Here is a bit of news involving Democratic presidential hopeful Robert F. Kennedy, Jr. that, unlike his antisemitic remarks and the unfortunate soundtrack during one of his appearances, didn’t exactly go viral. Earlier this week, the 9th Circuit Court of Appeals heard oral arguments in a case against a California law that was passed last year to prohibit physicians from spreading misinformation about Covid. Robert F. Kennedy, Jr. has been a key figure in the fight against this law.
It’s not hard to see why this wasn’t exactly headline material. The pandemic officially ended in May, but Covid news fatigue set in long before that. Yet this particular case is worth paying attention to because the people who oppose California’s Covid misinformation law have expanded their areas of interest. Their efforts could lay the groundwork to give contrarian physicians broad authority to go rogue on all kinds of medical issues, from the administration of routine childhood vaccinations to reproductive health, gender-affirming care, and beyond.
After a judge issued a preliminary injunction against the law, RFK Jr. tweeted, “Huge win! This is not only a victory for California doctors, but for professionals and citizens around the world in this battle for freedom.”To understand why, you need some context. In early 2022, California state assembly member Evan Low introduced AB 2098, a bill that would allow the state medical board to discipline doctors who promoted false information about Covid—say, by claiming that unproven treatments could cure or prevent the disease, or that the vaccines were dangerous. The bill garnered broad support from the healthcare sector, including from the California Medical Association, the state lobbying group that represents physicians. California governor Gavin Newsom signed it into law last September.
That level of support is remarkable since physicians don’t typically love being told that there are certain things they can’t say. But the law is quite specific in what it does and does not deem to be misinformation, as California physician Nick Sawyer recently pointed out in a MedPage Today op-ed:
In his signing statement, Newsom specified that the bill 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.” He further added, “This bill does not apply to any speech outside of discussions directly related to Covid-19 treatment within a direct physician-patient relationship,” and that discussing emerging ideas or treatments, including risks and benefits, “does not constitute misinformation or disinformation under this bill’s criteria.”
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