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California Set to Repeal COVID ‘Misinformation’ Law

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California Set to Repeal COVID ‘Misinformation’ Law

A doctor and emergency room nurse care for a patient at Mission Community Hospital in Panorama City, Calif., on Jan. 28, 2009. (David McNew/Getty Images)

Brad Jones

Brad Jones

9/13/2023

Updated: 9/19/2023

A bill to repeal California’s controversial COVID-19 “misinformation” and “disinformation” law—which intended to punish doctors who refused to comply with the government’s directives on masks, vaccines, and treatments during the COVID-19 pandemic—has quietly made its way through the state Legislature.
Senate Bill 815 would repeal parts of Assembly Bill 2098.
It would undo provisions that “expressly designate the dissemination of misinformation or disinformation related to COVID-19 as unprofessional conduct,” according to an analysis by the bill’s author, Assemblyman Richard Roth (D-Riverside).
The bill passed the Senate in May and the state Assembly on Sept. 14 and has now been sent to Gov. Gavin Newsom’s desk for his signature.
Mr. Newsom signed AB 2098, introduced by Assemblyman Evan Low (D-Campbell) and co-authored by then-Sen. Richard Pan (D-Sacramento), into law on Sept. 30, 2022.
In his signing message, the governor warned about the “chilling effect” that other potential laws could have on the freedom of physicians and surgeons to effectively talk to their patients about the risks and benefits of treatments for COVID-19.
“However, I am confident that discussing emerging ideas or treatments including the subsequent risks and benefits does not constitute misinformation or disinformation under this bill’s criteria,” he wrote.
Mr. Newsom said the law only applies to physicians’ speech with patients during discussions directly related to COVID-19 treatment.
“I am signing this bill because it is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care,” he wrote.
California Gov. Gavin Newsom speaks at a COVID-19 testing facility in Valencia, Calif., on Oct. 30, 2020. (Marcio Jose Sanchez/AP Photo)

California Gov. Gavin Newsom speaks at a COVID-19 testing facility in Valencia, Calif., on Oct. 30, 2020. (Marcio Jose Sanchez/AP Photo)

Days later, the law, which vaguely defined “misinformation and disinformation” as “unprofessional conduct” was challenged in court.
The law defined “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead,” and misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

Legal Challenges

It has since been met with several legal challenges, including complaints from Democratic presidential hopeful Robert F. Kennedy Jr. and the American Civil Liberties Union, two California doctors, Dr. Mark McDonald and Dr. Jeff Barke, and a group of five other physicians.
One of the plaintiffs in the latter lawsuit was Dr. Aaron Kheriaty, who was fired as the University of California–Irvine medical ethics director after he refused to get a COVID-19 vaccine, saying he had natural immunity after contracting the illness and recovering from it.
Judge William Shubb of the U.S. District Court for the Eastern District of California granted a preliminary injunction in Mr. Kheriaty’s suit blocking the state from enforcing AB 2098. He ruled that the statute’s “unclear phrasing and structure” could have a “chilling effect.”
However, his ruling runs contrary to a U.S. District Court for the Central District of California judge’s earlier decision to deny a preliminary injunction to Dr. Barke and Dr. McDonald, after they sued the Medical Board of California and state Attorney General Rob Bonta in October 2022 seeking for the court to declare AB 2098 unconstitutional and issue a preliminary injunction to prevent its enforcement. The case is still pending in the courts.
“The standard of care is always changing, especially as it relates to something new like COVID,” Dr. Barke said in an interview.
Dr. Jeff Barke, a primary care physician in Orange County, Calif. (Courtesy of Jeff Barke)

Dr. Jeff Barke, a primary care physician in Orange County, Calif. (Courtesy of Jeff Barke)

He said that today, for example, many people look back and laugh at the time when they sprayed down their groceries with alcohol or other disinfectants.
“We were all kind of freaked out, and then a few weeks later, we were like, ‘What in the heck are we doing? This makes no sense at all,’” he said. “So, it’s an evolving situation.”
During the lockdowns, President Joe Biden, Dr. Anthony Fauci, and Dr. Deborah Birx “all told us that if you get this vaccine, you don’t have to worry about getting COVID,” Dr. Barke said. “Well, we know now that’s not true.”
Yet, under AB 2098, any doctor who said early on in the pandemic that vaccines won’t stop the disease or transmission of it could have put their medical license in jeopardy for dissenting from the narrative of health care authorities or the corporate news media, he said.
“And so, if I were to say hydroxychloroquine and ivermectin work—and they do—and the government disagrees with that, technically, they could take my license away,” he said.
Dr. Barke said that AB 2098 isn’t only a violation of First Amendment rights but is also dangerous to patients because it forces doctors to adhere to the government’s narrative.
“It’s bad for doctors, and it’s dangerous for patients that I’m not allowed to speak my truth and give them an opinion based on my understanding of science, and my understanding of the patient and their complicated history,” he said.
Dr. Barke said he no longer supports retail pharmacies that toed the government line during the pandemic and will only use “freedom-loving” compounding or community pharmacies.
The U.S. Food and Drug Administration’s (FDA’s) recent move to walk back its condemnation of ivermectin is another example of changing standards of care, he said.
“Now they’ve said, ‘Just kidding. Ivermectin is probably OK,’” Dr. Barke said.
Ashley Cheung Honold, a Department of Justice lawyer representing the FDA, stated on Aug. 8 that the “FDA explicitly recognizes that doctors do have the authority to prescribe ivermectin to treat COVID.”
Dr. Simone Gold, a Beverly Hills physician who founded America’s Frontline Doctors, has called AB 2098 an “unconstitutional, Orwellian gag order.”
“This law attempts to mandate a new and undefined standard known as ‘contemporary scientific consensus’ and illegally suppress differing professional opinions counter to this consensus on COVID-19,” she wrote in January.
Dr. Simone Gold in an interview with NTD at Turning Point USA Student Action Summit 2020 in West Palm Beach, Fla., in December 2020. (Screenshot via NTD)

Dr. Simone Gold in an interview with NTD at Turning Point USA Student Action Summit 2020 in West Palm Beach, Fla., in December 2020. (Screenshot via NTD)

Political Response

Mr. Low said in a statement emailed to The Epoch Times on Sept. 12 that the SB 815 “update” will still hold doctors accountable.
“Fortunately, with this update, the Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments,” he said.
California State Assembly member Evan Low attends the Equality California 2018 Los Angeles Equality Awards at L.A. Live in Los Angeles on Sept. 29, 2018. (Phillip Faraone/Getty Images for Equality California)

California State Assembly member Evan Low attends the Equality California 2018 Los Angeles Equality Awards at L.A. Live in Los Angeles on Sept. 29, 2018. (Phillip Faraone/Getty Images for Equality California)

When asked if state medical board complaints against doctors for defying government mandates would be dismissed, he declined to comment.
Mr. Pan, who left office in December 2022 and is now running in Sacramento’s mayoral race, was unavailable for comment, according to his campaign staff.

‘Ugly Side’ of Overreach

Dr. Michael Huang, one of the doctors affected by AB 2098, shut down his independent family medical practice in Roseville, California, after he was inundated with about 30 Medical Board of California complaints.
Dr. Huang, who prescribed ivermectin and hydroxychloroquine for COVID-19-positive patients, says he has never lost a patient to the virus. He reports a 100 percent survival rate among more than 4,000 patients treated and said that next to none were hospitalized.
Dr. Michael Huang, whose private practice is based in Roseville, Calif., in an undated photo. (Courtesy of Dr. Michael Huang)

Dr. Michael Huang, whose private practice is based in Roseville, Calif., in an undated photo. (Courtesy of Dr. Michael Huang)

State lawmakers, he said, including the governor, overstepped their bounds with AB 2098 and assumed they had more “authority” over the medical profession than they actually do.
The pandemic was “the perfect storm that revealed the ugly side of California government overreach,” he said.
Just as it isn’t the government’s job to tell pilots how to fly in stormy weather, neither is it the government’s role to tell doctors how to practice medicine in the midst of a pandemic, he said.
“You cannot tell a pilot how to fly in turbulence. ... It’s up to the pilot—ability and training—to deliver their passengers safely from point A to point B,” he said.
Dr. Huang said he blames other doctors for not staying true to their trade and instead succumbing to pressure from the government.
“They have basically lost sight of what their core responsibility is: To safely deliver their passengers from point A to point B through this COVID pandemic. And they failed miserably,” he said.
Dr. Huang remains unapologetic for issuing mask exemptions for children based on medical reasons, and for nurses and firefighters who already had natural immunity from COVID-19 and refused to comply with vaccine mandates.
Now living on his savings and “taking a break from medicine,” he said he isn’t quite ready to uproot his family and leave the state but is seriously weighing his options.
“[Thinking about] the way California is doing business, the way they’re hurting the citizens that live here in the state, I don’t want to stay here,” he said. “If I were to decide to work, I don’t want to support this corrupt government. I don’t want my taxes, my heart, or anything going to these types of agencies.”
Brad Jones

Brad Jones

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Brad Jones is an award-winning journalist based in Southern California.

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