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California’s COVID misinformation law is embroiled in conflicting lawsuits and rulings

Governor Gavin Newsom may have been prescient when he acknowledged free speech concerns when he signed the California law. COVID-19 Disinformation Bill last fall. in a message to legislatorsThe governor warned of the “chilling effect other potential laws may have” on doctors’ ability to speak candidly with patients, but expressed confidence that the one he was signing did not cross that line.

However, the law, intended to discipline doctors who provide patients with false information about COVID-19, is now in legal limbo after two federal judges issued conflicting rulings in recent lawsuits saying it violates free speech. and it is too vague for doctors to know what it prohibits. them to tell the patients.

In two of the lawsuits, Senior US District Judge William Shubb in Sacramento issued an temporary stop in enforcing the law, but it applies only to plaintiffs in those cases. Shubb said the law was “unconstitutionally vague,” in part because it “does not provide a person of ordinary intelligence fair notice of what is prohibited.” His ruling last month clashed with one handed down in Santa Ana in December; in that case, US District Judge Fred Slaughter refused to stop the law and said it would “likely promote the health and safety of California patients with COVID-19.”

The legal fight in the country’s most populous state is, to some extent, a perpetuation of the pandemic-era fight pitting supporters of public health guidelines against groups and individuals who resisted mask orders. , school closures and vaccine mandates.

California’s COVID-19 misinformation law, which went into effect on January 1, is being challenged by vaccine skeptics and civil liberties groups. Among those who demand to have 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 limited to those who have fought against mainstream science.

Dr. Leana Wenprofessor of health policy at George Washington University who previously served as president of Planned Parenthood and as Baltimore’s health commissioner, wrote in an opinion piece a few weeks before Newsom signed into law that would have “a chilling effect on medical practice, with widespread repercussions that, paradoxically, could worsen patient care.”

The Northern California chapter of the American Civil Liberties Union has heavy on against the law on free speech grounds, though the national organization has affirmed the constitutionality of COVID-19 vaccine mandates.

“If doctors are afraid of losing their licenses for giving advice they think is helpful and appropriate, but they don’t quite know what the law means, they will be less likely to speak openly and candidly with their patients,” he said. Hanna Kieschnickattorney for the ACLU of Northern California.

The law states that doctors who provide false information about COVID-19 to patients are engaging in unprofessional conduct, which could subject them to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.

upholders of the law tried to suppress about what they believe to be the clearest cases: doctors promoting treatments like ivermectin, an antiparasitic agent that has not been proven as a treatment for COVID-19 and can be dangerous; who exaggerate the risk of getting vaccinated compared to the dangers of the disease; or who spread unfounded theories about vaccines, including that they may cause infertility either damage DNA.

But the law lacks those details, defining misinformation only as “false information that is inconsistent with contemporary scientific consensus contrary to the standard of care.”

michelle melloprofessor of health law and policy at Stanford University, said the wording is confusing.

“In a matter like COVID, the science is changing all the time, so what does it mean to say that there is a scientific consensus?” she asked. “To me, there are many examples of statements that clearly, without vagueness, meet the definition of the type of conduct the legislature was seeking. The problem is that there are all kinds of other hypothetical things that people can say that clearly don’t violate it.”

Dr Christine Cassel, a professor of medicine at UC San Francisco, said she expects the law to apply only in the most egregious cases. “I trust the scientists enough to know where there is a legitimate dispute,” she said.

Cassel’s opinion reflects Newsom’s justification for signing the legislation despite his knowledge of potential free speech concerns. “I am confident,” he wrote in his message to lawmakers, “that discussing emerging ideas or treatments, including subsequent risks and benefits, does not constitute misinformation or disinformation under the criteria of this bill.”

Plaintiffs in the santa ana case, two doctors who have sometimes strayed from public health guidelines, appealed Slaughter’s ruling that allowed the law to stand. The case has been combined in the US 9th Circuit Court of Appeals with another case in which a San Diego judge refused to rule on a similar request to temporarily suspend the law.

Newsom’s spokesman, Brandon Richards, said in early February that the administration would not appeal the two Sacramento cases in which Shubb issued the limited injunction. Lawyers for the plaintiffs hoped the state would appeal the decision, thinking that the 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 brought by a doctor, Kennedy’s Children’s Health Defense and a group called Physicians for Informed Consent, said Newsom’s decision not to appeal “will just add to the level of chaos in terms of to whom the law applies.

But the Newsom administration decided to wait for the appeals court to rule on the decisions of the other two justices that left the law intact for now.

Jenin Younesan attorney from the New Civil Liberties Alliance who is lead counsel in the another case from sacramento in which Shubb issued his injunction, he said Newsom may be calculating that “you’re in a stronger position if you win a victory than if you lose.”

A Newsom victory on appeals court, Jaffe and others said, could cushion the impact of the two Sacramento cases.

Opponents of California’s COVID-19 misinformation law question why it’s necessary, since medical boards already have the authority to discipline doctors for unprofessional conduct. Yet only about 3% of the nearly 90,000 complaints the California Medical Board received over a decade resulted in discipline for doctors, according to a 2021 investigation by the Los Angeles Times.

That could be good news for doctors who worry the new law could limit their ability to advise patients.

“I don’t see medical boards being particularly aggressive in policing the competence of physicians in general,” Stanford’s Mello said. “You have to be really mean to get his attention.”

This story was produced by KHNwhat publishes California Health Linean editorially independent service of the California Health Care Foundation.