Suing CA Governor Newsom and CA Medical Board for Censoring Medical Advice
Our lawsuit alleges that AB 2098 is unconstitutional, violating our 1st and 14th Amendment rights.
Yes, I know, it’s getting harder to keep my various lawsuits straight. I’ve posted here several times about our Missouri, et al. v. Biden et. al. case against the federal government for alleged collusion with social media companies to censor Americans. This new lawsuit, Høeg, et al. v. Newsom, et al., filed last week, challenges a new state law in California that infringes on the rights of doctors and patients. I posted here previously my testimony at the California Senate against this bill just before it was passed by the state legislature and signed into law by Governor Newsom:
With the help of the New Civil Liberties Alliance and a superb group of bravo California physicians, I am taking the case to the federal court. Just the News published an excellent piece on the lawsuit, “Doctors sue California for COVID ‘misinformation’ law that enforces amorphous ‘consensus’,” with the lede, “Impractical and ‘absurd’ to determine ‘contemporary scientific consensus’ for purpose of opening medical license investigations.” Here are some highlights from the article:
A new California law that targets medical professionals for spreading purported COVID-19 misinformation is not only unconstitutional but has already been weaponized against doctors for sharing their informed judgments on treatments and risks, they claim.
Five California physicians sued Democratic Gov. Gavin Newsom, Attorney General Rob Bonta and the Medical Board of California to overturn the "unprofessional conduct" law and block its enforcement because even brief First Amendment violations constitute "irreparable harm."
The law, which Newsom signed a month ago, takes effect Jan. 1.
The plaintiffs include psychiatrist Aaron Kheriaty, fired by the University of California Irvine for refusing its COVID vaccine mandate based on his natural immunity. Kheriaty is also a complainant in the amended lawsuit against the Biden administration for colluding with social media to censor COVID wrongthink.
Also suing: epidemiologist Tracy Beth Hoeg, until recently a physician resident at UC Davis, who is known for her research on COVID interventions, and Stanford University emergency room physician Ram Duriseti, who has "a manuscript in progress re-analyzing a mask randomized controlled trial" and has met with California senators' offices on COVID policy.
Tuesday's midterm elections could also affect administrative investigations and legislation to suspend medical licenses.
Minnesota Republican gubernatorial candidate Scott Jensen pledged to kneecap the state medical board if he's elected due to multiple investigations of the family physician for his COVID views. He's 4.3 percentage points behind Gov. Tim Walz (D) in RealClearPolitics' polling average (Oct. 10-30).
The lawsuit against California AB 2098, which like the social media collusion lawsuit was filed by the New Civil Liberties Alliance, says the board already had authority to sanction doctors who truly threaten patients by, for example, advising them to inject bleach to treat COVID.
The complaint also denies any legal effect from Newsom's signing statement that narrows the law's application to physicians who act with "malicious intent or clearly deviat[e] from the required standard of care while interacting directly with a patient."
The law "imposes a quintessential viewpoint-based restriction" by sanctioning "minority views" the board deems to diverge from an undefined "contemporary scientific consensus," the doctors claim, asking how methodologically it would determine this consensus.
Such enforcement is "impractical and borders on the absurd," chiling the speech of doctors by making them constantly guess what the board deems "consensus" at any given moment, which violates the 14th Amendment, the suit claims.
Bonta's office, which represents all defendants, didn't respond to a request for its response.
The plaintiffs have already "directly experienced threats from other doctors in response to their exercise of their free speech rights on social media," sometimes referring to AB 2098. They named the nonprofit No License for Disinformation as having whipped up Twitter mobs to report Kheriaty, Hoeg and plaintiff Azadeh Khatibi, a peer-reviewed researcher who treats infectious diseases.
Kheriaty's declaration warns that the law will undermine trust in physicians by making patients believe they are "simply parroting a government-approved 'consensus' answer" on COVID questions "without regard to whether or not their doctor actually endorses it."
The simplistic claim that "the COVID-19 vaccine works” ignores the lowered vaccine effectiveness following viral mutation and growing immunity as well as increased recognition of severe adverse reactions such as myocarditis, Hoeg's declaration says.
Duriseti could have been punished under the law for resisting the temporary consensus early in the pandemic that patients with severe COVID should be treated with intubation, his declaration says. "Consensus" can also mask government-driven misinformation such as that vaccinated individuals can't spread COVID or develop myocarditis, which was directly contradicted by real-world data from Israel.
Khatibi bucked the consensus in treatment for her own life-threatening disease, according to her declaration. "If the lone doctor had been afraid of getting investigated or having his license revoked for suggesting a non-consensus opinion, I wouldn't have heard about options for aggressive treatment," she wrote.
The motion for preliminary injunction argues the plaintiffs don't have to wait for the law to take effect because of the likelihood their prior speech "may be used against them either as the basis for a complaint, or to enhance any sanctions for speech" after Jan. 1.
The law has already chilled their speech and "deprived patients of their First Amendment rights to receive their doctors' honest advice," they claim.
Supporters of the law made clear they wanted to silence doctors who question the risk-benefit analysis of masking and vaccination, despite the growing divide between the U.S. and Europe especially on vaccination by age group, the brief says.
The doctors have a "substantial likelihood of success on the merits" because case law is so clearly stacked against viewpoint-based discrimination and restrictions on even false information, they claim.
The controlling 9th U.S. Circuit Court of Appeals has "recognized the core First Amendment values of the doctor-patient relationship" in a 20-year-old medical marijuana case that also inverted the government's argument that professional speech deserves less protection, the brief says. The appeals court said it may deserve "the strongest protection" of all.
Katy Grimes wrote another excellent article about our case for the California Globe, which includes the following:
Who approves the “consensus,” Dr. Pete [Mazolewski] wants to know. The medical board? Public health officials? Neither the members of the Medical Board nor all of California’s public health officials are licensed medical doctors – California’s Medical Board is currently made up of 12 individuals: 6 Medical Doctors, 3 attorneys, a Public Relations consultant, an “Ethics Reformer,” and a Life Coach.
The Globe reported in September ahead of the governor signing AB 2098, “As attorney Laura Powell of Californians for Good Governance noted, ‘Since AB 2098 explicitly restricts speech based on its content, it is presumptively invalid. The bill does not address the problem identified. The bill’s authors and supporters point to the problem of doctors who widely amplify falsehoods about Covid-19, but silencing them would violate the Constitution. To remedy the constitutional problems, it would have to be pared down to the point that it would simply duplicate existing law. Proponents are unable to cite a single example of a harm that could be prevented.’”
Fox News published an great article on the suit as well:
Finally, here are the statements from the plaintiffs in the NCLA press release:
“California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country. That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment. Our country has a strong historical commitment to free and open debate and to protect the ability of those who dissent from the government’s view to express their own opinions. We have no doubt that courts will see this unconstitutional law for what it is and strike it down.”
— Jenin Younes, Litigation Counsel, NCLA
“Beyond being an unconstitutional infringement on physicians’ First Amendment rights, the law will interfere with the sacred doctor-patient relationship. As physicians, it is our duty to be honest and transparent with our patients. The text of AB 2098 ironically already contains false information about Covid-19 vaccine effectiveness. Physicians will find themselves in a very difficult position of needing to choose between saying what they truly believe, saying what they think the medical board wants them to say, or simply staying silent. This law will have a poisonous effect on the doctor-patient relationship by diminishing patients’ trust in their doctors and by disincentivizing full honesty from doctors, making their job of caring for patients to the best of their ability even more challenging.”
— Tracy Høeg, M.D., Lead Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.
“AB 2098 is unconstitutional, infringing the First Amendment free speech rights of physicians and harming the doctor-patient relationship. A physician with a gag order is not a physician you can trust. Progress in science and medicine will be stifled by this law, which will drive good physicians out of California, ultimately harming patients.”
— Aaron Kheriaty, M.D., Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Dr. K's books is a unique contribution to the Covid literature and one of the best I've read to date. Strong recommend.
I've been supporting NCLA. Keep the fight going. God bless.