A Voice for Choice Advocacy files Amicus Brief
in AB 2098 Doctor Misinformation Lawsuit!

With the passing of AB 2098 in California (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2098), starting January 1, 2023, California licensed Medical Doctors and Osteopathic Doctors will be disciplined for unprofessional conduct if they "disseminate misinformation or disinformation related to COVID-19."

A Voice for Choice Advocacy is tracking legal challenges to this new law, given that AVFCA strongly opposed AB 2098 as it made its way through the legislature last year.  Three legal suits have been filed thus far by the Liberty Justice Center: https://libertyjusticecenter.org/cases/mcdonald-v-lawson/ which was dismissed (https://rickjaffeesq.com/wp-content/uploads/2023/01/McDonald-PI-Motion-Denied.pdf), by the New Civil Liberties Alliance: https://nclalegal.org/wp-content/uploads/2022/11/Hoeg-v.-Newsom_Complaint_Final-1.pdf and by Children's Health Defense: https://rickjaffeesq.com/wp-content/uploads/2023/01/Hoang-Final-Repyfilingcopy.pdf.  All three argue similar talking points to those made by A Voice for Choice Advocacy in conversations with legislative offices this session, as reasons to oppose or amend the bill – specifically, challenging the definition of misinformation (“false information that is contradicted by contemporary scientific consensus contrary to the standard of care"), given ever mutating COVID-19 variants, changing vaccine efficacy and the influx of treatments. 

Last week, A Voice for Choice Advocacy filed an Amicus Brief, in support of Hoeg vs. Newsom, to give our support to case, but also give the court some further points to consider.  You can read the Amicus Brief here:
https://avoiceforchoiceadvocacy.org/wp-content/uploads/2023/01/AVFCA-Amicus-Brief-Hoeg-vs-Newsom.pdf.  AVFCA's key arguments include:

1) AB 2098 (California Business & Professions Code § 2270) unconstitutionally regulates the flow of information from doctors to patients.  “An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients.”

2) AB 2098 (California Business & Professions Code § 2270)'s vagueness and overbreadth violates the First Amendment and the Fourteenth Amendment.  It restricts information that is presently contradicted by “contemporary scientific consensus.” This term is evasive, overbroad, and vague. The law uses the term “contemporary scientific consensus” (not even medical consensus) without any guidance as to how this “consensus” could be ascertained.

3) The State of California already has ample tools at its disposal to govern professional misconduct without violating a physician’s First Amendment Right. Specifically, there exists a less restrictive alternative to tackle the problem. Under California Business and Professions Code, Section 2234, the Medical Board of California can already take action against any licensee for unprofessional conduct arising from “gross negligence,” “repeated negligent acts,” “incompetence,” and acts involving “dishonesty.”

The first hearing of this case will be this week.  AVFCA is hopeful that the judges sees validity in the Plaintiff’s arguments, as well as ours.

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Together we can make change happen!

C

Christina Hildebrand
President/Founder
A Voice for Choice Advocacy, Inc.
[email protected]
www.AVoiceForChoiceAdvocacy.org