A California judge on Wednesday issued a preliminary injunction against the controversial Assembly Bill 2098. The new state law empowers the Medical Board of California to discipline physicians who voice opinions about COVID-19 that counter the “contemporary scientific consensus.”
A group of five California physicians—Tracy Hoeg, Aaron Kheriaty, Azadeh Khatibi, Ram Duriseti, and Pete Mazolewski—sued California Gov. Gavin Newsom’s administration in November. The docs argued that the law violates their First Amendment rights by impeding their ability to communicate with their patients during treatment.
“In safeguarding Americans’ rights to free speech and expression, the First Amendment applies not only to expression of majority opinions, but to minority views as well,” the complaint said.
Doctors also argued that “contemporary scientific consensus” is “undefined in the law and undefinable as a matter of logic.”
U.S. District Court Judge William B. Shubb appeared to agree with the doctors, writing in his ruling that “the term lacks an established meaning.”
“Judicial references to the concept of scientific consensus—in the context of COVID-19 as well as other disputed scientific topics—confirm that the term lacks an established meaning,” Shubb wrote. “Courts have based their understanding of scientific consensus on a wide range of sources, including U.S. professional organizations, international professional organizations, state and federal courts, U.S. scientific studies, international scientific studies, various federal agencies, and the state of application of the law is highly fact-specific.”
The preliminary injunction temporarily blocks the implementation of the law while the case is tried in court.
Assembly Bill 2098 was set to go into effect on Jan. 1, 2023.
Aaron Kheriaty, MD, one of the physicians in the lawsuit, celebrated the court’s decision on social media Wednesday. Dr. Kheriaty noted that the ruling “bodes well for our case” because it indicates that their arguments have “a strong pre-trial facial plausibility.”
2/ The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.
— Aaron Kheriaty (@AaronKheriatyMD) January 26, 2023
“One more detail here,” he added. “The preliminary injunction ruling also establishes that we five physicians have standing to challenge the law. This is important because a similar challenge filed against AB2098 was dismissed based on a ruling that the plaintiffs lacked standing.”
4/ One more detail here: the preliminary injunction ruling also establishes that we five physicians have standing to challenge the law. This is important because a similar challenge filed against AB 2098 was dismissed based on a ruling that the plaintiffs lacked standing.
— Aaron Kheriaty (@AaronKheriatyMD) January 26, 2023
The New Civil Liberties Alliance (NCLA), a nonpartisan civil rights firm, reportedly represents the doctors.
In November, Jenin Younes, counsel for the NCLA said California’s new “misinformation” law is the result of the increasing censorious mentality that has gripped many lawmakers in America.
“That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment,” Younes said.
Plaintiff Dr. Tracy Hoeg wrote in the lawsuit that she is “afraid of saying something to my patients that I know is consistent with the current scientific literature but may not yet be accepted by the California Medical Board.” She argued that physicians must “feel free to speak truthfully with their patients if they wish to gain and maintain their trust.”
Hoeg noted that the California law “puts physicians who are simply trying to give appropriate and individualized recommendations in a difficult position, particularly considering they may not know what the California Medical Board’s ‘consensus’ is at the moment or if it also evolves as our understanding evolves.”
Hoeg, the author of nine epidemiological analyses, wrote on Twitter that “justice is prevailing” and that is “good news for California and the world.”
Høeg v Newsom is a grassroots lawsuit brought by ordinary people. We've paid nothing to our incredible lawyers
Justice is prevailing through our legal system bc we took up the fight
This prelim injunction against the physician censorship law AB2098 is good news for CA & the world https://t.co/Jzlp4S7uiS— Tracy Høeg, MD, PhD (@TracyBethHoeg) January 26, 2023