The U.S. Supreme Court rejected three doctors’ emergency request to prevent a California agency from investigating them over advice they give to patients that does not conform to the state’s position on COVID-19.
Justice Elena Kagan, who handles urgent appeals from California, rejected the emergency application in Kory v. Bonta late on Jan. 21. She did not explain why.
The decision came 13 days after the case was docketed by the court on Jan. 8. Kagan did not ask California to respond to the application.
Robert F. Kennedy Jr. was listed as one of two attorneys representing the physicians in the case.
President Donald Trump has nominated Kennedy, an activist on environment and health-related issues, to be secretary of the U.S. Department of Health and Human Services (HHS).
The other co-counsel on the application is Richard Jaffe of Sacramento, California.
The Medical Board of California considers the expression of the doctors’ dissenting views on the disease as potentially dangerous misinformation that needs to be suppressed.
The board argues that it has legal authority to discipline the doctors for speech it deems to be medical misconduct. The physicians counter that they didn’t surrender their free speech rights when they obtained medical licenses.
The application was initiated by Dr. Pierre Kory and Dr. Brian Tyson, both medical doctors; Dr. Le Trinh Hoag, an osteopathic physician; Physicians for Informed Consent; and Children’s Health Defense, a nonprofit organization founded by Kennedy.
The application stated that California’s executive and legislative branches are “threatening California physicians with professional discipline for their viewpoint speech contrary to the mainstream COVID narrative.”
After the Federation of State Medical Boards in July 2021 asked its member medical boards in the United States to punish physicians for advancing perceived “COVID misinformation” and “disinformation” among patients and the public, Medical Board of California 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 stated.
After a federal district judge halted the law in January 2023, the Legislature repealed the misinformation provision effective January 2024.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 following the repeal.
The applicants were 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 rejected a request to preliminarily block the state’s enforcement program, holding 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 upheld by the U.S. Court of Appeals for the Ninth Circuit on Nov. 27, 2024.
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