Governor signed SB 815 repealing AB 2098

By John Woolfolk, MERCURY NEWS

It came without fanfare or even explanation. But California has quietly raised the white flag on its controversial attempt to police what doctors say about COVID-19 vaccines and public health mandates.

Gov. Gavin Newsom on Sept. 30 signed legislation that repeals a Bay Area lawmaker’s bill that had become law a year earlier to penalize doctors deemed to have spread misinformation about the virus. 

The original law came amid a surge in tension over COVID-19 policies and alarm within the medical community over doctors who pushed unproven treatments and undermined trust in vaccines. But opponents pointed to what they said was a bigger issue: The muzzling of doctors’ First Amendment rights. 

“California’s COVID medical censorship law has been quietly repealed by the very same people who had ridiculously wanted it in place,” Dr. Azadeh Khatibi, a Los Angeles physician who was among doctors who were fighting the law in court, posted on social media. 

The bill Newsom signed last weekend, Senate Bill 815 by state Sen. Richard Roth, a Riverside Democrat, was a reauthorization of the Medical Board of California, which oversees licensed physicians. Roth said the bill “makes significant changes to promote patient rights and improve transparency and efficiencies at the Medical Board.” 

Consumer Watchdog lauded the new bill, saying it includes long-sought reforms to increase the voice of patients and their families in medical board investigations into harm caused by a doctor. 

“The governor’s signature on SB 815 gives Californians a voice and rights in the doctor disciplinary process that has left families silenced and with no accountability for patient harm for decades,” said Michele Monserratt-Ramos, a Consumer Watchdog patient advocate. 

But Roth and Newsom left unmentioned that SB 815 also struck from the law language added by Cupertino Assemblyman Evan Low’s Assembly Bill 2098. 

The stricken language focused on “unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19.” 

That was defined as “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.” 

The California Medical Association had sponsored Low’s bill. But it was opposed by some doctors who called it a violation of their free speech rights and unwarranted interference with their professional judgment. 

In signing AB 2098 last year, Newsom said he was comfortable with it “because it is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.” 

But Khatibi and other doctors immediately filed lawsuits challenging the law in court, one of which led to a preliminary injunction putting the law on ice until the litigation was resolved. U.S. District Judge William B. Shubb concluded the doctors were likely to win because the law was “unconstitutionally vague.” 

Roth said in an interview the language repealing AB 2098 wasn’t his and was added among amendments during the committee process. Whose idea it was he couldn’t say, but he assumed it came through the committee leaders and the governor’s office. But Roth, a lawyer, said it made sense, given that the preliminary injunction spelled doom for AB 2098. 

“When you lose a preliminary injunction you might as well start packing your bags,” Roth said. “I can’t tell you who flipped the switch on this because nobody told me, but it didn’t surprise me. It didn’t bother me.” 

Newsom’s news release on the raft of bill signings and vetoes that included SB 815 didn’t include any explanation why he signed it and his office indicated he had nothing to say about it. 

Jenin Younes, a lawyer with the Washington, D.C.-based New Civil Liberties Alliance, which is representing Khatibi and four other doctors in the case that won the injunction, said the bill signing followed signals from the Ninth U.S. Circuit Court of Appeals in another lawsuit that the state would lose there as well. 

“I’m guessing that between those two court cases, they preferred to retract it themselves than get another thrashing in court,” Younes said. 

Low, who authored last year’s bill, noted in a statement that “the Medical Board of California continues to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments.” 

Ironically, critics say, that was among the arguments they had made against approving AB 2098 in the first place.