California Assembly Bill 2098 is no longer in force. Signed on September 30, 2022, the law made it unprofessional conduct for a California physician to share COVID-19 misinformation with a patient. A federal court blocked it in January 2023, and the Legislature repealed it through Senate Bill 815 effective January 1, 2024.1California Legislative Information. California Senate Bill 815 – Healing Arts No physician was ever disciplined under it, and no appellate court ever ruled on whether it was constitutional.
What the Law Said
AB 2098 added Section 2270 to the California Business and Professions Code. It applied only to physicians and surgeons licensed by the Medical Board of California and to osteopathic physicians and surgeons licensed by the Osteopathic Medical Board of California.2California Legislative Information. California Assembly Bill 2098 – Physicians and Surgeons Unprofessional Conduct Other health care professionals were not covered.
The statute reached only conversations between a physician and a patient under that physician’s care. Public statements, social media posts, journal articles, conference talks, and conversations with colleagues fell outside its scope.3California Legislative Information. California Code Business and Professions Code 2270 – Unprofessional Conduct
Section 2270 defined two tiers of prohibited speech. “Misinformation” was false information contradicted by “contemporary scientific consensus” in a way that departed from the standard of care. “Disinformation” was misinformation spread deliberately, with malicious intent or intent to mislead. Covered topics included claims about the nature and risks of the virus, prevention and treatment, and the development, safety, and effectiveness of COVID-19 vaccines.2California Legislative Information. California Assembly Bill 2098 – Physicians and Surgeons Unprofessional Conduct
What Discipline Could Have Followed
A violation would have been treated as unprofessional conduct under California’s licensing laws, with enforcement by the Medical Board or the Osteopathic Medical Board.3California Legislative Information. California Code Business and Professions Code 2270 – Unprofessional Conduct The broader disciplinary framework for unprofessional conduct allows penalties running from a public reprimand or citation to probation with practice restrictions, suspension, or license revocation.
None of that machinery was ever used. The law was enjoined almost immediately and repealed before any case proceeded to discipline.
Why the Courts Blocked It
Lawsuits followed within weeks of enactment. The most significant was consolidated litigation before Judge William B. Shubb in the U.S. District Court for the Eastern District of California, combining Høeg v. Newsom and Hoang v. Bonta. On January 25, 2023, the court granted a preliminary injunction blocking enforcement.
Judge Shubb found the plaintiffs likely to succeed on a vagueness claim under the Fourteenth Amendment’s Due Process Clause. The term “contemporary scientific consensus” was too ill-defined for a physician to know what the law prohibited, and the phrase “contrary to the standard of care” was “grammatically incoherent” when paired with it. With COVID-19 a rapidly evolving area of study, even “false information” could not save the provision.4FindLaw. Hoeg v Newsom (2023)
A separate challenge, McDonald v. Lawson in the Central District of California, went the other way. Judge Fred W. Slaughter denied a preliminary injunction, finding AB 2098 neither an unconstitutional restraint on speech nor impermissibly vague.5Justia. McDonald v Lawson, No. 22-56220 (9th Cir. 2024) The split set up appellate review that never came.
How the Law Was Repealed
On September 30, 2023, Governor Newsom signed Senate Bill 815, which repealed Section 2270. The repeal took effect on January 1, 2024, and the Legislature did not enact any replacement.1California Legislative Information. California Senate Bill 815 – Healing Arts
The pending cases then collapsed. On February 29, 2024, the Ninth Circuit held that the repeal of AB 2098 mooted McDonald v. Lawson, reasoning that the law responded to a pandemic “which is not a routine occurrence that is reasonably likely to reoccur” and that any chance of future enforcement was “at best remote.” The panel vacated the district court’s judgment and ordered dismissal.5Justia. McDonald v Lawson, No. 22-56220 (9th Cir. 2024) The Eastern District dismissed Høeg and Hoang as moot in April 2024. Judge Shubb’s injunction was vacated rather than affirmed, so no binding appellate ruling on constitutionality exists.
What Governs Physician Speech Now
Section 2270 no longer exists, and the medical boards have no authority to use COVID-19 misinformation as a standalone basis for discipline. Standard-of-care obligations under existing malpractice and professional conduct law continue to apply as they always have.
The constitutional framework for any future state attempt to regulate physician speech runs through the U.S. Supreme Court’s 2018 decision in National Institute of Family and Life Advocates v. Becerra (NIFLA). The Court rejected the idea that “professional speech” is a separate category entitled to lesser First Amendment protection, holding that speech is “not unprotected merely because it is uttered by ‘professionals.'” Content-based restrictions on physician speech are presumptively unconstitutional and survive only if narrowly tailored to serve a compelling interest, with limited exceptions for purely commercial speech and for regulations of professional conduct that only incidentally burden speech.6Supreme Court of the United States. National Institute of Family and Life Advocates v Becerra, 585 U.S. 755 (2018) AB 2098 fit neither exception, which is part of why it drew immediate legal challenge.