Tracy Høeg, M.D., et al. v. Gavin Newsom, Governor of California, in his official capacity, et al.
CASE SUMMARY
NCLA represents several physicians licensed by the Medical Board of California (MBC), most of whom treat patients on a regular basis. Drs. Tracy Høeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi alleged that Assembly Bill (AB) 2098, signed into law on September 30, 2022, violated their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. The law interfered with the ability of doctors and their patients to freely communicate, and had been used as a weapon to intimidate and punish doctors who dissent from mainstream views. Several Plaintiffs experienced threats from other doctors and individuals on social media to use AB 2098 to have their licenses taken away, an obvious attempt to suppress the those Plaintiffs’ speech. They were put between a rock and a hard place, fearing repercussions for acting in their patients’ best interests by honestly giving them the information they believe their patients need to make informed care decisions.
U.S. Supreme Court and U.S. Ninth Circuit Court of Appeals precedents highly protect speech uttered in the context of the doctor-patient relationship, recognizing a state interest in free and open communication between doctors and patients, and the First Amendment protects expression of majority and minority views alike. AB 2098 would have deprived Plaintiffs’ patients of their First Amendment rights to receive advice and hear treatment options unfettered by professional discipline fears.
On October 1, 2023, California Gov. Gavin Newsom signed legislation repealing AB 2098, a major victory for NCLA.
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CASE STATUS: Active
CASE START DATE: November 2, 2022
DECIDING COURT: U.S. District Court for the Eastern District of California
ORIGINAL COURT: U.S. District Court for the Eastern District of California
CASE DOCUMENTS
April 2, 2024 | Memorandum and Order Re: Motions to Dismiss
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February 29, 2024 | Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
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November 27, 2023 | Plaintiffs’ Memorandum of Law in Support of Their Position that This Case Is Not Moot
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September 29, 2023 | Memorandum in Support of Motion for Summary Judgment
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January 25, 2023 | Memorandum and Order Re: Plaintiffs’ Motions For Preliminary Injunction
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January 10, 2023 | Proposed Brief of Amici Curiae American Civil Liberties Union Of Northern California And American Civil Liberties Union of Southern California in Support Of Plaintiffs’ Motion For Preliminary Injunction
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January 3, 2023 | Brief of Amici Curiae A Voice for Choice Advocacy, Inc. in Support of Plaintiffs’ Motion for Preliminary Injunction
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December 24, 2022 | Plaintiffs’ Reply Memorandum in Support of Motion for Preliminary Injunction
November 2, 2022 | Notice of Motion and Memorandum in Support of Motion for Preliminary Injunction
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November 2, 2022 | Complaint for Declaratory and Injunctive Relief
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PRESS RELEASES
October 2, 2023 | In NCLA Victory, Gov. Newsom Repeals California Law Censoring Doctors’ Covid-19 Medical Advice
Washington, DC (October 2, 2023) – California Gov. Gavin Newsom has signed a bill to repeal a law that would have subjected physicians to discipline for sharing information that departs from the “contemporary scientific consensus” on Covid-19 with their patients. NCLA celebrates this great victory for its brave clients, who stood up to this outrageous attack on the First Amendment: Drs. Tracy Hoeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski and Azadeh Khatibi, in Høeg, et al. v. Newsom, et al., a lawsuit challenging the vague and censorious statute.
Signed into law in September 2022, California Assembly Bill (AB) 2098 violated Medical Board of California-certified physicians’ First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. It interfered with the ability of doctors and their patients to freely communicate, serving as a weapon to intimidate and punish doctors who dissented from mainstream views. Physicians and individuals on social media threatened several of NCLA’s clients with using AB 2098 to take their licenses away, corroborating evidence that the law’s insidious intent was always to silence doctors who depart from state orthodoxy on Covid-19.
In January, a federal district judge granted NCLA’s motion for preliminary injunction, preventing the statute from taking effect. NCLA filed a motion for summary judgment on September 29, asking the U.S. District Court for the Eastern District of California to permanently block enforcement of AB 2098. Newsom repealed the statute just two days later. The demise of AB 2098 frees these brave doctors to honestly provide information they believe their patients need in order to make informed care decisions. NCLA is proud to have vindicated California patients’ rights to hear their doctors’ sincere advice on medical matters, especially when the current “consensus” lags behind individual doctors’ knowledge, experience, and research, and their patients’ individual circumstances.
Repeal of AB 2098 marks the latest victory in NCLA’s ongoing fight against government censorship nationwide. The U.S. Court of Appeals for the Fifth Circuit has agreed to consider expanding its preliminary injunction order in NCLA’s Missouri v. Biden lawsuit that would bar White House, CDC, FBI, and U.S. Surgeon General’s office officials from pressuring social media platforms to censor protected speech. Among other clients, NCLA proudly represents Dr. Kheriaty in that case too—which is already headed to the U.S. Supreme Court.
NCLA released the following statements:
“Governor Newsom and the state legislature saw the writing on the wall after Judge Shubb’s grant of a preliminary injunction in January. Rather than suffer further humiliation in federal court, and implicitly conceding the unconstitutionality of AB 2098, the State of California has taken the unusual step of repealing a law that hasn’t even been in effect for a year. This repeal marks a significant victory, not only for NCLA’s courageous clients, but for all doctors across the State of California.”
— Jenin Younes, Litigation Counsel, NCLA
“Today is a good day for California physicians, patients, doctor-patient relationships, and the Constitution. But it is sad that it took a full year and a federal court ruling to reaffirm a 250-year-old fundamental truth—in this country ‘no official, high or petty, can prescribe what shall be orthodox in … matters of opinion or force citizens to confess by word or act their faith therein.’”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA
“Congratulations to Drs. Høeg, Duriseti, Khatibi, Kheriaty, and Mazolewski on today’s victory! Their early and unrelenting objections to this unconstitutional law paved the way for its repeal. NCLA is proud to have stood shoulder to shoulder with doctors who cared more about the sanctity of the doctor-patient relationship and the First Amendment than about bowing to the State’s or Medical Board’s ‘politically correct’ consensus views.”
— Mark Chenoweth, President and General Counsel, NCLA
For more information visit the case page here or watch the case video here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
June 8, 2023 | Watch: A Physician with a Gag Order Is Not a Physician You Can Trust, NCLA Releases Case Video Challenging California’s AB 2098
Washington, DC (June 8, 2023) – The government declared the pandemic officially over on May 11th, but a video released today by the New Civil Liberties Alliance explains how California Assembly Bill 2098 (AB 2098) subjects physicians to discipline for disseminating “misinformation” about Covid-19 to patients. The vague and controversial law renders the State the arbiter of truth and endows those who seek to prevent dissenters from voicing their medical opinions with the legal authority to censor doctors.
The New Civil Liberties Alliance represents five California physicians in Høeg, et al. v. Newsom, et al., who argue AB 2098 violates the core First Amendment values of the venerable doctor-patient relationship. It does not allow physicians to provide patients with their honest opinions on covid-related matters, and their patients can no longer be assured that they are receiving their physicians’ learned, individualized advice, as opposed to state-approved mantras.
On January 25, 2023, Senior Judge William B. Shubb of the U.S. District Court for the Eastern District of California granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. Patients want to know that if they ask their physician a question, including a question about Covid-19, they will get the doctor’s honest opinion.
Excerpts from the video:
“The law in California threatens doctors for giving their honest opinion, threatens them with loss of their license that they worked so hard for.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA
“Because AB 2098 is difficult to interpret for physicians, physicians are going to just err on the side of just reading from a script written by the California Department of Public Health.”
— Aaron Kheriaty, M.D., Plaintiff, Høeg, et al. v. Newsom, et al.
“This is abnormal. This is wrong. I’m going to do everything in my power to fight this type of injustice against doctors and patients. I’m just getting started”
— Azadeh Khatibi, M.D., Plaintiff, Høeg, et al. v. Newsom, et al.
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
January 25, 2023 | California Judge Grants Injunction to NCLA Clients, Halts Implementation of Law Censoring Doctors
Washington, DC (January 25, 2023) – Senior Judge William B. Shubb of the U.S. District Court for the Eastern District of California today granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that plaintiffs have standing to bring a legal challenge, and enjoined implementation of Assembly Bill (AB) 2098 in California. The controversial state law empowered the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Judge Shubb stated that “the ‘contemporary scientific consensus’ lacks an established meaning within the medical community,” and thus, because the “scientific consensus” is so ill-defined and vague, the physician plaintiffs in the lawsuit are “unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”
The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents five physicians licensed by the Medical Board of California. Drs. Høeg, Duriseti, Kheriaty, Mazolewski, and Khatibi alleged violations of their First Amendment rights to free speech and expression and their Fourteenth Amendment rights to due process of law. At oral argument on Monday, January 23, NCLA argued the term “contemporary scientific consensus” is undefined in the law and undefinable as a matter of logic. No one can know, at any given time, the “consensus” of doctors and scientists on various matters related to the prevention and treatment of Covid-19. Judge Shubb agreed with this analysis, stating, “COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time.” Because he ruled in favor of Plaintiffs’ Fourteenth Amendment arguments, he did not reach the First Amendment arguments.
Plaintiffs attested that they could not communicate freely with patients, nor treat them properly, according to their best judgment, when they feared being reported and potentially subject to discipline for giving a patient advice that departs from a supposed “scientific consensus.” The very concept of “scientific consensus” is problematic and represents a misunderstanding of the scientific process. As Judge Shubb recognized, “COVID-19 [is] a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested. COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”
NCLA commends Judge Shubb for safeguarding our clients’ rights to free speech by enjoining this vague law. Judge Shubb’s decision also granted a PI in a second case making similar arguments against the law in a later-filed case that was argued before him at the same time this past Monday on behalf of additional plaintiffs.
NCLA released the following statements:
“NCLA is gratified Judge Shubb has recognized that AB 2098, which seeks to punish California doctors for giving patients information that departs from the so-called contemporary scientific consensus about Covid, creates an impossible standard for physicians to follow and would result in silencing physicians who disagree with state orthodoxy. The speed with which he issued his decision no doubt reflects the significance of the constitutional problems the law presents, as well as the negative consequences it would have for doctor-patient relationships.”
— Jenin Younes, Litigation Counsel, NCLA
“This Act is a blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the government-approved ‘party line.’ At no point has the State of California been able to articulate the line between permissible and impermissible speech, further illustrating how problematic the statute is. NCLA is pleased the Court recognized all the problems with AB2098 and enjoined this unconstitutional law.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
November 2, 2022 | California Doctors Sue Gov. Newsom and Calif. Medical Board over New Law Censoring Medical Advice
Washington, DC (November 2, 2022) – A new California law signed by Governor Gavin Newsom empowers the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a complaint and motion for a preliminary injunction in Høeg, et al. v. Newsom, et al., asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect.
NCLA represents five physicians licensed by the Medical Board of California (MBC), most of whom treat patients on a regular basis. Drs. Hoeg, Duriseti, Kheriaty, Mazolewski, and Khatibi allege Assembly Bill (AB) 2098, signed into law on September 30, 2022, violates their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. The law not only interferes with the ability of doctors and their patients to freely communicate, but it has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views. Several Plaintiffs have experienced threats from other doctors and individuals on social media to use AB 2098 to have their licenses taken away, an obvious attempt to suppress the doctors’ speech. They are being put between a rock and a hard place, fearing repercussions for acting in their patients’ best interests by honestly giving them the information they believe their patients need in order to make informed care decisions.
In safeguarding Americans’ rights to free speech and expression, the First Amendment applies not only to the expression of majority opinions, but to minority views as well. U.S. Supreme Court and Ninth Circuit precedents highly protect speech uttered in the context of the doctor-patient relationship, recognizing a state interest in free and open communication between doctors and patients. AB 2098 deprives Plaintiffs’ patients of their First Amendment rights to receive advice and hear treatment options unfettered by professional discipline fears.
The term “contemporary scientific consensus” is undefined in the law and is arguably undefinable, which violates Plaintiffs’ Fourteenth Amendment rights to due process of law. Practically speaking, no doctor can know, at any given time, the “consensus” of doctors and scientists on various matters related to prevention and treatment of Covid-19. AB 2098 is thus also void for vagueness. Even if consensus could be defined and known, scientific and medical progress is made when doctors can use their own judgment based on their knowledge, experience, and research, and their patients’ individual circumstances. They should not be bound by a so-called consensus that will always lag the science. AB 2098 also subjects Plaintiffs to discipline and negative professional consequences (including loss of license) for conveying non-consensus messages to their patients. For this reason, the new law practices viewpoint discrimination and creates a severe chilling effect, in direct violation of the First Amendment.
The district court should rule AB 2098 unconstitutional and prevent the government and MBC from enforcing it.
NCLA released the following statements:
“California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country. That this shocking bill passed through the state legislature and was signed into law by Governor Newsom demonstrates that far too many Americans do not understand the First Amendment. Our country has a strong historical commitment to free and open debate and to protect the ability of those who dissent from the government’s view to express their own opinions. We have no doubt that courts will see this unconstitutional law for what it is and strike it down.”
— Jenin Younes, Litigation Counsel, NCLA
“Beyond being an unconstitutional infringement on physicians’ First Amendment rights, the law will interfere with the sacred doctor-patient relationship. As physicians, it is our duty to be honest and transparent with our patients. The text of AB 2098 ironically already contains false information about Covid-19 vaccine effectiveness. Physicians will find themselves in a very difficult position of needing to choose between saying what they truly believe, saying what they think the medical board wants them to say, or simply staying silent. This law will have a poisonous effect on the doctor-patient relationship by diminishing patients’ trust in their doctors and by disincentivizing full honesty from doctors, making their job of caring for patients to the best of their ability even more challenging.”
— Tracy Høeg, M.D., Lead Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.
“AB 2098 is unconstitutional, infringing the First Amendment free speech rights of physicians and harming the doctor-patient relationship. A physician with a gag order is not a physician you can trust. Progress in science and medicine will be stifled by this law, which will drive good physicians out of California, ultimately harming patients.”
— Aaron Kheriaty, M.D., Plaintiff, Tracy Høeg, M.D., et al. v. Gavin Newsom, et al.
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.