AB-2098 is an unjust law and it is our duty to oppose it

Today AB-2098 went into effect as law in California. This is the law that will empower the Medical Board of California to revoke the licenses of physicians who disseminate “Misinformation” or, as the bill says “false information that is contradicted by contemporary scientific consensus” on COVID-19.

I am both a practicing physician in California and an epidemiologist who has published numerous peer reviewed articles on COVID-19 transmission, vaccine risks and benefits and evidence for masking children. During the pandemic, repeatedly what has been called “scientific consensus” has later been shown to be false. It was the physicians and scientists (and other smart people; you really didn’t need any specific credentials) who were most up-to-date on the data who saw there was no consensus and they usually saw it from the beginning… because the error in thinking was the same: people (our public health leaders) were too quick to declare there was a consensus. Probably the most famous example was the claim vaccines stop transmission. Second, there was the idea masks effectively stop transmission. Our own CDC director said they could do this by “by more than 80%”. My understanding is this statement was based on the results of a telephone survey… and was a far cry from a randomized study, which so far have found no to little (in Bangladesh, though even that has been called into question) efficacy of masks against COVID-19. Then there was the myth that in adolescent boys and young males post COVID myocarditis was more common than post vaccine- also shown to be false. All of these are now disproven and, if AB-2098 had been in place 1-2 years ago, stating the above, which initially went against consensus but turned out to be correct, may have resulted in California physicians unjustly losing their licenses.

Are we really incapable of learning from the past? Very often it feels like it, but to be honest, we don’t even need to bring up the myriad examples in medicine and science where the dominant narrative of the day went on to be proven false (after all, disproving widely held beliefs is science)…. We can simply see now that some of the text of the bill is basically always inaccurate: The bill text says “unvaccinated individuals are at a risk of dying from COVID-19 that is 11 times greater than those who are fully vaccinated”. Well, this number is changing all the time- it’s actually much higher than 11 xright now overall. But if you look at the data, they don’t include anyone under 18 and specifically for the 18-64 year olds the risk differential is much lower from the last numbers we were given: around 4-fold for 30-64 year olds and look at the rate for 18-29 year olds!

Also, regurgitating these numbers will not allow physicians to explain that the data are confounded by differences in underlying health between boosted/bivalent boosted and unvaccinated or to convey the absolute risk, which has been sharply decreasing (the rate of death was at zero for both vaccinated and unvaccinated the last time these numbers were updated…). To be clear, at any age, these data put out by the CDC are not a measure of vaccine efficacy against death from COVID-19. We have no randomized data to answer this question about mortality except this preprint looking at mortality data from RCTs of the primary series put out by my friend Christine Stabell Benn & colleagues, where power was small but no significant effect was found of mRNA vaccines against overall mortality or COVID-19 mortality at a time of much lower population immunity.

I think we are far from being able to say there is “scientific consensus” on the current efficacy of the primary series or boosters or bivalent boosters - period, especially given such a high estimate of current infection-based immunity (in November 2022 up to 94% of the population were estimated to have been infected in the US.. though this is a based on a model).

The text of AB-2098, as it stands, reads like a script that physicians are supposed to say that is perpetually incorrect, misleading and lacking context and individualization. It requires no knowledge of the law to see how problematic it is for a government to script a physician’s speech in a way that ignores all context and individualization.

Next, we have this line in the text of the law that says “safety and efficacy of COVID-19 vaccines have been confirmed”. What does this mean exactly? What are physicians allowed to say? For example, what about risks of post-vaccination myocarditis in including death as published in the New England Journal? What about the on average higher chance of a young adult male of having myocarditis from a booster than having a COVID-19 hospitalization prevented from one? And what about our own CDC reporting in the Lancet 27% of post vaccination myocarditis cases require ICU admission? What about the fact even the NEJM is published data finding total lack of vaccine effectiveness against infection by 4 months in (previously uninfected!) 5-11 year olds?

Under AB-2098… what exactly are we allowed to and not allowed to say?

And this is the crux of the problem with the bill, actually, as Laura Powell, my good friend and our local counsel and attorney in Høeg v. Newsom, has so effectively pointed out on multiple occasions: “the law’s vagueness renders it unconstitutional”. Physicians who are uncertain about what they are allowed to say will “self silence”. In other words, it will have a chilling effect on physician speech, which will prevent physicians from sharing their full informed opinions with their patients.

My co-plaintiff and friend, physician medical ethicist, Dr. Aaron Kheriaty probably explained this best on Dr. Drew but, if physicians are not free to give their fully-informed opinions, this infringes upon patients’ rights to receive information. I hope people understand how my co-plaintiffs and I- as well as most physicians opposed to AB-2098, understand this intuitively: if physicians hold back their honest, informed advice, it is the patients who pay the price. This is critical to understanding our opposition to AB-2098.

As the ACLU of Northern and Southern California have described in their amicus brief in opposition to AB-2098 “Given the ambiguities in the reach of AB 2098 highlighted by Plaintiffs, see MPI at 23–27, physicians will be loath to speak their minds and share their opinions with patients about a rapidly evolving disease with many unknowns.” They go on to describe the existing laws in place in California to protect patients and how AB-2098 will not will not add protection “The State has at its disposal existing narrowly tailored laws that govern unprofessional conduct to the full extent tolerated by the First Amendment”.

A Covid-specific law which is vague in nature will not increase patient safety-or add to the existing laws already protecting Californians- but will very likely decrease health and safety by interfering with doctor-patient communication. Jay Battacharya and Aaron Kheriaty did a great job discussing just this in a short segment with Reason Magazine; this is a must-watch if you’re interested in AB-2098. The effect of this bill will be physicians become fearful of sharing individualized, nuanced, up-to-date information… which, ironically, is exactly what is required of us to do our job.

So why did I say AB-2098 is an unjust law? Because I was thinking about what Martin Luther King Junior wrote about just and unjust laws from jail in Birmingham in 1963: “Any law that uplifts human personality is just. Any law that degrades human personality is unjust.” (I have to thank Dr. Aseem Malhotra for reminding me of this letter)

I think AB-2098 is emblematic of a growing problem during the COVID-19 era: obsequiousness to a vague higher power instead of servitude to the person in front of you who needs your help. This may take the form of not allowing a dying person to be with their loved ones or something as simple as unmasking so a deaf or hard of hearing patient can read your lips. It can also be having a job where you are in a position to stop a college or other booster mandates that are not evidence-based, but instead you are fearful, take the easy road and protect yourself and do nothing.

As John Stuart Mill said “Let not anyone pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion… He is not a good man who, without a protest, allows wrong to be committed in his name.”

My impression is AB-2098 feeds into this dehumanizing culture, where it is okay to look away and do nothing rather the help or speak up when there is wrong doing or you have the ability to help. This mentality and AB-2098 I think does degrade “human personality” and degrades medicine. It is unjust to physicians and patients alike.

I am the lead plaintiff in Høeg vs. Newsom and we have an amazing team of physicians opposing this bill including Ram Duriseti, Pete Mazolewski, Aaron Kheriaty and Azadeh Khatibi. Our legal team is led by attorneys Jenin Younes and Laura Powell. We’re all ready to share our opinions on AB-2098 and doing so in a documentary being directed by Dr. Khatibi.

But what do you think about AB-2098? Is it a law you are looking forward to seeing go into effect or not and why? (you don’t have to agree with me)

Also, I shared a lot of information here… please let me know if I got something wrong!

Happy New Year!