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Amicus Briefs

Mark McDonald, et al. v. Kristina D. Lawson, et al.; Michael Couris, et al. v. Kristina D. Lawson, et al.

Assembly Bill 2098 would have empowered the Medical Board of California to discipline physicians who disseminated information regarding Covid-19 that departed from the “contemporary scientific consensus.”

NCLA obtained a preliminary injunction on five doctors’ behalf in a successful challenge to this statute in Høeg v. Newsom. The State of California did not appeal that loss, apparently preferring to defend appeals against the unsuccessful plaintiffs in McDonald v. Lawson (from the Central District of Calif.) and Couris v. Lawson (from a stay in the Southern District of Calif.). NCLA’s amicus brief ensured that the U.S. Court of Appeals for the Ninth Circuit saw the arguments that prevailed in the Eastern District of California in Høeg v. Newsom.

AB 2098 was clearly enacted to prevent doctors from speaking openly to patients about Covid-19 prevention and treatment if their views conflict with the government’s. The statute subjected doctors to discipline for disseminating “misinformation,” which it defined as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” But the law provided no way to determine the meaning of contemporary scientific consensus. As the Høeg court recognized, the term “contemporary scientific consensus” is not only undefined in the law, but undefinable, especially in the context of a new illness like Covid-19, in which the science was constantly evolving. California physicians could not possibly know what the scientific consensus was at any given moment, making them fearful of being honest with patients. This chilled physicians’ speech, preventing them from advising patients to the best of their ability and jeopardizing the doctor-patient relationship. 

The law’s vagueness violates California physicians’ Fourteenth Amendment right to legal due process. AB 2098 did not treat “contradicted by contemporary scientific consensus” and “contrary to the standard of care” as distinct concepts, each of which must be proven. The terms were used without conjunction, suggesting they were synonymous. The Høeg court called this provision “grammatically incoherent.” The law, as written, provided no discernible standard by which doctors could operate medical practices and treat patients. 

NCLA also urged the Ninth Circuit to reject the McDonald court’s fatally flawed First Amendment analysis, which ignored the law’s severe viewpoint-discriminatory aspect. The district court conflated speech with conduct, disregarding Ninth Circuit and Supreme Court precedent on that distinction. Because AB 2098 was unconstitutionally vague and viewpoint discriminatory, NCLA asked the Ninth Circuit to reverse the district court and enter a preliminary injunction.

Mark Chenoweth
President and Chief Legal Officer
Jenin Younes
Litigation Counsel
Greg Dolin
Senior Litigation Counsel
NCLA FILINGS

Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal

February 9, 2023 | Read More

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