The California legislature has advanced a bill that would allow the state's medical regulators to punish doctors for spreading false information about the COVID-19 pandemic, such as vaccine efficacy claims, drawing complaints that it could violate doctors' freedom of speech.
The bill, AB 2098, which passed the state Senate on Monday night, would give the Medical Board of California and the Osteopathic Medical Board of California, the agencies that license physicians, the ability to suspend or revoke doctor's state licenses for spreading COVID-19 disinformation or misinformation, which is vaguely defined as information that goes against "contemporary scientific consensus."
"The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk," the bill reads . "Major news outlets have reported that some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals."
"Misinformation" is defined in the bill as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” while "disinformation" is defined as misinformation that a doctor provides a patient with "malicious intent or an intent to mislead."
"Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore must be held to account," said California state Assemblymember Evan Low (D).
California's bill would be the first to target COVID-19-related speech from medical providers and could serve as a model for other states. The bill follows a statement last year from the Federation of State Medical Boards’ Board of Directors, a nonprofit organization representing medical boards in the United States, that argued licensed doctors or physicians have an "ethical and professional responsibility" to share information "factual, scientifically grounded and consensus-driven for the betterment of public health."
"Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk," the organization wrote .
The legislation has drawn criticism from some who argue it would infringe on doctors' First Amendment rights.
"The Constitution simply doesn't allow that broad infringement on speech, even if the speech is false," one speaker who identified herself as a civil rights attorney told the state Assembly. "It would discourage conscientious doctors from expressing themselves freely about a topic that is fraught with uncertainty due to its novelty."
Physicians for Informed Consent, an educational nonprofit group focusing on science and statistics, called the bill "irreparably vague" in a lawsuit that seeks an injunction against the Medical Board of California, who they say is unlawfully weaponizing the term "misinformation" to censor and sanction physicians who "publicly disagree with the government’s ever-evolving, erratic, and contradictory public health Covid-19 edicts."
The group noted that recommendations and information, especially at the beginning of the pandemic in 2020, have since evolved or changed, such as the understanding of the possibilities of the virus's origin or recommendations pertaining to who should get vaccines and when.
California laws regarding pandemic-related guidance in the state have previously been shot down for overreaching. The Supreme Court sided with religious groups last year, striking down a state law that stipulated no more than "three households" could be present at a religious or nonreligious gathering in one home, with the majority opinion noting that the state allowed larger gatherings at hair salons or other retailers at the time.
The medical misinformation legislation will head back to the state Assembly to approve the state Senate's amendments before it heads to Gov. Gavin Newsom's (D) desk for signature. He has three weeks to sign it into law and has yet to take a public stance on the bill.