Doctors Urge Supreme Court to Prevent California Board from Sanctioning Them Over COVID-19 Opinions
The doctors argue that California cannot infringe upon their free speech rights under the pretext of public health.
A group of three medical professionals is petitioning the U.S. Supreme Court to block a California agency from probing them due to their dissent against state-sanctioned COVID-19 policies.
The California Medical Board perceives the doctors’ opposing views on the pandemic as potentially harmful misinformation that ought to be curtailed. They assert their legal authority to take disciplinary action against the doctors for expressing what they classify as medical misconduct. In defense, the physicians argue that possessing medical licenses does not negate their First Amendment rights to free speech.
The request for an injunction was directed to Supreme Court Justice Elena Kagan, who is responsible for emergency appeals from California.
It remains uncertain when the Supreme Court will respond to this application.
The justices have the option to grant an injunction, reject it, or schedule the matter for oral arguments.
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The injunction application was filed by Drs. Pierre Kory and Brian Tyson, along with osteopathic physician Le Trinh Hoag, the nonprofit Physicians for Informed Consent, and Children’s Health Defense, which was founded by Robert F. Kennedy Jr.
President-elect Donald Trump has nominated Kennedy to serve as secretary of the U.S. Department of Health and Human Services, following his inauguration on January 20. Kennedy is also noted as co-counsel in the case.
The application details how California’s executive and legislative branches are “threatening California physicians with professional discipline for their viewpoint speech that contradicts the predominant COVID narrative.”
After the Federation of State Medical Boards urged its members in July 2021 to penalize doctors for spreading supposed “COVID misinformation,” California Medical Board President Kristina Lawson declared in February 2022 that the board would take disciplinary action against physicians for what it termed “COVID misinformation.”
The California Legislature enacted AB 2098, effective January 2023, which established penalties for doctors disseminating “misinformation” about the disease, according to the application.
After a federal district court issued a block on the law in January 2023, the Legislature repealed the misinformation provision, effective January 2024. However, the application notes that the board continued to investigate physicians for breaching its COVID-19 directives post-repeal.
The applicants are contesting “the practice and policy of targeting and threatening physicians with disciplinary action for offering information and recommendations that deviate from the mainstream COVID narrative,” as stated in their application.
On April 23, 2024, the U.S. District Court for the Eastern District of California denied a request for preliminary injunction against the state’s enforcement initiatives, concluding that the applicants lacked standing to proceed.
Standing refers to the eligibility of a party to bring a lawsuit, which requires a substantial connection to the claims made.
The ruling was upheld by the U.S. Court of Appeals for the Ninth Circuit on November 27, 2024.
The California Business and Professions Code, under which the California Medical Board claims its authority, “governs conduct, not speech,” according to the circuit court.
“It allows enforcement of the standard of care, which is the guideline for physicians’ treatment of patients,” it noted.
To establish standing, the applicants needed to show “a credible threat that the [board] will prosecute them under the statute,” which the appeals court found lacking.
The Ninth Circuit noted that the only disciplinary action taken against a physician involved a case where a physician was encouraging the use of veterinary ivermectin, leading to the surrender of her medical license.
The applicants are requesting the Supreme Court to issue an injunction preventing the state from “continuing their enforcement program that targets the information, opinions, and recommendations regarding COVID-19 that licensed physicians in California may provide to their patients.”
The application is set to be reviewed by the justices at a closed judicial conference on January 10, with a potential announcement of the court’s decision on January 13.
The Epoch Times contacted the California Medical Board and California Attorney General Rob Bonta, who represents the board, for comments but received no response prior to publication.
