Medical Censorship or Misinformation Police: What to Know About California AB 2098

October 7, 2022

What is California’s AB 2098?

Assembly Bill 2098, signed by Governor Gavin Newsom on September 30, 2022, authorizes the Medical Board of California to sanction and even revoke the licenses of doctors. Specifically, this affects doctors who share information about COVID-19 that is not consistent with what the Medical Board deems to be the official “scientific consensus.”

When considering the Medical Board’s decisions, it is worth noting that not all Board members are doctors, or even hold a medical degree. The Board President, for instance, is a lawyer.

AB 2098’s “scientific consensus” guidelines are inherently problematic

Under the terms of the new law, California’s Medical Board is authorized to punish doctors who share COVID-19 “misinformation” with their patients. The law defines “misinformation” as anything that “is contradicted by contemporary scientific consensus.”

But the scientific consensus has been evolving throughout the COVID-19 pandemic. The Centers for Disease Control and other public health authorities have constantly shifted their public presentation of scientific data. At the beginning of the pandemic, health authorities insisted the public not wear masks, then soon reversed that decision. Governor Newsom himself closed schools and even outdoor spaces— policies now widely acknowledged as unscientific and harmful.

Intended to protect patients, California AB 2098 puts them at risk

Every patient is unique. The responsible practice of medicine requires that doctors use individualized professional judgment to determine the best course of treatment for each individual patient. Doctors shouldn’t be blindly applying guidance determined by government officials for the broader population.

Prohibiting doctors from discussing any COVID-19 options other than those supported by the current “scientific consensus” undermines their ability to best serve their patients and puts patients at greater risk. As for fears of “misinformation”? Patients are already protected from false claims by California law which prohibits doctors from lying to patients or mistreating them for any illness.

AB 2098’s medical censorship is unconstitutional

The goal of California’s AB 2098 law is to chill free speech, specifically, the views of any doctors whose assessment of available medical facts differs from the State of California.

Daniel Suhr, managing attorney at the Liberty Justice Center points out:

“We rely on our doctors to give us their best medical advice, yet the State of California is stopping doctors from doing just that. That’s not just wrong, it’s unconstitutional. Doctors enjoy the same free speech rights as other Americans. The State of California cannot define a so-called scientific consensus on an issue and then punish anyone who dares challenge it.”

In his signing statement, Governor Newsom addresses the impact AB 2098 would have on doctors’ free speech rights and his attempt to narrow the bill’s focus to a specific issue area:

“To be clear, this bill does not apply to any speech outside of discussions directly related to COVID-19 treatment within a direct physician-patient relationship. I am concerned about the chilling effect other potential laws may have on physicians and surgeons who need to be able to effectively talk to their patients about the risks and benefits of treatments for a disease that appeared in just the last few years.”

But narrowing the bill’s focus doesn’t make it constitutional or advisable. As the California Globe notes: “As if it’s constitutional to limit censorship to one medical issue. Imagine if doctors were censored over various cancer treatments or heart ailments”. An unconstitutional speech restriction cannot be saved by the announcement that it will be enforced in a narrow manner.

Constitutionality and limiting medical progress are not the only concerns. AB 2098 also threatens patient privacy and could worsen the shortage of health-care staff by driving doctors out of state. 

Dr. Mark McDonald, MD, a Los Angeles psychiatrist, and Dr. Jeff Barke, MD, an Orange County primary care physician are standing up against the power grab by California bureaucrats to protect physicians’ free speech rights and to ensure they can advise their patients without interference. Learn more about their lawsuit, McDonald v. Lawson.