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.
Kennedy has resigned from the nonprofit because of his pending HHS nomination, Jaffe told The Epoch Times.
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After a federal district judge halted the law in January 2023, the Legislature repealed the misinformation provision effective January 2024.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.
The California Business and Professions Code, under which the California Medical Board claims its disciplinary authority, “regulates conduct, not speech,” the appeals court stated. “It provides for enforcement of the standard of care, which is the standard for physicians’ treatment of patients,” the court added.
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 stated.
The Ninth Circuit said the court record showed that 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 were 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.”
In Stockton v. Ferguson, the justices were asked to prevent the Washington Medical Commission from investigating licensed physicians in the state over their criticism of COVID-19 policies.
The application was brought by former professional basketball player John Stockton along with Drs. Richard Eggleston, Thomas Siler, Daniel Moynihan, another 50 unidentified medical doctors, and Children’s Health Defense.
Jaffe told The Epoch Times it was “not surprising” that Kagan denied the application in Kory v. Bonta given that the full court declined the application in Stockton v. Ferguson.
The lawyer said his clients in the California case will either file a petition for certiorari, or review, with the Supreme Court, or continue pursuing the lawsuit that is still pending in federal district court.
“The plaintiffs are committed to pressing their case for the right of physicians to speak their truth to patients, and to the public,” he said.
After Kennedy is confirmed, “we are hopeful that the government will start releasing information about the COVID vaccines and treatments which may further support the wisdom of the principle that physicians have the right to speak out against the government narrative without fear of government reprisal.”
Before the recent pandemic, the courts “fully recognized those rights, but I think COVID scared many, including judges to grant a constitutional exception in times of crises.”
Jaffe added that his side remains optimistic that in the future the Supreme Court “will reject what these two states are doing in these physician speech cases.”
Alexandria Schembra, spokesperson for the Medical Board of California, told The Epoch Times that “The Board declines to comment due to pending litigation.”
