California Gov. Gavin Newsom has signed legislation to repeal a portion of the state’s COVID-19 “misinformation” and “disinformation” law intended to punish doctors who refused to comply with the government’s narrative on masks, vaccines, and treatments during the pandemic.
On Sept. 30, the governor signed Senate Bill 815 repealing provisions in the law—under Assembly Bill 2098—that “expressly designate the dissemination of misinformation or disinformation related to COVID-19 as unprofessional conduct,” according to an analysis by the bill’s author, Assemblyman Richard Roth (D-Riverside).
A year ago when Mr. Newsom signed AB 2098, introduced by Assemblyman Evan Low (D-Campbell) and co-authored by then-Sen. Richard Pan (D-Sacramento) into law, he warned of a “chilling effect” other potential laws could have on the freedom of physicians and surgeons to effectively talk to their patients about the risks and benefits of treatments for COVID-19 but said he was “confident” the bill was “narrowly tailored” to apply only to egregious instances in which a doctor was acting with malicious intent or clearly deviating from the “required standard of care.”
Just days later, the law, which vaguely defined “misinformation and disinformation” as “unprofessional conduct,” was challenged in court. The law defined disinformation as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead” and misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
Dr. Aaron Kheriaty, a former professor of psychiatry and human behavior at the University of California–Irvine’s School of Medicine and director of the medical ethics program, was fired on Dec. 16, 2021, for refusing to get a COVID-19 vaccine, claiming he had natural immunity after contracting the illness and recovering from it.
He and four other doctors—Tracy Hoeg, Ram Duriseti, Pete Mazolewski, and Azadeh Khatibi—sued Mr. Newsom, state Attorney General Rob Bonta, and several administrators at the Medical Board of California.
“We were being discriminated against because we had a form of immunity that was equally good, in fact superior … compared to vaccine immunity,” Dr. Kheriaty told The Epoch Times.
“People with vaccine immunity were allowed on campus, and I was not.”
Judge William Shubb of the U.S. District Court for the Eastern District of California granted a preliminary injunction blocking the state from enforcing AB 2098, ruling that the statute’s “unclear phrasing and structure” could have a “chilling effect.”
Dr. Kheriaty said he’s glad SB 815 has negated the “misinformation” and “disinformation” provisions of AB 2098.
“This is a good victory, but we can’t rest on our laurels,” he said.
“We’ve got to be very vigilant because people who want to take control over medicine and intervene in the doctor-patient relationship are going to keep trying to find other angles.”
Dr. Kheriaty suspects the governor and state legislators realized when the preliminary injunction was granted that the court would most likely rule against AB 2098 and ultimately declare it unconstitutional.
“So, rather than getting slapped down by the court in ways that would have probably made the newspapers, they decided to quietly shuffle the law off the stage as a kind of embarrassment and hope that no one really noticed,” he said.
Attorneys for the five doctors have filed a motion for a summary judgment from the court.
“We would like to see the government lawyers have to argue in court in our favor … because the law has been struck down,” Dr. Kheriaty said.
“We would like to hear them publicly say that in court.”
Dr. Kheriaty said the case shows that because “scientific consensus” during the pandemic evolved quickly, doctors were punished for simply being ahead of the curve and expressing or endorsing ideas the rest of the medical community had not yet caught up with because they weren’t paying as close attention to the available research.
While AB 2098 attempted “to fixate a particular scientific consensus,” the court found scientific consensus to be an ill-defined legal concept, he said.
“The fact that this law was struck down is obviously meaningful to me … but it’s also concerning that this law was passed in the first place,” he said.
The U.S. Centers for Disease Control and Prevention (CDC) has since indicated that it should not discriminate between vaccinated and unvaccinated because vaccines don’t stop infection and transmission.
Natural immunity is “robust, durable, and long-lasting,” Dr. Kheriaty said. “So, I guess I lost my job for being nine months ahead of the curve.”
Mixing Politics With Science
In his book, “The New Abnormal: The Rise of the Biomedical Security State,” Dr. Kheriaty examines the “age-old problem” of mixing politics with science.
The book, he said, is about the biomedical security state melding an increasingly militarized public health apparatus with the use of digital technologies of surveillance and control, such as vaccine passports, and backing those two elements with police powers of the state and the declared state of emergency which allowed governors and the president to accrue additional extra-constitutional powers and “wield tremendous authority” effectively “micromanaging the lives of citizens.”
“Especially today, when science has a certain authority or prestige, political power wants to commandeer and weaponize science to achieve its aims, and that’s what you saw during the pandemic,” he said. “It’s what I call scientism.”
Scientism, he explained, tries to monopolize science and claim that it is the only valid form of knowledge and then appoints its preferred “so-called experts” to speak in the name of science.
“That has nothing to do with science. That’s a power move. In fact, it’s a totalitarian move because that’s what totalitarian regimes do: They monopolize what counts as knowledge and rationality, and they exclude anyone who doesn’t endorse their ideology,” Dr. Kheriaty said.
“That was done with science during the pandemic. Science was weaponized.”
Scientism is “totally antithetical to science,” which relies on open-ended inquiry, hypothesis, conjecture and debate, evidence, reputation and the willingness to change one’s mind, he said. “And so, trying to fix a particular ‘consensus’ as unassailable completely contradicts the whole ethos of scientific investigation. Science advances precisely by challenging conventional thinking or consensus or what we take to be common sense.”
Prior to the lawsuit, Dr. Kheriaty challenged the University of California system’s vaccine policies in an opinion article published in the Wall Street Journal “just to try to get a conversation going,” he said.
But the UC Irvine authorities weren’t interested in discussion or debate and fired him for allegedly refusing to comply with the vaccine mandate after they twice declined a medical exemption signed by his physician and accused him of unprofessional conduct.
“I was a threat,” he said. “So, it was easier just to shut down the debate.”
The state then used him as an example to send a message to other doctors who dared to step out of line, he suggested.
“You don’t have to fire too many people before it has a real chilling effect on everyone else,” he said.
“Obviously, other people could look at what happened to me, and it was very clear: ‘OK, this is one issue that you just don’t touch. You don’t open your mouth and speak your mind unless it’s to endorse the position that the university wants to take.’”
Dr. Kheriaty now runs a private practice in Orange County. He is also a scholar at the Ethics and Public Policy Center, a Judeo-Christian based group in Washington, D.C., the chief of medical ethics at The Unity Project, a non-profit medical freedom and parental rights group, and the Brownstone Institute has supported his work in public health.
“So, I’m very happy,” he said. “I’ve landed on my feet. I don't really have a desire to go back to the university.”
Dr. Kheriaty is also a plaintiff in the Missouri v. Biden case, alleging the federal government violated the First Amendment by pressuring social media companies to censor disfavored speech.
'Legislative Power Grab'
Dr. Robert Malone, who helped invent the technology used in the Moderna and Pfizer vaccines, told The Epoch Times on Oct. 2 that AB 2098 would not likely have survived a legal challenge and is “an embarrassment for Newsom” and his presidential ambitions.
Dr. Malone called AB 2098 a “legislative power grab” from the state medical board to the legislature and criticized state lawmakers for interfering in the practice of medicine.
To have COVID-specific legislation on regulating medical standards is “bizarre” in the first place because there is already “perfectly adequate” legislation regulating medical standards, he said.
He said Mr. Low’s Sept. 12 statement that the “update” will still hold doctors accountable suggests the new law is “a wolf in sheep’s clothing,” he said.
“Fortunately, with this update, the Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments,” Mr. Low said in the statement emailed to The Epoch Times.
A doctor with an adverse finding or even a pending investigation against their medical license cannot transfer their licenses to another state, so physicians in this situation are forced to decide whether to leave the state before it has an opportunity to impose an action against their license or run the risk of losing it, “which would make it impossible for them to leave the state,” said Dr. Malone.
“Independent thinkers—the very people that you most want to have medicine—are being run out by the state legislative policies,” he said. “It means that people with no qualifications to practice medicine are mandating how medicine must be practiced directly.
Dr. Malone, the chief medical officer at The Unity Project, is known for expressing concerns about the possibility of immune imprinting. He claimed vaccines provide poor protection over time, with some indications the shielding turns negative.
The “politicization of medicine,” during the pandemic years was “bad medicine,” he said, noting that recent reports about myocarditis are “stunning.”
For more than a year-and-a-half, news reports have documented that the CDC “has been withholding critical information from the medical community relating to COVID-19 vaccines and their safety, Dr. Malone said.
Laura Sextro, CEO of The Unity Project, told the Epoch Times there was no need for SB 815 or AB 2098.
“The writing is on the wall,” she said. “There’s a temporary injunction right now against AB 2098, and I think the authors of this terrible legislation knew that they had to do something to modify this because it’s so horrendous.”
Ms. Sextro said a doctor who owns an urgent care clinic with seven practitioners in California told her on Oct. 2 the clinic would be shuttered because of legislation like AB 2098 and SB 815.
“They’ve made the decision to close the clinic,” she said.
“I think that bills like AB 2098 are actually designed to penalize the sole proprietor doctors—the single-practice doctors who are not associated with … big box medical groups,” she said.
Other Legal Challenges
AB 2098 has since met other legal challenges, including complaints from Democratic presidential candidate Robert F. Kennedy Jr. and the American Civil Liberties Union and two California doctors, Dr. Mark McDonald and Dr. Jeff Barke.
Shubb's ruling runs contrary to Judge Fred W. Slaughter’s earlier decision to deny a preliminary injunction in the case involving Dr. Barke and Dr. McDonald, who sued the medical board, Mr. Newsom, and AG Bonta in the U.S. District Court for the Central District of California last year. The lawsuit, which is still pending, asked the court to declare AB 2098 unconstitutional and sought a preliminary injunction to prevent its enforcement.
Dr. Simone Gold, a Beverly Hills physician who founded America’s Frontline Doctors, called AB 2098 an “unconstitutional, Orwellian gag-order,” that attempts to mandate a new and undefined standard known as ‘contemporary scientific consensus’ and illegally suppress dissenting professional medical opinions.
Eric Hintz, legislative director for Assemblyman Bill Essayli (R-Corona) told The Epoch Times several Republicans voted against SB 815 because they knew the Democratic majority would pass it to remove the “misinformation” and “disinformation” provisions in AB 2098 and because Republicans wanted to voice opposition to fee increases for medical licenses in the state.
The bill increases medical license fees for all physicians by $288, from $863 to $1,151.
“So, I think that’s the reason why a lot of Republicans decided to vote against it,” Mr. Hintz said.
The bill would also extend the regulatory powers of the medical board by two more years from a Jan. 1, 2026, sunset clause to Jan. 1, 2028.
“That would be another reason why someone might oppose the bill,” he said.
