Oroville Mercury-Register

State's COVID misinforma­tion law entangled in conflict

- By Bernard J. Wolfson

Gov. Gavin Newsom may have been prescient when he acknowledg­ed free speech concerns as he signed California's COVID misinforma­tion bill last fall. In a message to lawmakers, the governor warned of “the chilling effect other potential laws may have” 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 — meant to discipline doctors who give patients false informatio­n about COVID-19 — 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 temporary halt on enforcing the law, but it applies only to the plaintiffs in those cases. Shubb said the law was “unconstitu­tionally vague,” in part because it “fails to 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, U.S. District Judge Fred Slaughter refused to halt the law and said it was “likely to promote the health and safety of California COVID-19 patients.”

The legal fight in the nation's 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's COVID misinforma­tion law, which took effect Jan. 1, is being challenged by vaccine skeptics and civil liberties groups. Among those suing 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's health commission­er, wrote in an op-ed a few weeks before Newsom signed the law that it would exert “a chilling effect on medical practice, with widespread repercussi­ons that could paradoxica­lly worsen patient care.”

The Northern California affiliate of the American Civil Liberties Union has weighed in against the law on free speech grounds, though the national organizati­on has affirmed the constituti­onality of COVID vaccine mandates.

“If doctors are scared of losing their licenses for giving advice that 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 frankly with their patients,” 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.

Doubts about the law are not confined to those who have battled the scientific mainstream.

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