Judge Temporarily Blocks California’s Covid ‘Misinformation’ Law That Punishes Physicians For ‘Wrongthink’
Judge William Shubb blasted the “misinformation” definition as “nonsense”.
A federal judge in California has temporarily blocked the enforcement of AB 2098, a measure which punished doctors for not pushing the state-directive narratives surrounding covid.
Judge William Shubb of the U.S. District Court for the Eastern District of California granted the preliminary injunction Wednesday in two related cases that challenged the law’s constitutionality.
In December, Judge Fred W. Slaughter of the U.S. District Court for California’s Central District denied a similar motion in a separate lawsuit aimed at the bill.
Also on Wednesday, the 9th Circuit agreed to hear the appeal for that case alongside a fourth, similar lawsuit filed in California’s Southern District.
Judge William Shubb of the U.S. District Court for the Eastern District of California granted the preliminary injunction Wednesday in two related cases that challenged the law’s constitutionality.
In December, Judge Fred W. Slaughter of the U.S. District Court for California’s Central District denied a similar motion in a separate lawsuit aimed at the bill.
Also on Wednesday, the 9th Circuit agreed to hear the appeal for that case alongside a fourth, similar lawsuit filed in California’s Southern District.
In the 30-page ruling, the judge blasted the definition of “misinformation“.
The law defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Judge Shubb called the law’s definition of misinformation “nonsense.”
The NCLA argued that “The term ‘contemporary scientific consensus’ is undefined in the law and undefinable as a matter of logic. No one can know, at any given time, the ‘consensus’ of doctors and scientists on various matters related to prevention and treatment of Covid-19. And even if such a poll could theoretically be taken, who would qualify to be polled? Only those doctors treating Covid-19 patients?
All doctors and scientists, or only those in certain fields? Who determines which fields? How often would such polls be taken to ensure the results are based on the most up-to-date science? How large a majority (or plurality) of the polled professionals qualifies as a ‘consensus’? The very existence of these questions illustrates that any attempt at a legal definition of ‘scientific consensus’ according to which doctors must operate in their day-to-day practice is impractical and borders on the absurd.”
Aaron Kheriaty, MD, is listed as one of the physicians in the lawsuit. He shared his thoughts on this ruling via Twitter.
2/ The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.
— Aaron Kheriaty, MD (@akheriaty) January 26, 2023
The ruling also highlights that doctors would be considered to have standing in these cases.
“One more detail here,” he added. “The preliminary injunction ruling also establishes that we five physicians have standing to challenge the law. This is important because a similar challenge filed against AB2098 was dismissed based on a ruling that the plaintiffs lacked standing.”
The New Civil Liberties Alliance represent the doctors, or NCLA, which is a nonpartisan civil rights firm.
Dr. Tracy Beth Høeg is the named complainant in the Høeg v Newsom case. She considers it a victory for free speech.
Judge Shubb granting Høeg v Newsom preliminary injunction in our case against CA AB2098 means we have blocked the enforcement of #ab2098
It’s the best news we could have gotten
Our lawyer @LauraPowellEsq will be hosting a twitter spaces at 7pm pst
link 👇https://t.co/2jgH8NMBKF https://t.co/QbWkJUFw41— Tracy Høeg, MD, PhD (@TracyBethHoeg) January 26, 2023
It is also a win for the good people of California, who like their doctors who keep them fully informed and would like to keep them.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Standing?
Who in California is not affected by the law?
It’s not just medical doctors; it’s every possible patient in the state.
It hasn’t been enforced against anyone yet which could be, usually is in fact, used to dismiss. The plaintiff must normally show an actual v speculative harm. Here the Judge has entered an order to temporarily prevent the enforcement b/c the statute has very clear Constitutional problems alongside logical fallacies in it’s construction.
How does one measure the information stifling effect?
Information that does NOT reach patients because medical doctors are afraid of violating the law?
That, to me, I believe a “reasonable man”, is “standing” for the patient.
I don’t disagree with you on that aspect. The problem is every statute has the same element of deterrence to some degree.
The State could made one of the punishment available for DUI to be put into the stocks outside the courthouse for 3 days. Would the simple possibility of that punishment alter behavior? Maybe. Until someone is sentenced to it no one has any specific injury or potentially imminent injury claim to raise.
That provision might be ruled as an unconstitutional punishment b/c a CT finds it to be cruel and unusual. No standing exists to challenge it until it is applied to someone b/c it’s one potential punishment among the rest.
I see your point but…
In your hypothetical law, individuals are “harmed”, in the present tense, by being deterred from imbibing before driving. A court would probably not worry about a “harm” that deters a violation of law.
In the present law context, individuals are “harmed”, in the present tense, by being denied needed medical information. I suggest that a court would probably worry about such “harm”, given the ambiguity of what is and what is not “accurate” medical information [which is pretty much what the judge who issued the injunction said].
Frank,
Sort of. There are multiple issues with the statute. First as the Judge pointed out what exactly is ‘consensus’? How is it reached? By whom? How often? IMO that’s why the injuction was imposed.The constitutional issues are very troubling. The Doc should have the ability to offer his opinion to patients. The patients should have the ability to seek out the physician of their choice. Both have an interest in the unfiltered flow of information. Both have a claim on free association. FWIW I agree with the injuction to temporarily prevent the enforcement in this instance.
The question of standing is what I am trying to explain. Very much over simplified a person normally can’t ask the CT to stop someone from doing what they MAY do in the future b/c the harm hasn’t occurred yet or isn’t imminent. The CT can only make rulings about an active controversy, otherwise they would be de facto legislating by imposing a sort of Judicial veto.
Think of this like a self defense scenario. You can’t shoot someone based on what they might do even if they describe it to you. You can shoot to stop an ongoing threat for an imminent threat. Imperfect analogy but close enough to get the gist of standing.
I confess that I don’t understand how the doctors would lack standing, since the bill is aimed directly at doctors. I’m a physician myself; if a bill says that I can’t say something, I should have standing to challenge it.
Only the State has standing. Roll back a little to the pathologist that stated that gastric ulcers and , in time, gastric cancer were linked to helicobacter. The “consensus” of the medical establishment was that this was not true. Roll back further to “germ theory” in the days of Lister. “Settled Science” has become the safe harbor for the devout worshipers of modern technology. New isn’t always better…just new.
Roll back even further, and you will find that sickness was caused by spirits, of the type that the third most powerful politician in America just had exorcised from her home.
When you need to define consensus legally, who ya gonna call — Nancy Pelosi?
I won’t cross THAT stream, bro.
So how just now did Pelosi stumble onto the fact that she was living in a house with demons? I would think there were plenty of mirrors around the house.
It took her awhile, since she has no reflection
Trying to give legal definition of ‘scientific consensus’ according to which doctors must operate in their day-to-day practice doesn’t just border on the absurd, it’s squarely in the middle of Asbsurdville.
There was a time when scientific consensus held that the world was flat.
That is my stock observation any time someone brings up “common sense gun control.” Once upon a time, “common sense” told us all that the world was flat, the sun orbited it, and heavier objects fall faster than lighter ones. “Common sense” is shorthand for “I couldn’t be bothered to do the actual homework, so I pulled an answer out of my ass.”
That’s actually a myth used to attack Christians, YECers, and non-evolutionists. The theory being that folk in the past were so stupid they believed in basic misinformation. The actual truth is that from at least 240 BC in the Greek world, the Earth as a sphere was known. The sole exception to this is fanciful depictions in art, and art of course is based on fantasy.
You would be more correct to say there was a time when Ptolemic Theory was considered fact, and indeed it was no less accurate in some ways, than Copernicus’ misinformation. and it took centuries before that ‘misinformation’ became accepted as mainstream.
Could our society survive if COVID (or some other disease) orthodoxy controlled what information was and was not permitted? How would anything new be attempted let alone discovered given it would automatically be prohibited misinformation?
The Greeks not only knew that the Earth is a sphere, they knew its diameter, how far away the Sun and Moon are, and their sizes relative to the Earth. They were no dummies. The Earth’s roundness is pretty obvious to anyone who has seen a ship’s masts disappearing below the horizon.
There was a time Ptolemic Theory held that the vaccines were safe and effective.
See if you can guess who said the following:
“No science can develop and prosper without the clash of opinions, without freedom or criticism. This rule has been violated … A closed group of infallible leaders has been created which, while insuring itself against criticism, has begun to act in a willful high-handed manner”.
It was Joseph Stalin, see Alan Bullock’s “Hitler and Stalin, Parallel Lives”, page 961, over an attempted by Communist philologists to dictate what is proper [Communist] language.
What does it mean when the State of California is to the LEFT of Joseph Stalin?
It means today is a day that ends in Y.
Yet Stalin promoted Lysenkoism, which has an eerie current day resurgence as Woke science
Stalin was consistent in his conviction that he should be the guy in charge, by any means necessary.
My point was that even Stalin on occasion made exceptions from Leftist orthodoxy, but the State of California, never.
Your point was that Stalin was at times a Communist.
Thanks, none of us knew that.
You’d thing graduating from college, graduating from medical school, serving a medical residency, and having first-person experience with patients, diseases, treatments, and results would qualify you to be able to express a medical opinion. But I guess the Democrat-run California government thinks of itself as the only entity that is so qualified.
Not quite – Silicon Valley also operates under the illusion that boilerroom, minimum-wage “fact checkers” are likewise eminently qualified to discern what is and isn’t medical “misinformation.”
Weird how basically the same ideological group pushes back and wins against any abortion restrictions as the legislature trying to practice medicine or preventing doctors from practicing medicine then champions and will probably ultimately win preventing doctors from practicing medicine and allowing the legislature to practice medicine with laws like this. The LEFT never gets called out for their hypocrisy… they don’t even need to worry about it. And the courts stand ready to help however they can
Exclude anybody who disagrees, and they’ll get consensus among those left — quieter, but you don’t learn much.
“Without deviation from the norm, progress is not possible.” ― Frank Zappa
The problem with the ruling is that it violates the Trofim Lysenko Doctrine that underlays everything done in a Leftist State. Short form: What the almighty State wants shall be done. / limited amount of sarc.
Subotai Bahadur
In Oregon it was “say anything contrary to the state narrative and lose your license.” I am wondering how long it will take them to burn all the textbooks on Infectious Disease that were printed before 2020 and are chock full of information that is completely contrary to how they handled WuFlu. We have a local librarian who is still wiping down everything in site with alcohol. I personally think that she is just doing it for the fume cloud. They also have huge HEPA blowers which do nothing except ensure that we get to enjoy Eau de Homeless equally throughout the building. For 1/10 the cost and 1/10 the energy expenditure they could install a half dozen 10W UV lights in the cold-air return and actually kill some airborne baddies, but that is just “common sense.” 😉
Texas’ Board of Medicine was trying to do the same, however I hear the State Legislature is ready to get out the steel-toed boots after the. WuFlu vaccine failures and the studies showing the lockdowns, etc. did nothing to slow or prevent transmission. I hope the legislature goes after all of the professional boards, because they have been following a wokester line—and it’s time the legislature put it’s foot down and say ENOUGH.
No one can know, at any given time, the ‘consensus’ of doctors and scientists on various matters, especially when any variance from any older ‘consensus’ could have you suspended from the practice.
This is a prescription for the end of science as Lysenkoism would prevail.