Judge: No ‘scientific consensus’ on virus
The federal judge who blocked a California law subjecting doctors to disciplinary action for giving patients information about COVID-19 that the state considers false said there was no established “scientific consensus” about prevention or treatment of the disease.
The coronavirus is “a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested,” U.S. District Judge William Shubb of Sacramento said Wednesday in a ruling halting enforcement of the law, which had taken effect this month. “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
And the law’s requirement that doctors follow “contemporary scientific consensus” when discussing the disease with their patients “does not have an established technical meaning in the medical community,” Shubb wrote — it might mean general opinion in the medical community, a formal statement by a group of physicians or an official position by health agencies. The language is unduly vague, he said, and its use as a standard for potential punishment of nonconforming doctors violates their freedom of speech.
That seemed to suggest that a physician shouldn’t be punished for advising a patient, for example, not to get vaccinated. Some of the doctors who filed the suit have questioned the effectiveness of COVID-19 vaccines, have advised patients not to wear masks and have endorsed treatment with hydroxychloroquine or ivermectin, drugs that federal health officials have described as ineffective and potentially dangerous.
“Nearly a third of the millionplus American deaths from COVID were preventable,” Dr. Donaldo Hernandez, president of the California Medical Association, which sponsored the new law, said Thursday. “We believe it is unconscionable that a few physicians have spread myths about unproven cures and outlandish claims that have made physicians’ jobs — to provide effective care for patients — more difficult and more dangerous.”
But attorney Hannah Kieschnick of the American Civil Liberties Union, which supported the legal challenges, said the new law, AB2098 by Assembly Member Evan Low, D-San Jose, is both overbroad and unnecessary. She said the state Medical Board already has the power to punish doctors, by suspending or revoking their licenses, if they knowingly give patients false information about their condition or treatment, but the board has not yet exercised that authority against a doctor who opposes COVID vaccines.
“When the law implicates First Amendment and freespeech rights like AB2098, the government has the burden of showing why the tools it already has are insufficient,” Kieschnick said in an interview. Laws like this one, she said, “force doctors to hold their tongues, because they’re not sure what they’re allowed to say.”
Attorney Greg Dolan of the New Civil Liberties Alliance, a nonprofit that takes part in suits against government regulation, said Shubb had halted the state’s “blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the governmentapproved ‘party line.’ ”
But Hernandez said AB2098 “applies only when a physician intentionally misleads a patient under their care or deviates from the appropriate standard of care. It does not stifle legitimate, needed, and appropriate scientific and medical debate.”
The U.S. Centers for Disease Control and Prevention says vaccines it has approved for the disease “are effective at protecting people from getting seriously ill, being hospitalized, and dying.” It recommends vaccinations and regular booster shots for children six months and older and all adults.
Shubb did not directly question the effectiveness of COVID vaccines or endorse alternatives. But he said doctors should not be punished for failing to abide by the “contemporary scientific consensus” because the term has no clear meaning.
“Who determines whether a consensus exists to begin with?” Shubb wrote. “If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered “contemporary”? And what source or sources should physicians consult?”
Another federal judge saw it differently. In a Dec. 28 ruling upholding the law, U.S. District Judge Fred Slaughter of Los Angeles said AB2098 simply allows the Medical Board to consider disciplining doctors for knowingly giving their patients “misinformation” or “disinformation” about the disease, terms he said were defined by “familiar standards of medical regulations and the opinions of the medical community.”
Two doctors who oppose COVID vaccinations have appealed Slaughter’s ruling to the Ninth U.S. Circuit Court of Appeals, which would also hear any appeal the state filed against Shubb’s ruling. Meanwhile, the law remains on hold.