Judge finds California COVID-19 law too vague

A federal judge has blocked enforcement of a California law regulating what COVID-19 advice physicians can give their patients, but for now the order protects only a minority of doctors in the state.

Last week, U.S. District Judge William Shubb decided California Assembly Bill 2098 is likely too vague to survive a constitutional challenge. He blocked its enforcement against six individuals and two groups suing the state: Physicians for Informed Consent and the California chapter of Children’s Health Defense.

According to Physicians for Informed Consent, doctors in those groups constitute less than 10 percent of California’s 150,000 physicians. That means most doctors will need to practice great caution in offering COVID-19 advice to patients and the public.

Signed by Gov. Gavin Newsom in September, the law took effect Jan. 1 as part of California’s business and professional code. Under the law, two California medical boards may charge doctors with unprofessional conduct if they provide COVID-19 advice contrary to what the measure calls “contemporary scientific consensus.” The bill also references data from the Centers for Disease Control and Prevention in support of vaccines. COVID-19 has claimed more than 6.8 million lives worldwide, according to the World Health Organization.

A finding of unprofessional conduct could lead to physicians losing their licenses and ability to practice medicine.

Shubb’s ruling in the Eastern District of California applies to plaintiffs in two lawsuits, but there are other cases in play. In the state’s Central District, federal Judge Fred Slaughter decided the law is not “impermissibly vague” and likely would withstand a constitutional challenge on First Amendment free speech grounds, or on the 14th Amendment’s due process clause. On Dec. 28, he denied a motion to block enforcement of the law statewide.

Slaughter joined the federal bench in 2022 after nomination by President Joe Biden. Shubb became a federal judge in 1990, following nomination by former President George H.W. Bush. The dueling rulings point to a lack of agreement on what defines “misinformation,” a charge the state medical boards can levy against doctors.

Slaughter, the Biden appointee, ruled the charge “is not impermissibly vague, in that it requires … a false statement of information that is contradicted by contemporary scientific consensus, which further runs afoul of the applicable standard of care.”

Shubb, the Bush appointee, agreed with the physicians suing the state. “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus,” he wrote. “The concept of ‘scientific consensus’ as applied to COVID-19 is inherently flawed.”

So far, the California rulings apply to preliminary motions, with rulings on the merits of the cases likely months away. Richard Jaffe, the lead litigator for Physicians for Informed Consent, said he ultimately expects the case to end up before the Supreme Court.