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California’s Chilling Attempt To Muzzle Physician Speech

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Last fall, Gavin Newsom signed into law a bizarre and disturbing requirement that would charge California physicians with professional misconduct and possible loss of their license if they were to question the medical community’s consensus opinions regarding COVID-19. The motivation for this law was the assertion that healthcare providers were some of the most dangerous propagators of “misinformation” and “disinformation” about COVID. No source other than “major news outlets” was credited for the impetus for creating a new law that effectively muzzled physicians from expressing any opinion that didn’t parrot back what government wanted them to say.

But like so many California laws, AB 2098 is vague, poorly written, and represents gross government overreach. Just how badly was it written? The law requires that physicians disseminate no information outside of “contemporary scientific consensus.” However, the law provides no definition for this term, which in any case is almost indefinable during a rapidly evolving health crisis when research findings, interpretations, and opinions change quickly and significantly.

This suggests that the law violates the due process rights of physicians, because it does not provide a specific standard that physicians can reference when trying to abide by the law. And the fact that the law conflates physicians’ speech with their conduct suggests it also violates their First Amendment rights. As it is written, there is nothing within the law to prevent the California state government from initiating a professional misconduct case against any physician if it doesn’t like what the physician is alleged to have said or written about COVID.

But the harm of this law goes beyond its chilling constitutional infringements on physicians. Questioning the status quo is the foundation of all scientific inquiry, and muzzling that effort would substantially retard medical progress and leave in place potentially harmful medical orthodoxy. Consider the long-standing consensus regarding heart disease and diet. For decades, the American medical community recommended a low-fat diet to combat a supposed new epidemic of heart disease, basing its advise on research conducted by Ancel Keys, an epidemiologist at the University of Minnesota. Keys studied data from seven countries in the 1950s and 1960s and concluded that such a dietary change would significantly reduce heart disease.

This diet recommendation was accepted as consensus scientific knowledge and was widely recommended to Americans. But the diet was flawed; clinical trials continued to provide no evidence in support of low-fat diets. It took years of research effort and pushback to overturn a diet dogma that was, according to some researchers, actually contributing to mortality and declining health. The first clue was that the incidence of coronary disease, and coronary disease deaths, in the US actually rose in the wake of this diet consensus. Subsequent research has found a range of factors for understanding coronary disease risk, including obesity, high blood pressure, rising consumption of refined sugar and other processed foods, the importance of aerobic exercise, and a more nuanced interpretation of blood cholesterol levels.  

The recommendation for the original diet—one that became consensus—was premature. Keys included only six countries in his original study out of a possible 22 countries that could have been studied. France, a country where people consume a diet high in saturated fat but have a relatively low incidence of heart disease, was excluded, and some researchers believe it was omitted because data from France would not have supported Keys’s hypothesis.

It wasn’t until after one of Keys’s collaborators passed away, around 10 years ago, that unpublished research performed by the two men in the late 1960s and early 1970s was discovered in his home—research that in fact refuted their diet recommendation. Imagine the continued harmful effects—sometimes fatal—had medical professionals not felt able to question this “scientific contemporary consensus.”

Shortly after California’s law took effect last year, a lawsuit was filed by a few California physicians, and a district court judge issued a preliminary injunction against its implementation. Late last month, a motion for summary judgment was made to permanently block the law from taking effect.

Just two days after the motion for summary judgment was submitted, Gavin Newsom signed Assembly Bill 815, which reauthorizes California’s medical board. This is noteworthy because within AB 815 is a clause that eliminates AB 2098. Just like that, the people who wanted to muzzle California physicians eliminate the law once it becomes increasingly apparent they are going to lose in court. And no one—not Newsom, not State Senator Richard Roth, the author of AB 815, not anyone within government—has said anything about the mystery clause that deletes AB 2098.

Roth indicates he has no idea where the clause eliminating AB 2098 came from. He noted that it may have come through committee leadership or the governor’s office, but at the end of the day, it just seemed to have appeared in the new bill.

The stealth elimination of the AB 2098 is disturbing, because it means the government is unwilling to acknowledge that it was terrible legislation that would have trampled individual constitutional rights. To understand the danger of the legislation, note that the bill stated, “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.”

The statement is patently clear, but it seemed to mean something remarkably different to Gavin Newsom when he signed the original legislation in 2022, when he argued that it would “apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”

I have no idea how one can interpret the bill’s language in the way that Newsom did, and we will never know, because as of now, it is as if AB 2098 never existed. If it weren’t for a handful of physicians who fought for their rights, AB 2098 would very much exist today. And it would be applied according to the text of the bill, not what Newsom advertised when he signed it.

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