Introduced in February 2022 by California assembly member Evan Low and now awaiting the signature of the governor, Gavin Newsom, the bill designated as AB 2098 would allow state medical boards to punish physicians who spread misinformation or disinformation regarding Covid-19 and its treatment options. The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care” and “disinformation” as misinformation provided with “malicious intent or an intent to mislead.” Jokes about a Covid-19 “ministry of truth” aside, the bill represents an alarming push to create scientific consensus through government force rather than open debate and the gradual accumulation of evidence.
The most obvious problem with AB 2098 is the bill’s assumption that a term like “scientific consensus” is a specific enough guideline for tracking and punishing misinformation by medical professionals. This is a particular problem for topics relating to Covid-19; there may be consensus in a rough sense, but the finer details often remain contentious. For instance, N-95 masks seem to be the only type of facial covering that significantly reduces viral transmission, but health agencies, even when conceding the superiority of those masks, continue to promote broad public masking, even with inferior cloth masks, for unspecified reasons. One could argue that this falls under the vague notion of misinformation. Or take the use of coronavirus vaccines in children: vaccination may have been broadly beneficial, but the degree to which most children benefit is a topic of dispute, and health agencies’ insistence on younger and younger children receiving a shot has sparked concerns of significant side effects. A physician could run afoul of the state’s vague misinformation regulation merely by reviewing the nuances of pediatric vaccination with concerned parents.
A scientific consensus can be overturned abruptly by new evidence of better quality. A daily aspirin was a mainstay of heart-attack prevention for decades, until an update by the U.S. Preventive Service Task Force advised that the overall benefit of this practice was negligible. The USPSTF also updated the age guidelines for breast-cancer screening—a move that professional societies hotly contested even after the printing of the final recommendations in 2016. Perhaps most applicable to Covid-19, optimal vaccination practices for influenza took decades of global collaboration to develop. Scientific “consensus” is an ever-shifting designation.
It is not hard to imagine AB 2098 creating yet more confusion about the pandemic if providers punished today turn out to align with tomorrow’s consensus. Dr. Jay Bhattacharya, for example, drew the ire of many medical and public-health professionals when his views on country-wide lockdowns diverged with mainstream opinions. Though later evidence that lockdowns did more harm than good vindicated Bhattacharya, under AB 2098, he could have been punished for these views.
AB 2098 does get one thing right. The bill states: “The spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk.” Yet the very next line says that “[m]ajor news outlets” have reported that health-care professionals are among the “most dangerous propagators of inaccurate information.” This is, to put it mildly, a strange juxtaposition. Legacy media outlets have amplified plenty of misinformation throughout multiple stages of the pandemic. CNN patted itself on the back in 2021 for highlighting physicians who overstressed the harms of vaccination, but in 2020 it exaggerated Americans’ anxieties about returning to work without a vaccine and played up fears that rushed vaccines would be unsafe. Meantime, Fox News touted the effectiveness of hydroxychloroquine in combatting Covid-19, prior to systematic reviews demonstrating that the drug was, at best, ineffective.
Given the rapidity with which narratives have changed over the course of the pandemic, it’s unclear how California lawmakers expect professional boards to provide accountability. Masks were useless, then required, then required only for health-care professionals. Vaccines were supposed to wipe out Covid, then merely to reduce serious illness and hospitalization. Lockdowns were supposed to flatten the curve, then slow the spread, then achieve zero Covid; now the conventional wisdom is that Covid is an endemic disease requiring perpetual booster vaccines. And let’s not even get into the politically charged evolution, in both professional circles and mainstream media, of the lab-leak theory.
California, like many other areas of the country, faces a significant shortage of health-care staff, and AB 2098 would complicate this problem. License suspensions, practitioners moving out of the state due to frustrations with the new law, and time wasted on appeals of false accusations will only worsen the shortage.
Governor Newsom—who previously promoted some misinformation himself—has been relatively silent on AB 2098 thus far. He has until September 19 to decide whether to sign it. With physicians’ freedom and open scientific inquiry hanging in the balance, here’s hoping that he will leave the bill in the dustbin where it belongs.