On January 25, 2023, federal judge William Shubb blocked the state of California from enforcing the controversial law AB 2098. This law declared that physicians who “disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines” would be guilty of “unprofessional conduct.” The Medical Board of California would be empowered to discipline physicians guilty of spreading such “misinformation” when treating patients.
In his ruling blocking the law, Judge Shubb found the state definition of “misinformation” to be particularly problematic. The statute defined “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
Judge Shubb asked some pointed questions, including: “For instance, who determines whether a consensus exists to begin with? If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or professional organizations, or medical researchers, or public health officials, or perhaps a combination)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitutes a consensus (perhaps a plurality, or a majority, or a supermajority)? How recently in time must the consensus have been established to be considered ‘contemporary’?”
Furthermore, Judge Shubb noted that, “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
Judge Shubb thus concluded that this uncertainty placed physicians in an untenable position: “Because the term “scientific consensus” is so ill-defined, physician plaintiffs are unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”
The ACLU took a similar position in opposition to the California law. ACLU attorney Hannah Kieschnick wrote, “physicians will be loath to speak their minds and share their opinions with patients about a rapidly evolving disease with many unknowns.” (Kieschnick also noted that current law already has ample provisions to protect patients against physician misconduct, a view I fully agree with.)
I’m glad that both Judge Shubb and the ACLU have raised the issue of the rapidly shifting nature of scientific “consensus” regarding Covid-19. In recent weeks, we’ve seen three separate stories in which what was portrayed as a consensus a few years ago has undergone significant scientific re-examination.
The first example was the topic of “natural immunity” obtained by contracting Covid-19 vs. immunity acquired from vaccinations. A recent study in The Lancet has concluded that the immunity from a prior Covid-19 infection was at least as strong as that obtained by two doses of the mRNA vaccine.
The second was on the efficacy of population mask mandates in preventing the spread of Covid-19. A recent meta-analysis of 12 clinical trials in multiple countries concluded that, “Wearing masks in the community probably makes little or no difference to the outcome of influenza‐like illness (ILI)/COVID‐19 like illness compared to not wearing masks.”
Tom Jefferson, the lead author of the Cochrane study and senior associate tutor at the University of Oxford, stated his conclusion about mask mandates much more bluntly: “There is just no evidence that they make any difference. Full stop. My job, our job as a review team, was to look at the evidence, we have done that.”
(Others have published counterarguments against this conclusion; see this by Tomas Pueyo for one example.)
The third example was on the origins of the Covid-19 virus itself. According to the Wall Street Journal, the US Department of Energy now believes that the virus came from an inadvertent “laboratory leak” rather than a natural leap from animals to humans in a public marketplace. Their revised conclusion is based on new intelligence, but they noted this conclusion to be of “low confidence.”
(Other US agencies disagree. National Security Council spokesman John Kirby explicitly stated that there is “not a consensus” within the federal government on this question.)
All three of these issues are still being discussed and debated within the scientific community. Furthermore, on each of these controversial topics, someone who had expressed the “wrong” view two or three years ago on social media might have risked being blocked or banned from the platform for spreading “misinformation.”
I do not take a strong position on any of these issues. Rather, I wish to emphasize that the very fact that these are contentious topics means that the science is still not yet fully settled. These ongoing debates merely illustrate Judge Shubb’s observation, “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
Not all dissents from mainstream opinion are equally valid. But when public health officials prematurely portray their favored position on a controversial topic as a “consensus” and label plausible contrary views as “misinformation,” they risk losing credibility when that purported consensus later collapses under the weight of new evidence and new analysis.
Similarly, when government officials attempt to compel doctors to adhere to a false or non-existent consensus, they do a grave disservice to physicians and patients alike. I, for one, am glad that AB2098 is off the table — at least for now — and I hope it never comes back.
(Note: As a practicing physician who regularly performs invasive procedures on patients, I gladly received my Covid-19 vaccinations in accordance with my own personal preferences and with relevant state law.)