Cassel, a professor of medicine at the University of California-San Francisco, said she expects the law to be applied only in the most flagrant cases. “I trust scientists enough to know where there’s a legitimate dispute,” she said.

Cassel’s view mirrors Newsom’s rationale for signing the legislation despite his awareness of potential free speech concerns. “I am confident,” he wrote in his message to lawmakers, “that discussing emerging ideas or treatments including the subsequent risks and benefits does not constitute misinformation or disinformation under this bill’s criteria.”

Plaintiffs in the Santa Ana case, two doctors who have sometimes diverged from public health guidelines, appealed Slaughter’s ruling allowing the law to stand. The case has been combined in the 9th U.S. Circuit Court of Appeals with another case in which a San Diego judge declined to rule on a similar request to temporarily halt the law.

Newsom spokesperson Brandon Richards said in early February that the administration would not appeal the two Sacramento cases in which Shubb issued the narrow injunction. The plaintiffs’ lawyers had expected the state to appeal the decision, thinking all four lawsuits would then be decided by the appeals court, providing greater clarity for all parties.

Richard Jaffe, lead attorney in one of the Sacramento cases — brought by a doctor, Kennedy’s Children’s Health Defense, and a group called Physicians for Informed Consent — said Newsom’s decision not to appeal is “just going to increase the level of chaos in terms of who the law applies to.”

But the Newsom administration has decided to wait for the appeals court to rule on the other two judges’ decisions that left the law intact for now.

Jenin Younes, a lawyer with the New Civil Liberties Alliance who is lead counsel in the other Sacramento case in which Shubb issued his injunction, said Newsom may be calculating that “you’re in a stronger position going up on a win than on a loss.”

A victory for Newsom in the appeals court, Jaffe and others said, could dampen the impact of the two Sacramento cases.

Opponents of California’s covid misinformation law question why it is needed at all, since the medical boards already have authority to discipline doctors for unprofessional conduct. Yet only about 3% of the nearly 90,000 complaints the Medical Board of California received over a decade resulted in doctors being disciplined, according to a 2021 investigation by the Los Angeles Times.

That could be good news for doctors who worry the new law could constrain their ability to advise patients.

“I don’t see medical boards being particularly vigorous in policing physicians’ competence in general,” said Stanford’s Mello. “You have to be really bad to get their attention.”

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  1. ambrit

    One quote jumped out at me: ““I trust scientists enough to know where there’s a legitimate dispute,” she [Dr. Christine Cassel] said.
    That “fact” has been amply disproven by the egregious conduct of the “communicators” from the CDC and WHO during this Pandemic. The most obvious example being Dr. Fauci and his “Noble Lie” about masking at the beginning of the Pandemic. We will never know how many innocent lives were lost by that one example of “science communications” alone. If there is a H—, Fauci and his fellow travelers are assured of executive level ’employment’ down there.
    The other howler is this one: ““I don’t see medical boards being particularly vigorous in policing physicians’ competence in general,” said Stanford’s Mello. “You have to be really bad to get their attention.”
    To quibble, this law is not about “competence” but about Political Correctness. Some doctors will feel the wrath of “The Establishment” for not following the “Officially Approved Narrative.” I never imagined that the formal American Police State would be implemented upon medically based rationales.
    G== save The Tsar!

    1. hk

      Plus, if there are actual legal cases, scientists or science won’t be determining what is real information and what isn’t. It’ll be lawyers and what they think science is/should be.

  2. .human

    But the law lacks such specifics, defining misinformation only as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

    This is just another example that leaves lobbyists rolling on the floor laughing at their ability to encourage divisive, high-falutin’ sounding legislation that will leave litigants, courts, and of course lawyers busy for years to come.

  3. Telee

    The NYT just came out with an article favoring the natural selection opinion. At the same time they completely ignore the testimony of Dr. Robert Redfield who clearly stated facts that support his leaning toward the idea of lab leak. None of these points were mentioned by the NYT. The initial infections were in September. Not from the wet market. A Chinese virologist and some reporters thought it was a lab leak are all rotting in prison. In September 3 highly irregular things were done at the Wuhan lab. First all sequence data was scrubbed, second the control of the lab was given to the Chinese military and finally, the entire ventilation system was redone.
    The Wuhan lab was working on gain of function with grant money coming from NAID, DOD, the State Department and NIH. First they succeeded in selecting out SARS viruses that would bind to the ACE2 receptor because binding to our cell walls is the first step necessary for infection. In 2019 the Wuhan lab applied for a grant to insert the furin cleavage at the junction of the S1 and S2 strands of the viral RNA. The furin cleavage site is present in humans as part of the Epithelia sodium channel system involved in regulating salt concentration of our epithelia cells. This is the key to allow necessary entry into our cells. Then a year the SARS-COVID-19 appears and has the FCS inserted at the junction of the S1 and S2 RNA strands. Now they are trying to tell us that natural selection yielded the exact same properties as those that the Wuhan lab wanted to create!
    I recently had an appointment at a well known and respected medical center with an oncologist. Upon telling him that I thought the virus was man made his reply was “absolutely.” He said he knew of no scientist or doctor at the medical center who didn’t think it was man made but were afraid to express this publicly because they were afraid of being punished by loss of grants and other factors.

    This paper published in May of 2022 presents meaningful information supporting their view that the lab leak hypothesis should be considered and investigated. You are remiss if you don’t look at this paper.

    Of course it was decided early on by Fauci and NIH direction Frances Collins that natural selection should be pushed and that those with the other opinion were merely conspiracy theorist. In fact scientists who initially supported lab leak were called by Fauci and Collins and days later publicly did a 180 shift from their initial position. Then they wrote an article published in Nature and the Lancet that supported natural selection and called those with the other opinion conspiracy theorist. This language has nothing to do with scientific norms. A few months later they were awarded aa 9 million dollar grant by Fauci.

    The NYT again is supporting the establishment and circling the wagons. Shameful!

    1. Jeff

      NYT resembles The National Enquirer from the 1980s, while actual news is now reported by independent journalists.

      I put the LATimes in the same bucket of incompetence, dishonesty and woke nonsense.

  4. Californiano

    Newsom is a greasy opportunist. Notice how his plan to tax obscene oil company profits was suddenly replaced with a special commision which he controls to allocate penalties? Notice how effective the PUC that he appoints has been at controlling PG&E and protecting customers? /sarc

    His change of plans might have something to do with the Getty Oil Scions financing his career.

    Newsom also dramatically changed his proposal: He had earlier suggested that the Legislature would set the amount of the profit cap. Now his plan would punt the decision to energy regulators. (That he appoints).

    The governor had originally called the penalty a “tax” on the windfall profits of oil companies. Last fall he pivoted to calling his proposal a “price gouging penalty,” a move with significant implications: Creating a tax requires approval from two-thirds of lawmakers, while a penalty requires only a majority.

    1. Jeff

      Newsom is pelosi’s nephew. What did you expect? Just another con man with a smile and a shoe shine.

  5. Alan Roxdale

    Is it really legal to prevent doctors from prescribing treatments? For FDI approved drugs? I get the impression this is a metastisization of laws around abortion pills, hopping species from red to blue states. That’s enough disease as metaphor for today.

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