I don’t often take a two-week vacation, and, on those rare occasions that I do (e.g., 25th and, this year, 30th wedding anniversaries), when I return and have to sit down to figure out what my first post after vacation will be about I sometimes struggle. This time, though, much of the time that I was away my Internet access was so spotty and slow that I was actually cut off from the world way more than normal and started to lose track of what was going on, which was not a bad thing. It didn’t take long, though, when I sat down to see a common theme bubbling up among antivaxxers and COVID-19 contrarians who deny that they are antivax but parrot antivax misinformation that increasingly sounds like pre-pandemic old school antivax propaganda. This theme has been increasing attacks on AB 2098, a recently passed bill in California that is awaiting Governor Gavin Newsom’s signature.
According to MedPageToday:
A bill that would allow regulators to discipline doctors for spreading misinformation related to COVID-19 has been approved by California’s Legislature.
If signed by Gov. Gavin Newsom (D), the first-of-its-kind law would make California the first state to try to legislate an issue that has contributed to thousands of unnecessary hospitalizations and deaths during the pandemic, according to the American Medical Association, The New York Times reported.
The new law would designate the dissemination of false or misleading information to patients as “unprofessional conduct,” the Times noted, and thus subject to punishment by the Medical Board of California and the Osteopathic Medical Board of California.
The bill, known as Assembly Bill 2098 (AB 2098), states that the spread of misinformation about COVID vaccines has “weakened public confidence and placed lives at serious risk,” and that healthcare professionals are “some of the most dangerous propagators of inaccurate information” when it comes to COVID vaccines.
Personally, the one thing that surprised me is that, as of yesterday (four weeks after the bill was passed by the California legislature), Gov. Newsom has not yet signed it into law. Unsurprisingly, the usual suspects are not happy that this bill passed. For example, just two days ago, the Brownstone Institute published an article by Laura Powell titled “The Dystopian Vision of the Health-Information Police” about—you guessed it!—AB 2098. Just for yucks, I searched the Brownstone Institute website for other articles on AB 2098 and found lots of opprobrium:
- “Where Is the Bio-Fascist State Headed?” by Aaron Kheriaty, which only briefly mentions AB 2098 in the context of all sorts of other “fascist” laws on COVID-19 mandates and other public health laws
- “The Dangers of Compelled Belief” by Donald Boudreaux
- “The Case Against the Physician Gag Order” by Aaron Khariaty
You get the idea.
Elsewhere, Dr. Jay Bhattacharya, a Stanford academic, Senior Scholar at the Brownstone Institute, and one of the three writers of the Great Barrington Declaration (GBD), the “don’t worry, be happy” eugenicist call to let COVID-19 rip through the healthy non-elderly population in order to achieve “natural herd immunity” while using a mostly undefined strategy of “focused protection” to protect the elderly and others with chronic health conditions that put them at high risk for severe disease and death from COVID-19, likened AB 2098 to draconian lockdowns in Shanghai by the authoritarian Chinese government, while portraying himself a “victim” of “persecution” due to his stance on “lockdowns” and having helped draft the Great Barrington Declaration.
Meanwhile, on Twitter, there were the predictable cries of “censorship”:
There should continue to be an ongoing attack on CA’s AB2098 and the idea that promoting censoring thoughts it somehow a good and/or noble thing to do.
These ideas of censoring thoughts and legislation that limits thoughts should not be tolerated. https://t.co/DTHpTGxuKC
— Agnostic Libertarian (@AgnosticLiberty) September 25, 2022
Our victories at the Capitol this year were crucial in making that possible. We killed the four worst COVID bills and stopped every new mandate. And as pressure builds for Newsom to veto AB 2098, the terrible medical censorship bill, I’m hopeful we have one more victory to come.
— ❤️🇺🇲Princess_Diva33🇺🇲❤️ (@ChristyEB8) September 23, 2022
Appeals to “protect physician freedom of speech”:
— Carol Moreau (@CarolMoreau9) September 23, 2022
And, of course, an “authoritarian liberty grab”:
Be more melodramatic. Biggest babies on the planet. Read the bill, it affirms the medical board’s ability to do its job and keep patients safe. Facts don’t care about your feelings.
— Dr. Jon (@TheDrJon) September 25, 2022
Along with a likely astroturf campaign to persuade Gov. Newsom to veto AB 2098:
Time To Tell Governor Newsom
VETO AB 2098
We need a massive amount of calls, tweets and emails to make an impact. Please take the following action steps today!
1. Call Governor Newsom's office (916)445-2841
2. ONE MINUTE ACTION EMAIL
3. Tag @GavinNewsom Veto AB2098
— Ghazaal Sa (@GhazaalSa) September 23, 2022
There’s also been a bit of the old false “Nuremberg Code gambit” playing out as well:
So it was easy for me to decide to write about AB 2098. Specifically, I want to contrast the hysteria being fomented by antivaxxers and COVID-19 cranks about the bill with what the bill actually says and would do if signed into law, while providing a bit of context about how portraying attempts by government to protect consumers against false claims in medicine as “censorship” of physicians is nothing new.
AB 2098 was drafted in response to a very real problem, specifically the spread of dangerous misinformation by licensed physicians during the COVID-19 pandemic. Introduced in February by Evan Low and cosponsored by Assemblymembers Cecilia Aguiar-Curry, Akilah Weber, and Buffy Wicks, as well as by Senators Richard Pan and Scott D. Weiner, the law’s purpose as stated by Assemblymember Low in a press release was:
This bill declares that disinformation and promotion of COVID-19 misinformation and disinformation to the public as unprofessional conduct for licensed physicians and surgeons. Under this law, California Medical Boards will be given the tools necessary to bring discipline actions against a licensee. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore must be held to account. The spreading of misinformation, of inaccurate COVID-19 information, contradicts that responsibility and threatens to further erode the public trust in the medical profession and puts all patients at risk
The text of the bill as passed by the legislature on August 30 can be found here. First, the bill proclaims:
SECTION 1. The Legislature finds and declares all of the following:
(a) The global spread of the SARS-CoV-2 coronavirus, or COVID-19, has claimed the lives of over 6,000,000 people worldwide, including nearly 90,000 Californians.
(b) Data from the federal Centers for Disease Control and Prevention (CDC) shows that unvaccinated individuals are at a risk of dying from COVID-19 that is 11 times greater than those who are fully vaccinated.
(c) The safety and efficacy of COVID-19 vaccines have been confirmed through evaluation by the federal Food and Drug Administration (FDA) and the vaccines continue to undergo intensive safety monitoring by the CDC.
(d) The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.
(e) 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.
(f) The Federation of State Medical Boards has released a statement warning that physicians who engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license, and that physicians have a duty to provide their patients with accurate, science-based information.
(g) In House Resolution No. 74 of the 2021–22 Regular Session, the California State Assembly declared health misinformation to be a public health crisis, and urged the State of California to commit to appropriately combating health misinformation and curbing the spread of falsehoods that threaten the health and safety of Californians.
There is nothing in the above list of statements that I can argue with. These are examples of statements about COVID-19 that are demonstrably accurate that COVID-19 contrarian doctors frequently contradict, as described in (e). Indeed, as I have argued many times before, physicians who spread COVID-19 misinformation are automatically considered more credible than the average pundit by virtue of their professional status. Our MD and DO degrees, combined with our professional licensure by the state, automatically make us experts in the eyes of the public, whether we have relevant domain-specific expertise in COVID-19 and vaccines or not. Worse, a number of my colleagues have parlayed their professional credentials into a brand that, in the name of “freedom” and “questioning”, involves spreading flagrant misinformation about COVID-19 (and, increasingly, other medical topics).
Let’s take a look at relevant passage stating what this bill does. First, the legislative counsel’s digest states:
Existing law provides for the licensure and regulation of physicians and surgeons by the Medical Board of California and the Osteopathic Medical Board of California. Existing law requires the applicable board to take action against any licensed physician and surgeon who is charged with unprofessional conduct, as provided.
This bill would designate the dissemination of misinformation or disinformation related to the SARS-CoV-2 coronavirus, or “COVID-19,” as unprofessional conduct. The bill would also make findings and declarations in this regard.
Which is why, in Section 2, the AB 2098 explicitly states that spreading COVID-19 misinformation is unprofessional conduct:
It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.
Of course, where the rubber hits the road is in how “misinformation” and “disinformation” are defined. First, misinformation:
“Misinformation” means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.
“Disinformation” means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.
These are, of course, fairly standard definitions of “misinformation” and “disinformation”. I do note, however, that the definition of “misinformation” is different than in a prior version of the bill, which defined misinformation thusly:
“Misinformation” means false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.
To be honest, I like the previous definition better, as it makes it more clear that AB 2098 is not targeting potentially legitimate scientific disagreements over the practice of medicine, but claims that are both flagrantly and demonstrably false and dangerous to the public, such as antivax claims about COVID-19 and claims supporting COVID-19 quackery. Whichever definition you pick, however, let me just reiterate that it is a favorite trope of quacks and antivaxxers to claim that doctors “can’t” say anything that doesn’t adhere to medical “dogma”, lest they be excommunicated—or worse!—from the Church of Medicine. Such a trope intentionally ignores anything resembling nuance, in particular the part about how “contemporary scientific consensus” and “standard of care” actually encompass rather broad swaths of evidence and practices and how a physician has to be very far from that consensus and standard in order to enter the category of misinformation. Even then, because doctors tend to stick together and react in a very threatened manner whenever faced with any sort of regulations on their professional speech, even when the regulations are narrow and there’s little or no chance they’d run afoul of them.
Indeed, I’ve actually argued in the past that the bill doesn’t go far enough in that it limits itself to COVID-19 misinformation and quackery. I’ve long argued that state medical boards need to be empowered to discipline doctors for promoting quackery of all kinds. One has only to look at the examples of Stanislaw Burzynski in Texas and Rashid Buttar in North Carolina to see that even doctors who do far more than simply advocate quackery and antivaccine misinformation all too often manage to avoid sanctions by their state medical boards and keep their medical licenses. Be that as it may, state medical boards have long had the power to regulate professional conduct and define and sanction physicians for “unprofessional conduct”. There is thus value in explicitly defining spreading COVID-19 misinformation as being unprofessional conduct subject to state medical board regulation and discipline.
Of course, quacks have long wrapped themselves in the First Amendment when they misrepresented attempts to crack down on their conduct as assaults their “freedom of speech”. Unfortunately, a number of seemingly more reasonable and unquacky physicians have taken up the same call. What they fail to recognize is that it is relatively rare for a physician only to spread misinformation. Usually, they practice what they preach, so to speak. Pre-pandemic, Dr. Buttar, for instance, didn’t just claim that mercury in vaccines caused autism; he treated autistic children with his own “transdermal chelation therapy” quackery (which skeptics’ disparagingly dubbed “Buttar’s butter“) to “detoxify” them from the “mercury poisoning” that had supposedly made them autistic. Since the pandemic, “America’s Frontline Doctors”, who first made a splash in the summer of 2020 promoting hydroxychloroquine to treat COVID-19 but quickly added ivermectin to their list of miracle cures for COVID-19, don’t just publicly claim falsely that these drugs are highly effective against COVID-19. A year ago they were busted for running a telehealth prescription mill to sell them. Thus, sanctioning physicians for spreading misinformation and disinformation is reasonable given how rarely the practice of quackery doesn’t follow from the advocacy of quackery.
The bottom line is that AB 2098 is a relatively modest, targeted bill designed to explicitly define a power that the Medical Board of California arguably has always had with respect to regulating spreading dangerous health misinformation and disinformation as unprofessional conduct. Unsurprisingly, quacks, antivaxxers, and COVID-19 contrarians don’t see it that way.
“Censorship” of “thoughtcrimes”? Hardly.
Before I address the more outlandish criticisms of AB 2098, it is important to note that there are physicians alarmed by the bill who are not quacks, although, truth be told, who do lean to the COVID-19 contrarian side. For instance weeks ago, while I was still (mostly) incommunicado, Dr. Leana Wen wrote an editorial for The Washington Post titled “California’s anti-misinformation bill is well intentioned. But it’s a bad idea“. In it, she makes this astounding claim:
While well-intentioned, this legislation will have a chilling effect on medical practice, with widespread repercussions that could paradoxically worsen patient care.
Not coincidentally, the claim that the bill will have a “chilling effect” on medical practice is one that commonly pops up on antivax websites. The question, of course, is: How? How might this bill have a chilling effect on medical practice? Let’s see what Dr. Wen says:
The bill focuses on physicians accused of disseminating misinformation to patients under their care. (It does not extend to comments in the public domain, such as social media.) On a surface level, this is defensible: The expectation should be that doctors always abide by the gold standard of care. Therefore, those who deliberately give patients advice that counter established guidelines should lose their medical license.
The problem is that medical practice is rarely black and white. Much of the time, broad recommendations are intended to be tailored to the individual patient.
Ah, yes. The appeal to the “gray areas” of medical practice, the areas where the standard of care is not so clear. Also note how the bill does not apply to what doctors say in general on social media and legacy media, just what they say to patients in their practice. That’s how the bill addresses First Amendment concerns, even though arguably it is what many of these COVID-19 contrarian doctors say on hugely trafficked social media sites that is more damaging to public health than what they sell their patients, who are few in number compared to the people within reach of their public utterances.
Reading this introduction, I was curious what sorts of situations concern Dr. Wen; unsurprisingly, she provided examples regarding vaccines, basing her arguments on what she likely does not realize to be a favorite crank argument, namely, “Science changes, and how do we know that what this doctor is recommending today won’t be standard-of-care tomorrow?” For example:
Take the recent guidelines on booster shots. The Centers for Disease Control and Prevention has recommended that everyone 12 and older receive updated boosters. Most doctors would probably agree that elderly individuals should get the new booster right away. But many might advise — as I would — that it’s fine for some patients to hold off and time the booster closer to winter holidays. Some providers might not recommend boosters for children and adolescents, especially if they have already had the coronavirus.
These actions go against federal guidelines. 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?
To pre-empt: No. No, Dr. Wen. You would not be sanctioned for such a recommendation. Let’s look at the actual CDC recommendations for the new bivalent boosters for children aged 12 and older:
People ages 12 years and older are recommended to receive one updated Pfizer or Moderna (bivalent) booster.
- This includes people who have received all primary series doses and people who have previously received one or more original (monovalent) boosters.
- At this time, people aged 12 years to 17 years can only receive the updated Pfizer bivalent booster.
On the main page there is nothing there about timing of vaccines for people over 12. However, if you use the “When Are You Up-to-Date?” tool, the following responses result in a recommendation for a bivalent booster:
- Age: 12-17 years old
- Moderately or severely immunocompromised
- Primary series: Pfizer-BioNTech
- Updated (bivalent) booster received: no
- Length of time since last COVID-19 vaccine: At least 2 months
Based on your responses, your child should get an updated COVID-19 booster.
Your child is considered up to date with their COVID-19 vaccines immediately after getting their updated (bivalent) booster.
So, no. Advising delay until winter would not get Dr. Wen sanctioned by the Medical Board of California, if she practiced in California. What Dr. Wen is engaging in is the logical fallacy known as an appeal to the extremes, in which she tries to make a reasonable policy seem unreasonable by citing a very extreme possible outcome that is highly unlikely. Alternatively, it could be a slippery slope argument, in which it is claimed that, if medical boards can regulate professional speech that is arguably outright misinformation, it won’t be long before they start regulating speech that is within the bounds of reasonable professional disagreement.
She gives another example:
Indeed, another lesson from covid is that science is constantly evolving. In a public health emergency, official guidance often lags cutting-edge research. Consider how long it took the CDC to acknowledge that the coronavirus is airborne. Should doctors have been censured for recommending N95 masks before they were accepted as an effective method for reducing virus transmission?
This one strikes me as disingenuous in the extreme. Surely Dr. Wen must know that AB 2098 is designed to combat harmful and dangerous COVID-19 misinformation being spread by physicians. An N95 mask is more effective at protecting a person against respiratory viruses than a surgical or cloth mask. It is simply ludicrous to think that the Medical Board of California would have taken action against a physician who in 2020 recommended a COVID-19 mitigation intervention more effective than the recommendation at the time. Surely she must know this.
Wen also brings up a hypothetical situation:
There could also be rare situations in which treatments that definitively do not work might still be prescribed. A colleague told me he prescribed ivermectin to treat covid-19 [sic], even though the antiparasitic drug isn’t effective against the disease. If he didn’t, his misinformed patients would have ignored his advice and obtained it anyway from a livestock shop, where the dosages intended for cows and horses could be deadly to humans. This action certainly deviated from what the California bill calls “contemporary scientific consensus,” but that physician shouldn’t have to fear for his license because he tried to reduce harm to his patients.
There is only one correct reaction to this:
No, seriously. If that patient had wanted to use acupuncture to treat COVID-19, would that physician have recommended it? Or homeopathy? This is the same sort of shruggie “What’s the harm?” attitude that has plagued our profession when addressing so much quackery and nothing more than a rationalization for not wanting to tell a patient no, which is often very uncomfortable for physicians, particularly cancer quackery. How many times have I heard the “What’s the harm?” argument when addressing, for example, Dr. Stanislaw Burzynski prescribing his ineffective antineoplastons concoction to patients with deadly cancers? Basically, the physician prescribed what he knew to be an ineffective treatment with a non-zero chance of causing harm in the name of “reducing harm”. Yes, that physician should potentially be subject to sanctions.
Dr. Wen then goes on to make a jaw-droppingly bad false equivalence, followed by a slippery slope argument:
In a way, though the California bill was introduced by Democratic legislators, it is not unlike the Trump administration’s Title X “gag rule,” which barred health-care providers who worked in clinics that received federal funding from referring patients for abortion care. I strongly opposed the Title X gag rule for the same reason I oppose AB 2098: Both censor what doctors can say to our patients. Both represent political interference with the practice of medicine.
Both measures could also set a precedent with downstream repercussions. Imagine if anti-vaccine legislators introduced a bill that forbids pediatricians from offering parents information on routine childhood immunizations. Imagine if states that already limit reproductive health services or transgender care prohibit health-care providers from discussing options with their patients.
Politicizing the practice of medicine is a legitimate concern but do not justify false equivalences and another appeal to an extreme. The difference, of course, is that the “gag rule” tried to straightjacket physicians into precluding actual evidence-based care for their patients. It’s all well and good that that Dr. Wen correctly opposed the “gag rule”, but it’s not so great that she either doesn’t see the difference between the gag rule and AB 2098 or ignores the difference in the pursuit of making her point. In addition, surely Dr. Wen must already be aware that antivaccine legislators are already engaged in trying to undermine vaccination programs, as their endgame has always been the elimination of all vaccine mandates, be they for school, daycare, working in a hospital, or anything else. This has been true since long before the pandemic; antivaxxers just see the pandemic and the increasing power of the antivaccine movement as a result of the pandemic as their golden opportunity to realize a long-time dream. Surely she must be aware that legislators are already furiously trying to criminalize gender-affirming care of transgender adolescents in a depressingly large number of states, which goes beyond just putting a physician’s medical license at risk. Dr. Wen’s comparisons are misleading at best.
Specifically regarding her invocation of the “gag rule,” I like to cite Noah Louis-Ferdinand, Comms Director for Voices for Vaccines:
Thirdly: that bill literally stopped people from talking about a specific subject and had nothing to do with medical consensus.
It was moral opposition to abortion, not rooted in science. AB 2098 and its authors are longtime vaccine advocates with a proven public health record.
— Noah 🧡 (@Michigan_Noah) September 18, 2022
Also, doubly this:
In sum, I find the criticisms levied by Drs. Damania and Wen to be unrealistic.
If they wanted to cite analysis from legal scholars about how this bill might play out, they'd have a more robust case. But the supporters of AB 2098 have provided a much more robust defense.
— Noah 🧡 (@Michigan_Noah) September 18, 2022
Exactly as I said, in particular, about how antivaxxers have long been trying to get bills to their liking introduced into state legislators and now see an opportunity to realize their endgame, the elimination of all vaccine mandates, in at least some states.
Deeper into the morass: Conspiracy theorists vs. AB 2098
Let’s now look at what Dr. Jay Bhattacharya, one of the main signatories of the GBD, had to say about AB 2098 in April. He basically used the same sorts of arguments that Dr. Wen did more recently, but cranked up to 11, in which he likens AB 2098 to the power of authoritarian regimes like China and the former Soviet Union. For example:
The ultimate effect of the bill will be to chill public criticism by California doctors of mistaken government public health diktats since few will want to put their licenses in the hands of the very public health officials with whom they disagree over the interpretation of science. Even legitimate dissent from public health orthodoxy by licensed doctors may be excised from the public square as a consequence.
That’s exactly the same argument that Dr. Wen made. Then there’s this:
And that’s to say nothing of the impact this bill would have on the practice of medicine. Doctors have an obligation to treat each patient as an individual. Yet the California Assembly bill turns doctors into agents of state public health rather than advocates for their patients.
History provides abundant examples of what happens when the state regulates science. In the former Soviet Union, Stalin’s favorite geneticist, Trofim Lysenko, dominated biology and the agricultural sciences. Lysenko rejected Mendelian genetics in favor of his own theory that plants could inherit acquired characteristics. Stalin empowered him to destroy the careers and lives of geneticists who opposed him, causing many to suffer secret arrests and even death. When his theories failed, the consequence was mass starvation in Russia. The Chinese Communists also adopted his beliefs—at the cost of the starvation of 30 million.
This is a subtype of the “appeal to extremes” fallacy that I like to refer to as the invocation of Lysenko’s ghost. As you might recall, Trofim Lysenko was a Soviet scientist who rejected Mendelian genetics in favor of his own ideas. After he became director of the Institute of Genetics within the USSR’s Academy of Sciences, Lysenko used his political power to suppress dissent, discrediting, marginalizing, and imprisoning his critics while elevating his anti-Mendelian theories to state-sanctioned doctrine. The analogy is, of course, custom-made for cranks like Dr. Bhattacharya, given how the Soviet embrace of Lysenkoism greatly exacerbated and prolonged the famine and mass starvation in the USSR that resulted from Stalin’s policies in the 1930s, making it an attractive false historical analogy for right wing cranks like those at the Brownstone Institute, for which Dr. Bhattacharya is a “senior scholar”. The emotive example misleadingly conflates being sent to the gulags with possibly losing one’s medical license, even as Dr. Bhattacharya tries to point out the difference by adding that “California lawmakers thankfully do not have the power currently being exercised in Shanghai”.
Unsurprisingly, over at the Brownstone Institute, Laura Powell, founder of Californians for Good Governance, rants about gray areas of medicine:
Assembly Bill 2098 would empower the Medical Board of California to go after the licenses of physicians who disseminate “misinformation” or “disinformation” regarding Covid-19 [sic]. The bill in its latest iteration defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” The inscrutability of this definition lies at the core of the bill’s opponents concerns.
No clear scientific consensus exists with respect to this novel virus, and even if it did, it may be proven incorrect later. Without clear guidance regarding what would constitute “misinformation,” physicians can only guess if they risk losing their licenses for expressing their good-faith disagreements with positions of public health officials. Even if in practice, the Medical Board only applied the law to speech that the First Amendment does not protect, the law’s vagueness would render it unconstitutional, because it would tend to cause doctors to censor themselves.
This is basically the same argument made by Dr. Wen, just (again) cranked up to 11. I like to refer to Dr. Taylor Nichols, one of the founders of No License for Disinformation, a group dedicated to combatting COVID-19 misinformation and disinformation and a major backer of AB 2098:
This likely explains the uptick in attacks on the bill. Gov. Newsom has only until September 30, which is this Friday, to veto the bill, and if he does nothing AB 2098 will automatically become law on October 1.
I also like to cite a long Twitter thread by Noah Louis-Ferdinand, Comms Director for Voices for Vaccines, who notes a number of disingenuous, misleading, and outright false claims being made about AB 2098. His arguments are similar to mine, but he adds other context.
For example, he notes:
Currently, the state medical board is not empowered to pursue COVID complaints. Prior to COVID, 80% of complaints were dismissed out of hand and only 3% resulted in any disciplinary action.
The board hasn't even taken action against Simone Gold, a clear disinformer…
— Noah 🧡 (@Michigan_Noah) September 18, 2022
Let’s just say that there is no “epidemic” of cases in which the Medical Board of California has taken action against the licenses of physicians engaged in spreading misinformation. Indeed, if Simone Gold, an outright COVID-19 grifter who was convicted and sent to prison for participating in the January 6 insurrection, complained about being placed in solitary confinement as quarantine for eight days because she refused to be vaccinated against COVID-19, and is a founder of America’s Frontline Doctors, hasn’t faced discipline yet from the Medical Board of California, it’s hard to make a serious argument that AB 2098 will lead to a newly empowered fascistic board to start persecuting brave maverick doctors selling COVID-19 misinformation, quackery, and antivaccine conspiracy theories.
STILL: only 1 in 5 state boards have disciplined EVEN A SINGLE PHYSICIAN (!!!) for COVID misinfo.
And to the contrary, the majority of states have one or more bills on the books that either protect COVID misinformers from disciplinary action or enable their quack treatments… pic.twitter.com/MueoZX4BMa
— Noah 🧡 (@Michigan_Noah) September 18, 2022
Then there are the logistics of actually bringing a case against a doctor before the medical board. Noah cites the example of masks, dismantling some arguments made by Dr. Zubin Damania, better known by his social media name ZDoggMD in a recent video:
to action, whereas mask advice changed in the span of a few months.
Such an unfeasible, uncertain case would probably be dismissed.
Zdogg gives another example of saying that he wouldn't advise masking a two year old. Would he lose his license for that?
— Noah 🧡 (@Michigan_Noah) September 18, 2022
He also notes that one reason why medical boards have been reluctant to pursue such cases will not change if AB 2098 becomes law and that this bill only applies to professional speech in the context of providing care to patients:
@MichelleM_Mello, Stanford Law Professor who is cited in NYT about the bill, states: “Initiatives like this will be challenged in court and will be hard to sustain."
So giving boards a tiny bit more power will not encourage them to start picking battles they won't win. pic.twitter.com/sbaXgM7l0n
— Noah 🧡 (@Michigan_Noah) September 18, 2022
Zdogg gives another example of saying, if he tells his patient they shouldn't close schools, will he lose his license?
Almost certainly not. For one: doctors usually advocate for this kind of thing on local boards (that's free speech, not professional care, and is unaffected).
— Noah 🧡 (@Michigan_Noah) September 18, 2022
He also correctly points out that the concept of “medical consensus” and “standard-of-care” are already defined concepts in law:
But as @NickSawyerMD argues, medical consensus is a well-understood concept referring to reproducible evidence.
In the case of closing schools, 'evidence' relies on interdisciplinary analysis that would make it hard to define 'standard of care' in actionable terms.
— Noah 🧡 (@Michigan_Noah) September 18, 2022
I actually agree that the vagueness of the definitions of misinformation and disinformation in the bill will likely make its effects less robust than is needed. That is why I like the definition of misinformation in an earlier version of the bill that is “contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee”. Such a definition makes it clear that we aren’t talking about reasonable medical disagreements.
The bottom line is that, for all its shortcomings, AB 2098 explicitly states that spreading COVID-19 misinformation and disinformation in medical practice constitutes unprofessional conduct, thus making clearer a power that the Medical Board of California has always had but was reluctant to act on. The misrepresentation of the bill as some sort of Stalinist Lysenkoist assault on physician autonomy is an echo of the “health freedom” arguments of quacks past going back decades in response to any attempt by any governmental entity to put a stop to quackery. I fully expected that Brownstone Institute flacks like Dr. Bhattacharya and Kheriaty, for instance, would echo such “health freedom” tropes that portray the autonomy of doctors as correctly unfettered and any attempt to regulate medical practice as an unacceptable assault on free speech and physician autonomy. It’s disappointing that more reputable physicians are parroting the same tropes that we’ve been dealing with for decades while apparently not realizing what they are.
It is, unfortunately, no longer surprising, that physicians who should know better are echoing complaints of “cancel culture” in response to bills like AB 2098.