Lawsuits Seek to Overturn New Law Muzzling Doctors
Two groups of doctors have filed federal lawsuits to stop a new California law that shuts down doctors’ free speech rights by restricting the medical advice they can give patients.
The lawsuits have garnered support from critics across the political spectrum who see the new law as a dangerous precedent that undermines the First Amendment rights of doctors. The law is being slammed as a sign of creeping censorship infecting the field of medicine that will inevitably spread to other states.
The legislation, Assembly Bill 2098, pushed through the state legislature by Democrats, was signed into law on September 30 by Governor Gavin Newsom. It was backed by the California Medical Association, American Academy of Pediatrics and the American College of Emergency Physicians.
The law authorizes the Medical Board of California to enforce professional sanctions —including license revocation—against doctors who share “misinformation” about the pandemic. According to wording of the law, misinformation is anything that “is contradicted by contemporary scientific consensus.”
Ironically, seven of the board’s 15 members, who are appointed by the governor and state lawmakers, aren’t physicians, according to the WSJ. The president of the board is an environmental attorney. Another runs a life coaching company. Yet the law grants these individuals broad powers in determining what exactly constitutes “scientific consensus” and “misinformation.”
Dangerous Precedent Would Muzzle Science
The new law makes California the first state to take legal action against medical professionals who are deemed guilty for expressing a minority opinion about a medical issue.
“But it does more than just punish physicians for contravening medical orthodoxy,” writes San Francisco Chronicle, quoting Dr. Peter Doshi, university professor and assistant editor of the British Medical Journal (BMJ). “It is a dangerous precedent that could muzzle genuine scientific inquiry.”
This bill touched a nerve in medical circles around the country, noted left-leaning CounterPunch. “One out of every six practicing physicians in the U.S. today holds a California medical license. And loss of license in one state can be grounds for loss of license in another state.”
Both lawsuits are asking the court to strike down AB 2098 as unconstitutional, and have named Governor Newsom, Attorney General Rob Bonta and the Medical Board of California as defendants.
The plaintiffs in one lawsuit are LA psychiatrist Dr. Mark McDonald and Dr. Jeff Barke, an Orange County primary care physician. They are being represented by the Liberty Justice Center.
“Every patient is unique,” the LJC said in a press release. “The responsible practice of medicine requires that doctors use individualized professional judgment to determine the best course of treatment for each patient.
Doctors shouldn’t be blindly applying one-size-fits all guidance determined by government officials, the statement said. With this approach, “instead of protecting patients, California AB 2098 puts them at risk.”
The Ever-Shifting ‘Consensus’
Dr. McDonald in a statement made the point that the very concept of a “consensus of science” is an illusion, as evidenced by the ever-shifting advice coming from the nation’s highest health authorities.
“If this period has taught us anything, it is that the science and medical environments are constantly evolving, as new information confirm or reject prior policies,” the statement said. “California cannot insert itself into the physician-patient relationship to impose its views on doctors and end all debate on these important questions.”
Many may recall CDC director Rachelle Walensky making a startling admission earlier this year. “To be frank, we are responsible for some pretty dramatic, pretty public mistakes — from testing, to data, to communications,” she said, according to a NY Post article.
Given the CDC’s “dramatic mistakes” and the swiftness with which government narratives have reversed course, it’s unclear how California lawmakers expect their medical boards to determine what constitutes ‘scientific consensus.’
Regardless of the law’s ambiguity, the NCLA lawsuit notes that psychiatrist Mark McDonald, may be one of its early casualties.
In December 2021, the board notified McDonald about an anonymous complaint alleging his posts on social media were flagged as “misinformation.” Again in January 2022, the board asked McDonald to respond to allegations that he was promoting the use of ivermectin to treat Covid-19.
McDonald responded, stating it was “his practice to advocate for medical treatments that have the strongest empirical evidence to support their efficacy and safety.”
The Medical Board of California continued its pursuit of McDonald in August, requesting an interview, according to the lawsuit. That meeting is likely to take place over the next few months. The plaintiffs claim that the Board’s harassment of Dr. McDonald suggests its intent to use the physician-punishment power just granted to them against him, for recommending treatment to his patients that differed from the government protocol.
‘A Doctor With a Gag Order is a Doctor You Can’t Trust’
New Civil Liberties Alliance (NCLA) is representing five California-board certified doctors in the lawsuit Hoeg v. Newsom.
“California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country,” NCLA said in its press release. “That this shocking bill passed through the state legislature and was signed into law demonstrates that far too many Americans do not understand the First Amendment.”
“Our country has a strong historical commitment to free and open debate, and to protect the right of those who dissent from the government’s view to express their own opinions,” the statement said.
Dr. Tracy Hoeg, lead plaintiff in the NCLA lawsuit, singled out the “poisonous effect” the law will have on the doctor-patient relationship “by killing incentive for full honesty from doctors, and thereby diminishing patients’ trust in their doctors.”
“I urge the people of this state to humbly acknowledge what we have all seen during the pandemic,” she wrote. “Science is filled with uncertainty, and consensus can change rapidly with new information. Science advances precisely because of scientists and physicians who are brave enough to rightfully challenge orthodoxy.
“Indeed, it requires a lot of hubris to suggest a small group could ever be entrusted to be arbiters of truth,” Hoeg added.
“The NCLA press release quoted one of the plaintiffs, psychiatrist Dr. Aharon Keriaty, as equating AB 2098 to a “gag order” on physicians.
“A physician with a gag order is a physician you can’t trust,” stated the doctor. “Progress in science and medicine will be stifled by this law, which will drive good physicians out of California, ultimately harming patients.”
Lawsuits Draw Support from Unlikely Allies
The law has sparked fierce blowback from a wide array of critics, from strongly conservative voices to liberal and left-wing groups such as ACLU of California and Planned Parenthood.
Surprisingly for a group that supports almost all Democratic agendas, including those pushing moral boundaries to the outer limits, ACLU is one of the few liberal groups that perceived the grave dangers inherent in the new law.
The legislation suppresses free speech and isn’t needed to protect patients from medical misinformation or mistreatment, ACLU attorneys said in a filing in a Los Angeles court. There are already existing mechanisms for disciplining doctors who harm patients through negligence or by deviating from the standard of care.
“Rather than employ the existing tools at its disposal, the State has taken a blunt instrument to the entire profession,” the ACLU amici brief said. It quoted a Ninth Circuit ruling that lauded “an integral component—the open and frank communication between doctor and patient” – as the backbone of wholesome medical practice.
That Ninth Circuit decision, the ACLU argued, “plainly forbids the State from censoring physicians’ discussion, medical advice and recommendations related to Covid-19” and any other subject.
Given the marked vagueness in the California law that can be weaponized against doctors, the attorneys argued, “physicians will be loath to speak their minds with patients…They would have to worry that “at any point, the State could determine that [he or she] has violated AB 2098 for sharing an unconventional opinion and go after their medical license.”
Former Planned Parenthood president Leana Wen went even further in a Fox News op-ed, warning of widespread repercussions from the California legislation. Wen said the law represented “political interference in the practice of medicine” that could “hurt the medical system and worsen patient care.”
“AB 2098, taken to the extreme, could put many practitioners at risk. But is it really right for physicians to be threatened with suspension or revocation of their license for offering nuanced guidance on a complex issue that is hardly settled by existing science?” she asked.
Wen reminded readers of “the week-to-week overhauls of pandemic policies” from experts and government officials. “In a public health emergency, official guidance often lagged behind cutting-edge research,” Wen recalled. “Consider how long it took the CDC to acknowledge that the virus is airborne (and thus not blocked by common cloth masks).”
Gov. Newsom’s Damage Control
California Gov. Gavin Newsom has felt the sting from widespread protest over what many regard as a radical assault on First Amendment protections. Rallies in Sacramento in September prior to his signing the new legislation drew record numbers.
“Gov. Newsom made a splash this summer by running ads in Florida that claimed ‘freedom is under attack in your state.’ The ads should have aired in his own state, which is the land of lockdowns and mask mandates, scoffed the WSJ in an editorial. “And under a new state law, doctors may even be punished for disputing the government’s public-health orthodoxy.”
In the face of widespread criticism, Newsom attempted damage control, trying to soft peddle the legislation, saying, “To be clear, this bill does not apply to any speech outside of discussions directly related to Covid treatment within a direct physician-patient relationship.”
Newsom reassured Californians that AB 2098 will only be enforced for “egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care.”
“Why should we take the governor’s word that restraint will be exercised?” asked Dr. Scott Anderson in the Daily Republic. “I served as an expert consultant for the Medical Board on various cases, over the years. I do not recall encountering informal limitations on the board’s investigatory authority.”
Even if censorship and physician-punishment is in fact limited to one medical issue, that doesn’t make it constitutional,” countered Liberty Justice Center. “Imagine if doctors were censored over various cancer treatments or heart ailments. Would this be tolerated? An unconstitutional speech restriction cannot be salvaged by the announcement that it will be enforced in a narrow manner.”
‘Fear and Group Think’
“If the law stands, free thought and expression would be replaced by fear and group-think,” stated cardiologist and critical care expert Dr. Pierre Kory in an appearance on Fox News. “Many doctors choose to go-along-to-get-along—even with policies they vehemently disagree with—rather than finding themselves out of work and struggling to feed their families.”
Drs. Pierre Kory, Robert Malone, Paul Marik, Peter McCullough, Ryan Cole and many of their colleagues have been on the forefront of renowned experts persisting in sharing valuable information with the public that was often at odds with the prevailing government narrative.
Culled from their intensive frontline experiences and areas of expertise, their medical insights and guidance have reached followers in the millions.
All suffered severe consequences as a result of expressing a minority opinion and challenging medical orthodoxy. This fallout included being fired from their jobs, stripped of their titles and hospital privileges, and threatened with having their licenses revoked and board certifications cancelled.
Tellingly, the complaints against them have not come from patients but from medical boards responding to “anonymous allegations,” the doctors attest. None of the allegations point to unprofessional conduct or adverse outcomes from treatment or advice the physicians have administered.
Despite the media and medical censorship, scorn and vilification, all of them continue to speak out.
Noted scientist Dr. Robert Malone, inventor of mRNA technology platforms with decades of clinical experience, discussed the way in which the challenges of the medical profession have undergone drastic changes.
Throughout the course of human history, healers have been deeply revered, he noted in an article published on Substack. “From Hippocrates in 400 B.C., to Anton van Leeuwenhoek, who first discovered blood cells in 1670, to Sir Alexander Fleming, who discovered penicillin in 1928, physicians have been hailed as pioneers and champions of healing.”
This picture has become far more complex over time, the author wrote.
“Unquestionably, doctors save lives. Where would we be without penicillin, appendectomies and other life-saving surgery? Even our ability to sterilize wounds and prevent infection has saved millions of lives and has drastically increased the average lifespan.”
But there is a flip side, Malone pointed out. “For every lifesaving discovery, dozens more turn out to be harmful, ineffective, or even deadly. For nearly as long as modern medicine has existed, so have egregious ethical violations.”
In fact, the history of unethical experiments in the United States and abroad is long and harrowing, and fully documented, the article said. “Children, soldiers, prisoners and minorities have been forcibly or unknowingly subjected to dangerous and often lethal experiments… all in the name of science.”
Drug Industry’s Global Reach
Malone went on to note that Western medicine as we now know it “orbits around the pharmaceutical industry,” which has expanded to global proportions. “Medical schools teach doctors how to match symptoms with prescriptions; hospitals negotiate with insurance companies based on the cost of drugs; and the race is ongoing to create the newest drug that will cure whatever ails humanity.”
“The healers of today are no longer the heroes of old,” the author reflected. The healers of today are indirectly or directly funded by, and largely accountable to the pharmaceutical industry with its global reach. Not every doctor falls into this category. But the courage to stand alone is fraught with challenge and very rare.
The vast reach of drug companies has been largely enabled by governmental regulatory agencies, Malone said, many of which serve the pharmaceutical industry as a vehicle “to approve and sell their products, while limiting their liability.”
Critics, noting that the CDC and FDA receive more than 50 percent of their budget from Big Pharma, call this system “regulatory capture.”
While drug companies have brought hundreds of life-saving drugs to humanity, a glance at the legal record shows that many, including Pfizer and Johnson and Johnson, have left a trail of shocking corruption, attested to by court-imposed penalties in the billions of dollars for medical fraud.
Evidence has surfaced in recent federal lawsuits of another type of corruption; a too-cozy relationship between government agencies and pharmaceutical companies, whereby government uses private tech and media industries to ensure that only narratives favorable to certain drug companies are disseminated.
Those with dissenting opinions are censored and shut down, with new examples on display every day.
This was once unthinkable, the scientist said. To insinuate that these many institutions could be partnering in a global coordination that may have “cost millions of lives and undermined the very foundations of our democracy, was once pure conspiracy theory. Tantamount to blasphemy.
Shocking Turnarounds in Medical History
Stifling free speech by physicians is an approach that ignores medical history, writes the Daily Republic in an illuminating article. “Major advances in medical science were often initially scorned by officialdom. Times change. Opinions change. Medicine changes.”
The author, Dr. Scott Anderson asks readers to consider past episodes in medicine that illustrate cases of “misinformation” that proved right over time, or “information” that the passage of time proved wrong. He offers the following examples.
Ignaz Semmelweis (1818-1865) outraged his contemporaries in the Austro-Hungarian Empire by advocating that physicians wash their hands between patients. “Most doctors went straight from performing autopsies to delivering babies,” and a high incidence of “childbed fever” resulted from a fatal lack of decent hygiene in hospitals, notes Anderson.
“Semmelweis was ostracized for his views and died in a mental hospital. Today he is considered one of the fathers of modern antiseptic techniques.”
Another example of doctors whose discoveries were pooh-poohed by the establishment of their day are Barry Marshall (b. 1951) and Robin Warren (b. 1937), who discovered a microbe called “Helicobacter pylori,” which they believed was a cause of stomach ulcers.
The Gastroenterology Society of Australia found their work unpromising. After proving the bacterium could indeed induce ulcers, Marshall and Warren were awarded the Nobel Prize for Medicine and Physiology in 2005.
Still another doctor who went outside the scientific consensus and made a breakthrough discovery about the cause of neonatal blindness was Arnall Patz (1920-2010). A Johns Hopkins University ophthalmologist, Dr. Patz suspected that high dose supplemental oxygen was contributing to neonatal blindness, by causing a condition called “retrolental fibroplasia.”
Colleagues reacted with scorn. NIH officials warned that failure to give high-dose oxygen would “kill a lot of babies by anoxia, just to test a wild idea.” Clinical trials, however, proved Patz correct, according to Anderson. “He was co-recipient of the prestigious Lasker Prize, and neonatal blindness decreased by 60% after oxygen levels were adjusted downward in later years.”
Lastly, Frank Billings (1854-1932) popularized the “Focus of Infection Theory,” leading to millions of unnecessary tonsillectomies and dental extractions,” writes the Daily Republic article. “But this theory was abandoned, based on later research. The wholesale removal of healthy tissues, to foster better health, is no longer routine surgical practice.”
In each case, science was advanced and lives saved because the consensus was challenged by doctors and other medical experts who dared to speak out, the author noted.
“In George Orwell’s novel ‘1984,’ children of totalitarian society informed on parents, who were dragged off to the Ministry of Truth. Might our patients turn on us if we express unorthodox views or discuss alternative treatment options?” Anderson wondered.
“The hated East German secret police, known as the Stasi, turned a third of that country into informers. Family members, friends and co-workers engaged in mutual surveillance. Is that what we want in our medical clinics?”