Gov. Gavin Newsom may have been prescient when he acknowledged free speech concerns as he signed California鈥檚 last fall. In a , the governor warned of 鈥渢he chilling effect other potential laws may have鈥� 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 鈥� meant to discipline doctors who give patients false information about covid-19 鈥� 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 on enforcing the law, but it applies only to the plaintiffs in those cases. Shubb said the law was 鈥渦nconstitutionally vague,鈥� in part because it 鈥渇ails to provide a person of ordinary intelligence fair notice of what is prohibited.鈥� His ruling last month clashed with one handed down in Santa Ana in December; in that case, U.S. District Judge Fred Slaughter and said it was 鈥渓ikely to promote the health and safety of California covid-19 patients.鈥�
The legal fight in the nation鈥檚 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鈥檚 covid misinformation law, which took effect Jan. 1, is being challenged by vaccine skeptics and civil liberties groups. 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鈥檚 health commissioner, a few weeks before Newsom signed the law that it would exert 鈥渁 chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care.鈥�
The Northern California affiliate of the American Civil Liberties Union has against the law on free speech grounds, though the national organization the constitutionality of covid vaccine mandates.
鈥淚f doctors are scared of losing their licenses for giving advice that they think is helpful and appropriate, but they don鈥檛 quite know what the law means, they will be less likely to speak openly and frankly with their patients,鈥� 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 on what they believe are the most clear-cut cases: Doctors who tout treatments , 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 or .
But the law lacks such specifics, defining misinformation only as 鈥渇alse information that is contradicted by contemporary scientific consensus contrary to the standard of care.鈥�
Michelle Mello, a professor of law and health policy at Stanford University, said the wording is confusing.
鈥淥n a matter like covid, science is changing all the time, so what does it mean to say there is scientific consensus?鈥� she asked. 鈥淭o 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鈥檛 clearly violate it.鈥�
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. 鈥淚 trust scientists enough to know where there鈥檚 a legitimate dispute,鈥� she said.
Cassel鈥檚 view mirrors Newsom鈥檚 rationale for signing the legislation despite his awareness of potential free speech concerns. 鈥淚 am confident,鈥� he wrote in his message to lawmakers, 鈥渢hat discussing emerging ideas or treatments including the subsequent risks and benefits does not constitute misinformation or disinformation under this bill鈥檚 criteria.鈥�
Plaintiffs in the , two doctors who have sometimes diverged from public health guidelines, appealed Slaughter鈥檚 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鈥� 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 鈥� brought by a doctor, Kennedy鈥檚 Children鈥檚 Health Defense, and a group called Physicians for Informed Consent 鈥� said Newsom鈥檚 decision not to appeal is 鈥渏ust going to increase the level of chaos in terms of who the law applies to.鈥�
But the Newsom administration has decided to wait for the appeals court to rule on the other two judges鈥� decisions that left the law intact for now.
Jenin Younes, a lawyer with the New Civil Liberties Alliance who is lead counsel in the in which Shubb issued his injunction, said Newsom may be calculating that 鈥測ou鈥檙e in a stronger position going up on a win than on a loss.鈥�
A victory for Newsom in the appeals court, Jaffe and others said, could dampen the impact of the two Sacramento cases.
Opponents of California鈥檚 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 by the Los Angeles Times.
That could be good news for doctors who worry the new law could constrain their ability to advise patients.
鈥淚 don鈥檛 see medical boards being particularly vigorous in policing physicians鈥� competence in general,鈥� said Stanford鈥檚 Mello. 鈥淵ou have to be really bad to get their attention.鈥�
(Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.