This article about a lawsuit against California’s new law, AB2098, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively about vaccination’s social and legal policies in law journals. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
On September 30, 2022, California’s Governor Gavin Newsom signed into law AB2098, a bill that tells the medical board that misinformation and disinformation given to a patient as treatment or advice is “unprofessional conduct” worthy of sanction.
As a reminder, misinformation about COVID-19 is a real problem in the pandemic, leading to low vaccination rates that increased deaths and harm, and people using fake treatments against COVID-19.
On October 4, 2022, the first lawsuit against AB2098 was filed, brought in the name of two doctors with a history of COVID-19 misinformation – including promoting unsupported treatment like ivermectin and hydroxychloroquine and deterring people from vaccinating. The doctors are represented by attorneys from the conservative organization Liberty Justice Center.
Although there are some doubts and uncertainties, the law should probably survive judicial review – and these doctors are likely typical of the kind of misinformer that made the law needed, and several of the claims they make are demonstrably untrue, which works in support of the law.
All about California AB2098
The text of AB2098 can be found here. After declaring the purposes of the bill, the law’s operational provision states that:
“2270.
(a) It shall constitute unprofessional conduct for a physician and surgeon 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.
(b) For purposes of this section, the following definitions shall apply:
(1) ‘Board’ means the Medical Board of California or the Osteopathic Medical Board of California, as applicable.
(2) ‘Disinformation’ means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.
(3) ‘Disseminate’ means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.
(4) ‘Misinformation’ means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.
(5) ‘Physician and surgeon’ means a person licensed by the Medical Board of California or the Osteopathic Medical Board of California under Chapter 5 (commencing with Section 2000).”
A few comments are in order. First, the law only applies to giving information to a patient for treatment or advice (§2270(b)(3) defines “disseminate” to mean that). It does not apply to public statements by the doctors in question.
Second, the law’s definition of “misinformation” is problematic. The lawsuit itself criticizes the definition, but in so doing makes its own mistakes. My own view is that the law should be understood as asserting: “Misinformation is information that is false and we know it’s false because it’s contradicted by contemporary scientific consensus and is contrary to the standard of care”.
The sentence as written in the law does not make sense without “and is,” since it seems to read, nonsensically, that the scientific consensus is against the standard of care. On the other hand, understanding the law as I have suggested does make sense, and is a very small change. Courts can adopt this reading using a well-established, albeit rarely used, rule of statutory interpretation called the absurdity doctrine, according to which, if the plain language of the statute leads to absurd results, the courts can deviate.
The law also includes disinformation, which is even less of a grey area. I am focusing my legal analysis on misinformation, though, since that’s the trickier case – intentional fraud is an area long regulated.
Third, I do not think that the law actually changes the California Medical Board’s (the board) authority. As Philip Pizzon, David Spiegel, and Michelle M. Mello explained in a viewpoint in JAMA, there is a good argument that sharing misinformation is already captured by “unprofessional conduct,” and boards can already act on it. I also agree with Dr. Mello’s statements on Twitter that the new law serves an expressive function, sending a message both to the board that the legislature wants them to address this, and to doctors that promoting COVID-19 disinformation and misinformation can have disciplinary consequences.
Given that, it’s important to remember that disciplining misinforming and disinforming doctors were likely already within the board’s power. In fact, one of the complainants in this new complaint, Dr. Mark McDonald, was already being investigated by the board for COVID-19 misinformation before the new law, as the complaint explains (lawsuits typically open with filing a complaint which sets out the claims of those bringing the lawsuit).
Fourth, medical boards are not known for their over-aggressive enforcement of discipline on their fellow doctors. In fact, medical boards often move slowly and may be over-lenient. The claims that this will lead the medical board to suddenly start disciplining scores of doctors over statements around areas of uncertainty related to COVID-19 are in tension with the content of the law and past practice.
As summarized by Orac, anti-vaccine activists reacted strongly to AB2098, obviously seeing it as a threat. A lawsuit was expected, and although I initially wondered about standing, there is some support in the jurisprudence for lawsuits before enforcement happens when the threat of enforcement may have a chilling effect on speech, so for the moment, I will assume the doctors have a personal stake – though in the discussion of the lawsuit I’ll point to some problems with that.
The First Amendment and Board discipline of physician statements
The question as to what degree the First Amendment limits the ability of the government to regulate medical advice is subject to a large, and confusing, jurisprudence. Several things, though, are clear.
First, boards have historically regulated medical practice, including standards for giving medical advice.
Second, there is a large jurisprudence that upheld the regulation of medical speech, though it may be insufficiently thought out, and it has some internal contradictions. This discussion attempts to explain this complex jurisprudence and set out why, arguably, courts should not apply the highest standard of review – strict scrutiny (which only upholds regulation of speech if it’s narrowly tailored to meet a compelling state interest – a very demanding standard, that most laws will fail) – to AB2098.
The Supreme Court has, historically, applied standards that are less than strict scrutiny to some kinds of speech that include professional speech. The complaint cites language from a 2018 Supreme court case – NIFLA v. Becerra – that said that “[s]peech is not unprotected merely because it is uttered by ‘professionals.’”
But that use is problematic, for a number of reasons. Justice Clarence Thomas himself in Becerra went on after saying this to uphold at least two previous instances in which the court applied a lesser standard to professional speech – where professionals are required to disclose factual noncontroversial information, and when conduct incidentally involves speech (pp. 8-9 of his decision), giving as an example for the latter laws designed to promote informed consent – and misinformation undermines informed consent: misled patients are not informed, they are misled. Further, Justice Thomas acknowledged that there might be reasons to treat professional speech differently – and then declines to apply strict scrutiny and applies intermediate scrutiny instead, a lesser standard (p. 14).
So treating NIFLA v. Becerra as requiring the application of strict scrutiny to the regulation of medical (professional) speech, is problematic — even Justice Thomas did not apply it in the case and acknowledged the exception to using strict scrutiny.
There are several instances where federal courts of appeals reviewed other regulations of physician speech. In 2002, the Ninth Circuit struck down a federal policy threatening a doctor with revocation of prescription authority if they recommended medical marijuana to patients.
The court used heightened scrutiny, not strict scrutiny. In 2017, the 11th Circuit struck down a federal law prohibiting physicians from discussing gun ownership and safety with patients. Here, the court rejected the lowest level of scrutiny – rational basis review – but was not clear what other standard it is applying, since it concluded that the law cannot survive even heightened scrutiny, let alone strict.
In both those cases, at least part of the court’s reasoning was that the information delivered was not going to lead to bad practices or deviation from the standard of care.
A very different result came up in the case of sexual orientation conversion therapy, designed to “redirect same-sex sexual desires towards people of a different sex,” a therapy with no evidence that it’s effective, that has been disavowed by the American Academy of Child and Adolescence Psychiatry, and that is highly abusive since it can cause emotional trauma.
Multiple courts have upheld laws banning conversion therapy – with different approaches. The Ninth Circuit saw it as conduct because although it involves speech, it’s treatment. The Third Circuit applied a lower level of scrutiny to professional speech. But both circuit courts upheld the bans, suggesting that limiting non-evidence-based speech can survive scrutiny.
And many states have laws imposing requirements on abortion that include providing things like ultrasound, requiring physicians to follow them, and those have been upheld as not violating the First Amendment. In contrast, courts were not willing to uphold conversion therapy, considered bad practice.
The total of this jurisprudence suggests that there is a good argument that courts will uphold speech regulating physicians’ statements to their patients – as opposed to regulation of public physician statements, where the First Amendment may be stronger – though even there may be cases where it’s possible to regulate.
Such speech is likely to be subject to heightened scrutiny, not strict scrutiny, though there are real areas of uncertainty in the jurisprudence. Historically, such regulation that matched the standard of care has been upheld by multiple courts of appeal, though regulation that went against the prevailing standards had been struck down. Note that courts also upheld regulations that directly required or directly prohibited speech. This is a higher level of coercion than regulation that simply gives the board the ability to act in appropriate cases.
If the law is upheld to strict scrutiny, it would be harder for it to survive, though not impossible. The state’s attorneys can likely make a good case that misinformation and disinformation have led to many deaths during the COVID-19 pandemic, for example, higher vaccination rates could have prevented hundreds of thousands of deaths in the United States, and misinformation deterring vaccination undermined that – and misinformation from doctors can be more credible than for many people. Saving lives is a compelling interest. And the law does no more than add specificity to the board’s authority, emphasizing that the board should act against misinformation – something the complaint shows it already started doing. That is a pretty narrow step.
Third, false information is less protected (if it’s protected at all). There are a number of sources on that. All states regulate, for example, fraud and misrepresentation by doctors or lawyers, and that has been upheld.
In one of the leading Supreme Court cases for regulating commercial speech, Central Hudson Gas and Electric Corp v. Public Service Commission (1980), the Supreme Court said clearly that the “government may ban forms of communication more likely to deceive the public than to inform it,” setting a test under which false speech is not protected at all. All states have consumer protection laws that prohibit, among other things, false advertising.
As explained by Professor Jennifer Pomeranz, in an article on the topic:
In both Central Hudson and Zauderer, the Court indicated that deceptive speech is subject to regulation. At this point, the Court has not overruled this area of First Amendment jurisprudence.
So to the extent that AB2098 applies to false information, it should certainly be upheld. If the law stopped the definition after “false”, it would have been on very solid grounds. Challengers focus on the “scientific consensus” and “standard of care” language to argue that the law enforces one set of facts over another, but that’s problematic.
The focus of what is misinformation is on falsity. But how do courts know falsity in situations of complex science? By using the scientific consensus. Nor is using the standard of care – including for assessing speech – unusual: one common approach to assessing whether doctors failed to provide informed consent is to look at what physicians usually disclose, and use that to assess information – and to my knowledge, no court found that standard – known as the “physician standard” for informed consent – unconstitutional. This approach is used by about half of the states in the United States.
The Case – plaintiffs and arguments
The case was brought in the name of two doctors, Dr. Mark McDonald and Dr. Jeff Barke. Dr. McDonald, according to the complaint, has been making statements about potential harm to children from closures, and opposing masks for children and adults – things unlikely to be regulated by AB2098. More on point, he has also been recommending unproven treatments like ivermectin and hydroxychloroquine to treat COVID-19, and there is at least a real possibility he has recommended these to his patients.
The language used by the complaints for both doctors on this point is as follows:
Dr. McDonald has also supported the use of medications such as ivermectin and hydroxychloroquine as options to treat COVID-19, pre-existing drugs long approved as safe and effective by the Food and Drug Administration. While the use of such medications to treat COVID-19 is controversial, a number of studies have found positive results using them to treat the disease.
Dr. McDonald, again more on point, has also objected to COVID-19 vaccines, especially for children, in the language of the complaint: “pointing to a lack of evidence that these brand-new drugs had been proven sufficiently safe and effective to be recommended, and in many cases mandated, for essentially the entire American public.” This is also on point because there’s a reasonable chance Dr. McDonald has discouraged his patients from getting the vaccines.
Apparently, the medical board has investigated Dr. McDonald previously based on a complaint by an unnamed patient (obviously, we cannot know if this was, in fact, a patient, but California law allows anyone to complain and allows complainants to ask for anonymity). The investigation was about his public statements about COVID-19, including his statement that he treats it with unproven drugs like ivermectin, and according to the complaint is still ongoing.
Note that the investigation preceded AB2098, reinforcing the point that the board did not need the law to act against doctors promoting COVID-19 misinformation – even beyond the doctor/patient relationship, let alone in the clearly medical context of patient advice and treatment.
Dr. Jeff Barke does not appear to be under investigation but holds similar beliefs to Dr. McDonald.
The question of masking children and adults and keeping children home is likely not directly related to AB 2098 – this is more of a public policy than patient treatment and advice issues. But the statements about COVID-19 treatments and COVID-19 vaccines are directly on point.
There is extensive evidence that there are no benefits to using ivermectin for COVID-19. While there are studies that appear to support it, many of them have been found deeply flawed or even fraudulent. The FDA recommends against treating COVID-19 with ivermectin. So does Merck, the pharmaceutical company manufacturing it, which would stand to benefit from such use. At this point, anyone recommending ivermectin for treating COVID-19 is acting against the data, based on evidence that is unreliable, and potentially harming their patients. This is clear misinformation.
Similarly, although initially hydroxychloroquine was thought to have promise for COVID-19, well-done studies found no benefit to it. FDA recommends against using it since it has real risks. In fact, there are growing concerns about scientific misconduct – even fraud – in the initial studies promoting the drug. Recommending it to patients on this background is misleading.
Again, this is not a borderline issue. Saying there are some studies that show benefits for ivermectin and hydroxychloroquine is not, by itself, false. But saying that without pointing out that many of these studies are deeply flawed, potentially fraudulent, and that there is a scientific consensus against treating COVID-19 with those drugs is highly misleading. As a reminder, omissions can give rise to claims of intentional misrepresentation, if they turn a statement misleading, and there is no barrier to the board acting against them.
Further, if there is any area in which the line between speech and conduct blurs it is in giving patients medication. If either of these doctors prescribed ivermectin and hydroxychloroquine, this is not a First Amendment question: they are acting unprofessionally, below the standard of care, and the board can discipline them. Even if they’re not prescribing, but just telling patients to get these drugs, well, those may be words, but the line between such directional words and treatment is very, very blurry. Regulating treatment to protect patients from negligent care is exactly what medical boards are for.
In relation to vaccines, the language in the complaint is cautious, but still, arguably, falls into misinformation. The complaint says each doctor that they “raised concerns about the new vaccines developed to combat COVID-19, pointing to a lack of evidence that these brand-new drugs had been proven sufficiently safe and effective to be recommended, and in many cases mandated, for essentially the entire American public.”
The problem for the plaintiffs is that there is abundant information from all around the world on the safety of COVID-19 vaccines. While the vaccines are not as effective in preventing infection and transmission as we might wish (though there is some effectiveness), abundant – and growing – evidence shows that they reduce hospitalizations, severe harm, and deaths from COVID-19.
And multiple expert committees across the globe recommended them. These doctors can certainly publicly disagree with these conclusions, and others can counter their claims; but if they tell their patients not to vaccinate, and make the statements above without telling the patients that expert bodies around the world disagree and a large literature provides evidence, they are misleading those patients, and it’s misinformation. Further, here, too, recommending a cause of action is not just giving an opinion, and the line here between speech and conduct – actual treatment – is blurry.
These should be easy cases on which to uphold the law.
The complaint, which is well and competently written, raises two main arguments here. First, it argues that the law should be held to strict scrutiny, citing NIFLA v. Becerra, discussed above. It cites the language in the case I repeated above, which says that professional speech should not be treated differently. But as explained, that language is not what the Supreme Court itself did in the case; the court applied heightened scrutiny and acknowledged different treatment of professional speech in several contexts – one, speech incidental to conduct (here treatment) may even apply to the two examples of misinformation discussed above.
Second, the complaint argues that the law is “vague”. But the complaint itself shows clearly that the law is anything but — the doctors in question know precisely which statements of theirs may fall into “misinformation” here. The preamble of the law itself, and the discussions leading to it, made clear what kind of statements it is designed to address – and these plaintiffs know it.
The law is likely as clear as it can be, given the ability of promoters of misinformation to reword statements. The law builds in guardrails that match those used in other areas – like litigation for medical malpractice and informed consent, traditional areas of litigation that would cover bad medical advice – by referring to the scientific consensus and the standard of care. I acknowledge that plaintiffs are right that the law does not define which particular statements would be misinformation in a specific case, but that is likely impossible, and an area where litigation after the case can correct errors in board discretion – as with other disciplinary actions.
Finally, at least arguably, Dr. McDonald – and potentially Dr. Barke – should not have the standing to bring this case. United States courts do not adjudicate abstract cases; plaintiffs have to show that they have the standing to go ahead with their case. Standing has three requirements: an injury-in-fact, causation between the act of the defendant and the injury, and the injury can be redressed – made better – by a decision of the court.
I assumed going in that the fact that there was no enforcement action against them should not negate standing, and I still do. The threat of enforcement should be enough to create a personal stake.
But it’s not clear that a threat of enforcement depends on AB2098. Dr. McDonald’s story shows that AB2098 did not really change the situation of doctors promoting misinformation. The board opened an investigation against Dr. McDonald on its existing powers substantially before AB2098. If Dr. McDonald challenged that action in court, that is not mentioned, and I assume he is waiting for the result.
If the board can act on misinformation without AB2098, how does the new law create an injury to plaintiffs? How does it make their situation worse? That is never explained in the complaint. Without an injury from the law, or if striking down the law would not remedy the problem for defendants, defendants can still face action under the board’s general powers.
Conclusion on AB2098 lawsuit
The jurisprudence on the First Amendment and regulating professional speech is confusing, and it’s not clear that the court deciding the case would uphold AB2098 under it. But there is extensive support for states’ ability to regulate and impose consequences for misleading information, and there is at least some support for states’ ability to regulate doctor speech when that speech violates the standard of care, or when the standard of care is not undermined, in the conversion therapy and the abortion cases.
The cases in this complaint support upholding the law (finding it constitutional), first because these are clearly cases where the doctors want to promote misinformation – by recommending unsupported treatments, apparently without disclosing the real state of the research about them, and by deterring patients from vaccinating. Further, the complaint itself shows that there are likely reasons to reject the case for lack of standing, since the board can act even without AB2098, and there is, as yet, no indication that AB2098 would be used in a way that goes against the First Amendment more than other board powers do.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
