Hiltzik: California’s fight against medical misinformation


Painfully aware of how attacks on COVID vaccines and anti-pandemic policies have undermined public health, California enacted a law this year making it harder to spread medical misinformation and disinformation about the pandemic. reasons to revoke a doctor’s license.

Unsurprisingly, crowds opposing vaccination and downplaying COVID have taken up arms against the law, which is known as AB 2098 and goes into effect on January 1.

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

There are issues open to debate within the scientific and medical communities, but that does not mean that there are no objectively verifiable facts on which the scientific community has a consensus.

—California attorney. General Rob Bonta

So far, two lawsuits challenging the law have been filed in federal courts in California.

The plaintiffs in these cases describe them as a direct effort to protect their right to free speech, but don’t be fooled. Their legal representation is in charge of organizations linked to right-wing foundations such as the Koch network.

One is the one based in Chicago liberty Justice Center, representing two doctors who sued the medical board in Los Angeles federal court on October 4 to block implementation of the law.

the other is the New Civil Liberties Alliancea right-wing litigation factory that sued the medical board and Governor Gavin Newsom in Sacramento federal court on behalf of five California doctors on November 1.

Both lawsuits seek to have the law declared unconstitutional as a violation of the First Amendment.

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

Among the initiatives of the New Civil Liberties Alliance 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 Office of Financial Protection. of the Consumer, which has gone after payday lenders and other alleged financial abusers. service companies.

The AB 2098 lawsuits fit these patterns very well.

His goal is a law that aims to protect patients from medical quacks by giving the medical board more explicit authority to police them. Who would be the victims if the law is repealed? Patients vulnerable to being misled by doctors they trust, that’s all.

The legal attack on AB 2098 has been adopted by the anti-vaccination organization Children’s Health Defensewhich is run by Robert F. Kennedy Jr., a prominent vaccine denier and conspiracy promoter. Kennedy ranked second among the “misinformation dozen” accused last year by the Center to Counter Digital Hate of playing a leading role in “spreading digital misinformation about Covid vaccines.”

In responding to Los Angeles lawsuit, California Attorney. Gen. Rob Bonta argued that AB 2098 falls within an exception to the First Amendment guarantee of free speech carved out by the Supreme Court. In various rulings, the court has allowed states “to regulate professional conduct, even if that conduct incidentally involves speech.” Bonta has yet to file a response in the Sacramento case.

The war against healthcare regulators predates the COVID pandemic. A good example is the right to try movement, which was a cruel farce perpetrated against those suffering from fatally intractable diseases, disguised as a compassionate path to experimental treatments for those patients.

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

In fact, the goal of the movement was to emasculate the Food and Drug Administration, with the consequence of undermining public health and harming everybody patients by allowing unproven treatments in nature.

Among the leading promoters of the federal law was Sen. Ron Johnson (R-Wis.), who eventually conceded that its purpose was “lessen the power of the FDA over people’s lives.” Never mind that the FDA’s legal responsibility is to keep harmful panaceas off the market.

Interestingly, Senator Johnson appeared in September as a critic of California misinformation law by co-authoring a Fox News op-ed that called the law “a hostile takeover of medicine by oppressive government censors.”

Johnson’s co-author was Pierre Kory, a doctor who has been promoting the anti-parasitic drug ivermectin as a COVID treatment despite careful scientific studies showing it has “no effect at all” on viral disease.

The presence of Johnson and Kory in the chorus of critics closes the loop on attacks on California law: it is part of the movement to undermine medical authority by making science-based medical regulation appear politicized. That movement has reached unprecedented levels of vehemence as a result of the pandemic.

The problem of licensed doctors spreading misinformation and misinformation about COVID and vaccines has become so acute that it led 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 central contention of the California lawsuits is that the law’s definition of “misinformation or disinformation related to COVID-19” is so ambiguous that it cannot be grounds for a “professional misconduct” lawsuit.

However, the law is not so vague. It targets “false or misleading information about the nature and risks of the virus, its prevention and treatment; and the development, safety and efficacy of vaccines against COVID-19”.

The statute defines misinformation as “false information that is inconsistent with contemporary scientific consensus contrary to the standard of care.”

Plaintiffs in both lawsuits argue that “scientific consensus” is a moving target, particularly as it relates to COVID-19, many aspects of which are still under study.

Since the outbreak of the pandemic in early 2020, observes Aaron Kheriaty, a former UC Irvine medical ethicist and one of the plaintiffs in the Los Angeles case, “public health recommendations and the ‘consensus’ regarding the COVID changed frequently as new information became available. ”

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

Clearly, however, it is not the recommendations and guidelines that are the subject of professional discussion and dispute that constitute the focus of the law. Rather, it is the continuous dissemination of information that is known be fake

Another Los Angeles plaintiff, Tracy Høeg, has acknowledged that this variety of quackery exists. “There is no question that misinformation has been harmful during this pandemic,” she wrote in an opinion piece from April.

Among the false information he cited were “claims that COVID-19 is ‘like the flu,'” that COVID-19 vaccines harbor “tracking microchips,” and that ultraviolet light or disinfectants should also be used internally. to fight the virus. as the “non-scientific promotion of drugs such as hydroxychloroquine against COVID-19”.

Bonta’s response in the Los Angeles lawsuit clarifies that very point.

“There are issues open to debate within the scientific and medical community, but that does not mean that there are no objectively demonstrable facts on which the scientific community has a consensus,” he argued.

Do the plaintiffs really believe that the Medical Board of California cannot distinguish between debatable modes of treatment and scientifically validated results? If so, your skepticism is unwarranted. If anything, the board, not known as a particularly activist regulator, has been too lax in cracking down on spreaders of misinformation, not too aggressive.

As Bonta noted, the burden of proof rests with the medical board in any disciplinary proceeding. In addition, any doctor has the right to challenge the board’s discipline in court.

Without a doubt, COVID has been a massive threat to public health. Its devastating effect has only been magnified by medical professionals downplaying the threat and politicizing anti-COVID measures like vaccines, especially when they do so with lies and misinformation.

The doctors whose names appear in the lawsuits challenging AB 2098 may sincerely believe that their rights to free speech are at stake, but they need to think more about what really motivates the legal grounds to bring their cases. The record suggests that it may be about more than just the health and well-being of ordinary citizens.


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