The statute defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” and disinformation as “misinformation that is deliberately disseminated with malicious intent or an intent to mislead.”
In his signing message, Newsom said he was concerned that similar laws could have a “chilling effect” on doctors, but was confident that AB 2098 is narrow enough to apply only to “those egregious instances” in which physicians are acting with malicious intent “or clearly deviating from the required standards of care.”
Barke, a primary care physician, and McDonald, a psychiatrist, assert that the recently enacted law violates their rights to free speech under the First Amendment to the U.S. Constitution.
They allege the law, which allows the medical board to punish doctors for “unprofessional conduct” if they don’t comply with what the state deems to be scientific consensus, “chills the protected speech of medical professionals on the basis of viewpoint.”
It also intrudes into the privacy of the doctor–patient relationship and replaces the medical judgment of licensed professionals with that of the government, according to the complaint.
‘Scientific Consensus’ Constantly Changing
Daniel Suhr of Liberty Justice Center, lead attorney in the case, told The Epoch Times that AB 2098 is unconstitutional and “un-American.”While the law says doctors can’t provide patients with medical advice contrary to “scientific consensus” about COVID-19, the past two years have shown “the so-called scientific consensus is constantly changing and evolving,” Suhr said.
“In fact, it’s only because we allow doctors and scientists the freedom to challenge the scientific consensus, that we end up learning new things about how to treat the disease better, and actually deliver better results for patients,” he said.
Suhr said the Constitution allows Americans to determine what they believe is true, and only in a free and open marketplace of ideas can people see and understand their options.
“When the government comes in, and says, ‘We’re going to have one official truth,’ or ‘We’re going to ordain one ‘scientific consensus,’ that is fundamentally contradictory to 200 years of American history,” he said. “There’s something very Orwellian about it, for sure.”
Laws such as AB 2098 seem to be part of a coordinated censorship campaign that doesn’t bode well for democracy, Suhr said.
“We started with this whole concept of misinformation specific to COVID, and now, we see it in health care related to gender transition surgeries; we see it in climate change; we see it in election results,” he said. “Our government is claiming the right to define truth and then censor and suppress any [other] view.”
Carlos Villatoro, a spokesperson for the medical board, said the agency “does not comment on pending litigation”; Bonta’s office said on Oct. 4 that it had “not yet been served.”
‘Could Cause Harm to Patients’
The idea of the state compelling doctors to align their speech with the government narrative is “dangerous,” Barke, who is based in Orange County, told The Epoch Times.“I’m primarily involved because I think it’s important to protect patients’ rights … because if a patient feels that a physician is being muzzled to speak their truth and give their opinion, it’s going to have a chilling effect and potentially could cause harm to patients,” he said. “The bottom line is to protect patients.”
Barke disagrees with the notion that there’s scientific consensus on COVID-19 in the first place.
“Science is not consensus. It’s the opposite; it’s challenging consensus,” he said. “The only way you get scientific consensus is when you silence people that have a differing opinion, which is what’s happening now. So, there may be this perception that there’s some level of consensus, but there isn’t.”
For example, Denmark has recommended against COVID-19 boosters for any healthy person under age 50, while the U.S. is recommending that children as young as 6 months old be vaccinated, Barke said.
“So, if I speak out against vaccinating a healthy 6-month-old, or somebody who’s pregnant, or a teenager who’s otherwise healthy, I’m going against some made-up scientific consensus. And, technically at that point, the medical board could disapprove and accuse me of unprofessional conduct,” he said.
Not long ago, the U.S. Centers for Disease Control and Prevention (CDC) and other health care agencies had recommended asymptomatic people be tested for COVID-19, but now it doesn’t, he said.
During the statewide lockdowns, people weren’t allowed to attend school, sporting events, or theaters, based on the idea of asymptomatic spread.
“That was the premise upon which all these draconian measures were based,” he said. “So technically, if I’d spoken out a few months ago and said I don’t think asymptomatic spread is really important and we shouldn’t be testing people that don’t have symptoms, I’d be in violation of this law because I would be speaking out against the established medical scientific consensus—whatever that is.”
“AB 2098 is a bad law. It’s unconstitutional, anti-American, and it puts patients at risk,” he said. “I think it will be struck down in the court.”
