A civil liberties group is challenging a new and controversial "scientific consensus" bill on constitutional grounds, a month after it was signed by Gov. Gavin Newsom.
“States can't make laws that conflict with the rights guaranteed in the Bill of Rights and other parts of the Constitution,” said Jenin Younes, litigation counsel with the New Civil Liberties Alliance (NCLA).
NCLA filed the complaint on Nov. 1 in the Eastern District of California on behalf of Drs. Tracy Høeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi alleging that AB 2098 is being weaponized as a way to silence, intimidate and punish doctors who dissent from mainstream views.
“This lawsuit is vitally important in maintaining the sanctity of the doctor-patient relationship that this law has struck down,” Younes said. “Doctors simply cannot treat patients to the best of their ability in line with their sort of experience and judgment based on everything they know if they're afraid.”
The California General Assembly approved the measure 56-20 on Aug. 30, and Newsom signed AB 2098 into law on Sept. 30 despite opposition from the Association of American Physicians and Surgeons (AAPS).
“Physicians must not be coerced into blindly following the establishment ‘consensus’ and refraining from entering into the debate that is crucial to advancing both science and rational public health policies,” the AAPS letter states. “AB 2098 will harm the welfare of California patients, the integrity of the medical profession, and the well-being of the entire state.”
AB 2098 would not only classify perceived disinformation as unprofessional conduct but also strip physicians of their license to practice for prescribing treatments with off-label drugs that are unapproved by the state.
“One of our plaintiffs is actually a patient,” Younes told the Southern California Record. “We’re arguing that this deprives her of the right to receive her doctor's unfettered advice without being afraid of repercussions. We're asserting the rights of patients to receive the doctor's advice.”
The first count in Høeg et al v. Newsom et al is viewpoint discrimination under the First Amendment of the U.S. Constitution.
“There are already mechanisms in place for doctors who commit malpractice, so if they do something really egregious, that's already covered,” Younes said. “What we're arguing is that this is basically aimed at just silencing dissenters when it comes to COVID.”
The second count is unconstitutionally vague language under the 14th Amendment of the U.S. Constitution because the bill does not define the phrase "scientific consensus."
“Scientific consensus may not even be definable, especially in the context of COVID where it’s new and things keep changing so doctors can't know what the consensus is, which makes them more afraid to speak," Younes added. "It's called a chilling effect.”