Judge Grants Temporary Injunction Against California AB 2098, the Awful Doctor-Muzzling Law

A California federal judge granted a temporary injunction Wednesday against the state’s Assembly Bill 2098, called “Physicians and surgeons: unprofessional conduct,” in a big win for all doctors who don’t appreciate their speech being censored. The “medical misinformation” bill was signed into law by Governor Gavin Newsom in September and marks one of the biggest dictatorial pandemic-era overreaches by the governor and the Golden State legislature, which is run by a supermajority of Democrats.

The short version of the law is—if you’re a doctor and you say anything about COVID the state doesn’t like, they will take away your license to practice and therefore your career. Somewhere in Washington, D.C. there’s a copy of the U.S. Constitution, but it would appear that Newsom hasn’t bothered to read it or one of its central features, the First Amendment.

Here’s what free speech advocate Dr. Azadeh Khatibi had to say at the time:

They are muzzling us. #AB2098 muzzles doctors by threatening their medical license & livelihood if they don’t follow consensus opinion. In their fear & reactivity, the CA Legislature is creating a Ministry of Truth at @MedBoardOfCA to silence doctors who don't agree with them. pic.twitter.com/TYU6kVervK
— Azadeh Khatibi, MD, MS, MPH (@AzadehKhatibi) September 6, 2022

Doctors involved in the case, Hoeg v, Newsom, took to Twitter to celebrate the fact that there’s at least one judge in the state with some common sense:

1/ BREAKING: Judge just granted our request for a preliminary injunction against AB 2098–the gag order on physicians in CA–in our Hoeg v. Newsom lawsuit. This effectively halts the implementation of this terrible law while our case is being tried.
— Aaron Kheriaty, MD (@akheriaty) January 26, 2023

Doctor Aaron Kheriaty, formerly a professor at UC Irvine School of Medicine and director of the Medical Ethics Program there, is one of a group of licensed physicians who have teamed together to push back against the bill. He feels that the ruling shows the strength of their eventual chances when the full case is heard:

2/ The ruling bodes well for our case: it indicates that our arguments that this law is unconstitutional have strong pre-trial facial plausibility. Not to get ahead of ourselves, of course, or try to predict the final outcome of the case, but this is a very positive development.
— Aaron Kheriaty, MD (@akheriaty) January 26, 2023

Here are the beautiful words of the judge from his ruling, which can be viewed here:

IT IS THEREFORE ORDERED that plaintiffs’ motions for preliminary injunction (Høeg Docket No. 5; Hoang Docket No. 4) be, and the same hereby are, GRANTED. Pending final resolution of this action, defendants, their agents and employees, all persons or entities in privity with them, and anyone acting in concert with them are hereby ENJOINED from enforcing Cal. Bus. & Prof. Code § 2270 as against plaintiffs, plaintiffs’ members, and all persons represented by plaintiffs.

The ruling is long (30 pages) and complex, but judge, William Shubb, summed up why he granted the motion:

In addition to establishing a likelihood of success on the merits, plaintiffs must establish that they are likely to
suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in their favor; and that an injunction is in the public interest. Winter, 555 U.S. at 20. “[B]y establishing a likelihood that [the challenged law] violates the U.S. Constitution, [p]laintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014). The plaintiffs have thus established the elements necessary to obtain a preliminary injunction. (Emphasis mine.)

Interestingly, the last line of the document reveals that the judge was persuaded by arguments surrounding the Fourteenth Amendment, so he didn’t even need to consider First Amendment issues:

Because plaintiffs have established a likelihood of success on the grounds of their Fourteenth Amendment vagueness challenges, the court need not address the merits of their First Amendment arguments.

Dr. Houman Hemmati, who has also been a vocal opponent of the bill, was thrilled by today’s news:

Today’s judicial ruling against #AB2098 is the result of direct grassroots activism by doctors, lawyers and citizens who organized here on @Twitter & proved that our system of checks and balances works. We are nation of laws & no governor is above those laws. Leave doctors alone.
— Houman David Hemmati, MD, PhD (@houmanhemmati) January 26, 2023

The war has not been won against 2098, but an important battle has. Kudos to all the doctors and lawyers who have become a team to fight for our freedoms. The U.S. government and the state of California pushed oodles of COVID misinformation throughout the last three years, so not only is the law likely unconstitutional, it’s preposterous that they should be put in charge of telling us what’s the “truth.”

Related: