Analysis of AB 2098 and Its Potential to Suppress Free Speech of Medical Professionals in California

Last September, California Governor Gavin Newsom passed a new law, AB 2098, that could have the effect of punishing medical professionals who express doubts about the established Covid narrative. At first glance, this may appear to be a beneficial measure, as it could encourage medical professionals to provide factual information to their patients and avoid making unsupported statements. However, upon closer examination, this law raises a number of serious concerns.

The language of the law is overly broad and vague – the term “misinformation“ on a new or unsettled area of medicine is open to interpretation, and could be used to target doctors who are simply asking questions or presenting alternative theories. This could have serious implications for patient care, as it could inhibit doctors from providing accurate information.

Furthermore, this law fails to take into account the fact that many doctors have raised questions over the long–term effects of the virus, or the efficacy of certain treatments. By punishing doctors who express these doubts, this bill could have a significant negative impact on patients‘ ability to make informed decisions about their care.

AB 2098 is a misguided attempt to suppress free speech and to punish doctors for questioning the official Covid narrative. It could lead to a dangerous precedent in medical research and public health, and could even extend to other areas of medicine, including psychology which already faces social criticism.

The language of AB 2098 is as follows:

(a) It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including 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.

(b) For purposes of this section, the following definitions shall apply:

(1) “Board” means the Medical Board of California or the Osteopathic Medical Board of California, as applicable.

(2) “Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.

(3) “Disseminate” means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.

(4) “Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.

(5) “Physician and surgeon” means a person licensed by the Medical Board of California or the Osteopathic Medical Board of California under Chapter 5 (commencing with Section 2000).

Analysis: This is an “intent” law meaning that the physician would need to know that the information they were providing was false and that they were giving that information with “malicious intent” or “intent to mislead.” It also has to be in the form of “treatment or advice,” which would imply a physician-patient relationship or specific advice.

Despite this language, detractors would likely argue that if anything that is said is outside of the official medical narrative, then it is automatically “misinformation” and therefore punishable to the point of loss of a professional license.

While medical boards should have an interest in preventing blatant quackery and fraud in doctor-patient relationships, the extension to emerging and unsettled areas of medicine is concerning.

This law has the potential to have a chilling effect on the ability of medical professionals to provide accurate information to their patients, inquire into new treatments, and raise questions on emerging theories. Without protections in place to ensure that this law is not abused, it could have serious implications for free speech and medical research.