Tracy Høeg, M.D., et al. v. Gavin Newsom, Governor of California, in his official capacity, et al.

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Exhibit 1

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Exhibit 4

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Exhibits A-L

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Washington, DC (January 25, 2023) – Senior Judge William B. Shubb of the U.S. District Court for the Eastern District of California today granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that plaintiffs have standing to bring a legal challenge, and enjoined implementation of Assembly Bill (AB) 2098 in California. The controversial state law empowered the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Judge Shubb stated that “the ‘contemporary scientific consensus’ lacks an established meaning within the medical community,” and thus, because the “scientific consensus” is so ill-defined and vague, the physician plaintiffs in the lawsuit are “unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents five physicians licensed by the Medical Board of California. Drs. Høeg, Duriseti, Kheriaty, Mazolewski, and Khatibi alleged violations of their First Amendment rights to free speech and expression and their Fourteenth Amendment rights to due process of law. At oral argument on Monday, January 23, NCLA argued the term “contemporary scientific consensus” is undefined in the law and undefinable as a matter of logic. No one can know, at any given time, the “consensus” of doctors and scientists on various matters related to the prevention and treatment of Covid-19. Judge Shubb agreed with this analysis, stating, “COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time.” Because he ruled in favor of Plaintiffs’ Fourteenth Amendment arguments, he did not reach the First Amendment arguments.

Plaintiffs attested that they could not communicate freely with patients, nor treat them properly, according to their best judgment, when they feared being reported and potentially subject to discipline for giving a patient advice that departs from a supposed “scientific consensus.” The very concept of “scientific consensus” is problematic and represents a misunderstanding of the scientific process. As Judge Shubb recognized, “COVID-19 [is] a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested. COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”

NCLA commends Judge Shubb for safeguarding our clients’ rights to free speech by enjoining this vague law. Judge Shubb’s decision also granted a PI in a second case making similar arguments against the law in a later-filed case that was argued before him at the same time this past Monday on behalf of additional plaintiffs.

NCLA released the following statements:

“NCLA is gratified Judge Shubb has recognized that AB 2098, which seeks to punish California doctors for giving patients information that departs from the so-called contemporary scientific consensus about Covid, creates an impossible standard for physicians to follow and would result in silencing physicians who disagree with state orthodoxy. The speed with which he issued his decision no doubt reflects the significance of the constitutional problems the law presents, as well as the negative consequences it would have for doctor-patient relationships.”
— Jenin Younes, Litigation Counsel, NCLA

“This Act is a blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the government-approved ‘party line.’ At no point has the State of California been able to articulate the line between permissible and impermissible speech, further illustrating how problematic the statute is. NCLA is pleased the Court recognized all the problems with AB2098 and enjoined this unconstitutional law.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (November 2, 2022) – A new California law signed by Governor Gavin Newsom empowers the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a complaint and motion for a preliminary injunction in Høeg, et al. v. Newsom, et al., asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect.

NCLA represents five physicians licensed by the Medical Board of California (MBC), most of whom treat patients on a regular basis. Drs. Hoeg, Duriseti, Kheriaty, Mazolewski, and Khatibi allege Assembly Bill (AB) 2098, signed into law on September 30, 2022, violates their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. The law not only interferes with the ability of doctors and their patients to freely communicate, but it has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views. Several Plaintiffs have experienced threats from other doctors and individuals on social media to use AB 2098 to have their licenses taken away, an obvious attempt to suppress the doctors’ speech. They are being put between a rock and a hard place, fearing repercussions for acting in their patients’ best interests by honestly giving them the information they believe their patients need in order to make informed care decisions.

In safeguarding Americans’ rights to free speech and expression, the First Amendment applies not only to the expression of majority opinions, but to minority views as well. U.S. Supreme Court and Ninth Circuit precedents highly protect speech uttered in the context of the doctor-patient relationship, recognizing a state interest in free and open communication between doctors and patients. AB 2098 deprives Plaintiffs’ patients of their First Amendment rights to receive advice and hear treatment options unfettered by professional discipline fears.

The term “contemporary scientific consensus” is undefined in the law and is arguably undefinable, which violates Plaintiffs’ Fourteenth Amendment rights to due process of law. Practically speaking, no doctor can know, at any given time, the “consensus” of doctors and scientists on various matters related to prevention and treatment of Covid-19. AB 2098 is thus also void for vagueness. Even if consensus could be defined and known, scientific and medical progress is made when doctors can use their own judgment based on their knowledge, experience, and research, and their patients’ individual circumstances. They should not be bound by a so-called consensus that will always lag the science. AB 2098 also subjects Plaintiffs to discipline and negative professional consequences (including loss of license) for conveying non-consensus messages to their patients. For this reason, the new law practices viewpoint discrimination and creates a severe chilling effect, in direct violation of the First Amendment.

The district court should rule AB 2098 unconstitutional and prevent the government and MBC from enforcing it.

NCLA released the following statements:

“California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country. That this shocking bill passed through the state legislature and was signed into law by Governor Newsom 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 ability of those who dissent from the government’s view to express their own opinions. We have no doubt that courts will see this unconstitutional law for what it is and strike it down.”
— Jenin Younes, Litigation Counsel, NCLA

“Beyond being an unconstitutional infringement on physicians’ First Amendment rights, the law will interfere with the sacred doctor-patient relationship. As physicians, it is our duty to be honest and transparent with our patients. The text of AB 2098 ironically already contains false information about Covid-19 vaccine effectiveness. Physicians will find themselves in a very difficult position of needing to choose between saying what they truly believe, saying what they think the medical board wants them to say, or simply staying silent. This law will have a poisonous effect on the doctor-patient relationship by diminishing patients’ trust in their doctors and by disincentivizing full honesty from doctors, making their job of caring for patients to the best of their ability even more challenging.”
— Tracy Høeg, M.D., Lead Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.

“AB 2098 is unconstitutional, infringing the First Amendment free speech rights of physicians and harming the doctor-patient relationship. A physician with a gag order is not a physician you can trust. Progress in science and medicine will be stifled by this law, which will drive good physicians out of California, ultimately harming patients.”
— Aaron Kheriaty, M.D., Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document