Doctors Ask Supreme Court to Block California Board From Penalizing Certain

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The physicians say California cannot take away their free speech rights on public health grounds.

Three doctors are asking the U.S. Supreme Court to prevent a California agency from investigating them over their opposition to state-approved COVID-19 policies.

The California Medical Board considers the expression of the doctors’ dissenting views on the disease as potentially dangerous misinformation that should be suppressed. The board argues it has legal authority to discipline the doctors for speech it deems to be medical misconduct. The physicians counter that just because they have medical licenses doesn’t mean they forfeit their free speech rights under the First Amendment.

The emergency application in Kory v. Bonta was docketed by the high court on Jan. 8, one of the applicants’ attorneys, Richard Jaffe of Sacramento, California, told The Epoch Times.

The application for an injunction was submitted to Supreme Court Justice Elena Kagan, who oversees urgent appeals from California.

It is unclear when the Supreme Court will act on the application.

The justices could grant an injunction against the state, deny the injunction, or schedule the case for oral argument.

The application was brought by medical doctors Pierre Kory and Brian Tyson, osteopathic physician Le Trinh Hoag, Physicians for Informed Consent, and Children’s Health Defense, a nonprofit founded by Robert F. Kennedy Jr.

President-elect Donald Trump, who will be inaugurated on Jan. 20, has nominated Kennedy to be secretary of the U.S. Department of Health and Human Services. Kennedy, an attorney, is also listed as co-counsel on the application.

California’s executive and legislative branches are “threatening California physicians with professional discipline for their viewpoint speech contrary to the mainstream COVID narrative,” according to the application.

After the Federation of State Medical Boards in July 2021 encouraged its member medical boards in the United States to punish physicians for advancing perceived “COVID misinformation” and “disinformation” among patients and the public, California Medical Board President Kristina Lawson announced in February 2022 that the board planned to sanction physicians for what it called “COVID misinformation.”

The California Legislature passed AB 2098, which took effect in January 2023, making the dissemination of “misinformation” about the disease an offense for which doctors could be disciplined, the application said.

After a federal district judge blocked the law in January 2023, the Legislature repealed the misinformation provision effective January 2024. The application said the board continued to probe physicians for violating its COVID-19 policy after the repeal.

The applicants are challenging “the practice and policy of threatening and targeting physicians with discipline for providing information and recommendations contrary to the mainstream COVID narrative,” according to the application

On April 23, 2024, the U.S. District Court for the Eastern District of California turned down a request to preliminarily block the state’s enforcement program, finding that the applicants lacked legal standing.

Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the claim to justify their participation in a lawsuit.

The ruling was affirmed by the U.S. Court of Appeals for the Ninth Circuit on Nov. 27, 2024.

The California Business and Professions Code, under which the California Medical Board claims its disciplinary authority, “regulates conduct, not speech,” the circuit court said.

“It provides for enforcement of the standard of care, which is the standard for physicians’ treatment of patients,” it stated.

To demonstrate standing, the applicants had to demonstrate that there was “a credible threat that the [board] will prosecute them under the statute” but they did not do so, the appeals court said.

The Ninth Circuit said the court record showed the only disciplinary action taken against a doctor “involved a physician encouraging her patient to use veterinary ivermectin and resulted in the stipulated surrender of her license.”

The applicants are asking the Supreme Court for an injunction stopping the state from “continuing their enforcement program targeting the information, opinions, and recommendations on COVID-19 which California licensed physicians may provide to patients.”

Attorneys Jaffe and Kennedy previously filed a related challenge with the Supreme Court that remains pending. In Stockton v. Ferguson, they asked the justices to block the Washington Medical Commission from investigating licensed physicians in the state over their criticism of COVID-19 policies.

The application was scheduled to be considered by the justices at the court’s private judicial conference on Jan. 10. The court may announce a decision on the case on Jan. 13.

The Epoch Times reached out to the California Medical Board and to California Attorney General Rob Bonta, who represents the board, for comment, and no reply was received as of publication time.