California must stop passing dubious laws


All elected officials in California take an oath of office and pledge to uphold the Constitution, but that doesn’t stop them from passing or signing into law bills that blatantly violate it.

The latest example is Assembly Bill 2098, which threatens physicians with career-ending charges of “professional misconduct” for saying anything to their patients about the COVID-19 virus or vaccines “that is contradicted by contemporary scientific consensus contrary to the standard of care.”

AB 2098 designates state medical boards as enforcers of this troubling law by authorizing the Medical Board of California to sanction or revoke the licenses of doctors judged to be veering from the “scientific consensus.”

As everyone has witnessed for three years, the “scientific consensus” on COVID is not a static entity. New studies and new evidence related to a new virus or variant are constantly emerging. Therefore it is extremely unwise to attempt to enforce a state law that dictates to medical professionals what they may or may not say to their individual patients.

But beyond unwise, the law is a clear violation of the First Amendment, which prohibits the government from “abridging” the freedom of speech. Even where states have been permitted by the courts to have laws that limit First Amendment rights, the U.S. Supreme Court has required “strict scrutiny,” demanding that the laws be narrowly tailored to accomplish a permissible purpose. For example, in 2011 the justices struck down a 2005 California law that banned the sale of violent video games to children, holding that it was a violation of the First Amendment rights of the video game makers. The case is Brown v. Entertainment Merchants Association.

In May, a Los Angeles Superior Court judge struck down a California law that required companies to include a quota of women on their boards of directors, ruling that the law violated the equal protection clause of the California constitution. The state indicated immediately that it would appeal the decision, extending the costs for all involved, including taxpayers, to fight in the courts over a law that plainly discriminates on the basis of gender.

In December, a federal judge struck down a politically motivated law cooked up and eventually signed by Gov. Gavin Newsom that would have allowed private citizens to sue the manufacturers of illegal guns. The law was closely modeled on a Texas law that allowed private citizens to sue abortion providers, apparently in the belief that it would embarrass the U.S. Supreme Court to uphold one and strike down the other.

U.S. District Judge Roger Benitez rather sarcastically quoted Newsom’s criticisms of the Texas law in his decision striking down the California law. “‘It is cynical.’ ‘It is an abomination.’ ‘It is outrageous and objectionable.’ ‘There is no dispute that it raises serious constitutional questions,’” Benitez wrote.

All laws are limitations on freedom to one extent or another, and that’s why constitutional government has explicit requirements for the approval of new laws by elected officials as well as constraints on the power of those officials. Limits on government power are what freedom is made of.

AB 2098 will be challenged in the courts, as it should be. Medical boards are already empowered to investigate unprofessional conduct. We can’t have the government dictating what doctors may say.

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