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Column: The right wing gets its knives out for California's new medical misinformation law

Robert F. Kennedy Jr., leading anti-vaxxer
Robert F. Kennedy Jr.'s anti-vaccine organization has embraced a legal attack on California's law fighting COVID-19 misinformation. (Evan Vucci / Associated Press)

Painfully aware of how attacks on COVID-19 vaccines and anti-pandemic policies have undermined public health, California enacted a law this year that makes spreading medical misinformation and disinformation about the pandemic grounds for revoking a doctor's license.

Unsurprisingly, the anti-vaccination and COVID-minimizing crowds have taken up arms against the law, which is known as AB 2098 and is set to take effect on Jan. 1.

The law states explicitly that "the dissemination of misinformation or disinformation" related to COVID-19 or COVID vaccines ranks as unprofessional conduct. That makes such conduct subject to discipline by the California Medical Board, up to and including license revocation.

There are issues open to debate within the scientific and medical communities, but that does not mean there are not objectively provable facts on which the scientific community has a consensus.

California Atty. Gen. Rob Bonta

Two lawsuits challenging the law have been filed in federal courts in California so far.

The plaintiffs in these cases depict them as straightforward efforts to protect their right of free speech, but don't be fooled. Their legal representation is provided by organizations with ties to right-wing foundations such as the Koch network.

One is the Chicago-based Liberty Justice Center, which represents two doctors who sued the medical board in federal court in Los Angeles on Oct. 4 to block its implementation of the law.

The other is the New Civil Liberties Alliance, a right-wing litigation factory that sued the medical board and Gov. Gavin Newsom in federal court in Sacramento on behalf of five California physicians on Nov. 1.

Both lawsuits seek to have the law declared unconstitutional as an infringement of the 1st Amendment.

Among the Liberty Justice Center's other lawsuits are cases challenging absentee balloting rules in New York, collective bargaining rights for public employees in Illinois and campaign finance disclosure requirements in Alaska.

Among the New Civil Liberties Alliance's initiatives are lawsuits challenging the Biden administration's student loan cancellation plan, its COVID vaccination mandates for federal employees and federal contractors, and the constitutionality of the Consumer Financial Protection Bureau, which has gone after payday lenders and other allegedly abusive financial services firms.

The lawsuits over AB 2098 fit these patterns very nicely.

Their target is a law that aims to protect patients from medical charlatans by giving the medical board more explicit authority to rein them in. Who would be the victims if the law is struck down? Patients vulnerable to being misled by physicians they trust, that's who.

The legal attack on AB 2098 has been embraced by the anti-vaccination organization Children's Health Defense, which is headed by Robert F. Kennedy Jr., a noted vaccine denier and conspiracy promoter. Kennedy was ranked second among the "Disinformation Dozen" accused last year by the Center for Countering Digital Hate of playing leading roles in "spreading digital misinformation about COVID vaccines."

In responding to the Los Angeles lawsuit, California Atty. Gen. Rob Bonta argued that AB 2098 falls within an exception to the 1st Amendment guarantee of freedom of speech carved out by the Supreme Court. In several rulings, the court has allowed states to "regulate professional conduct, even though that conduct incidentally involves speech." Bonta hasn't yet filed a response in the Sacramento case.

The war on healthcare regulators predates the COVID-19 pandemic. A good example is the right-to-try movement, which was a cruel sham perpetrated on sufferers of intractably fatal diseases, masquerading as a compassionate path to experimental treatments for those patients.

Several states passed right-to-try laws, and a federal version was signed by President Trump in May 2018 as a sop to right-wing interests, including the Koch brothers' network.

In fact, the movement's goal was to emasculate the Food and Drug Administration, with the consequence of undermining public health and harming all patients by allowing untested treatments out into the wild.

Among the leading promoters of the federal law was Sen. Ron Johnson (R-Wis.), who eventually admitted that its purpose was to "diminish the FDA’s power over people’s lives." Never mind that the FDA's statutory responsibility is to keep injurious nostrums out of the marketplace.

Interestingly, Johnson surfaced in September as a critic of the California misinformation law by co-authoring a Fox News op-ed that termed the law "a hostile takeover of medicine by oppressive government censors."

Johnson's co-author was Pierre Kory, a physician who has been promoting the anti-parasitic drug ivermectin as a COVID treatment despite painstaking scientific studies showing that it has "no effect whatsoever" on the viral disease.

The presence of Johnson and Kory in the chorus of critics brings the attacks on the California law full circle: It's part of the movement to undermine medical authority by making science-based medical regulation appear politicized. That movement has reached unprecedented levels of vehemence in the pandemic's wake.

The problem of licensed physicians spreading misinformation and disinformation about COVID-19 and the vaccines has become so acute that it prompted the Federation of State Medical Boards last year to warn medical professionals that doing so could put their licenses at risk. California is unusual in making that threat explicit.

The core assertion of the California lawsuits is that the law's definition of "misinformation or disinformation related to COVID-19" is so ambiguous that it can't stand as grounds for a judgment of "professional misconduct."

The law isn't all that vague, however. It targets "false or misleading information regarding the nature and risks of the virus, its prevention and treatment, and the development, safety and effectiveness of COVID-19 vaccines."

The statute defines misinformation as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care."

The plaintiffs in both lawsuits argue that the "scientific consensus" is a moving target, particularly as it applies to COVID-19, many aspects of which are still under study.

Since the pandemic's outbreak in early 2020, observes Aaron Kheriaty, a former UC Irvine medical ethics expert and one of the plaintiffs in the Los Angeles case, "public health recommendations and 'consensus' with respect to COVID changed frequently as new information became available."

These include "changing guidelines on ventilating patients, the use of high-dose steroids in hospitalized patients, and identifying previously unknown or overlooked safety issues with some novel antiviral therapies," Kheriaty declared. "As with the rest of medical science, yesterday’s minority opinion often becomes today’s standard of care."

Yet, plainly, it's not recommendations and guidelines that are subject to professional discussion and dispute that are the law's focus. Rather, it's the continued dissemination of information that is known to be false.

Another Los Angeles plaintiff, Tracy Høeg, has acknowledged that this variety of quackery is out there. "There is no question that false information has been harmful during this pandemic," she wrote in an April op-ed.

Among the false information she mentioned are "claims that COVID-19 is 'like the flu,'" that the COVID-19 vaccines harbor "tracking microchips," and that ultraviolet light or disinfectants should be used internally to fight the virus, as well as the "unscientific promotion of drugs like hydroxychloroquine against COVID-19."

Bonta's response in the Los Angeles lawsuit makes that very point.

"There are issues open to debate within the scientific and medical communities, but that does not mean there are not objectively provable facts on which the scientific community has a consensus," he argued.

Do the plaintiffs really think the California Medical Board can't distinguish between disputable treatment modes and scientifically validated results? If so, their skepticism is unwarranted. If anything, the board, which is not known as an especially activist regulator, has been too lax in taking action against disseminators of misinformation, not too aggressive.

As Bonta observed, the burden of proof is on the medical board in any disciplinary proceeding. Moreover, any physician has the right to challenge discipline by the board in court.

COVID-19 has undeniably been a massive threat to public health. Its devastating effect has only been magnified by medical professionals who minimize the threat and politicize anti-COVID measures such as vaccinations — especially when they do so with lies and misinformation.

The doctors whose names are on the lawsuits challenging AB 2098 may sincerely believe their free speech rights are at stake, but they need to think harder about what's really motivating the legal foundations bringing their cases. The record suggests that it may be something other than the health and welfare of ordinary citizens.

This story originally appeared in Los Angeles Times.

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