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The Case Against the Physician Gag Order


Here’s my recent testimony against the bill at the CA State Senate:

YouTube video

Attorney Laura Powell also testified against the bill with some excellent remarks…

The bill unfortunately passed the committed on a strict party-line vote, and will go to the state Assembly floor for a vote soon. Here is a link to information from The Unity Project.

And here’s a transcript of a slightly longer version of my remarks. The Senate gave our side a total of 3 minutes to testify, which Laura and I had to share between us. Democracy!

I am Dr. Aaron Kheriaty, a physician licensed in the state of California. I direct the Health and Human Flourishing Program at the Zephyr Institute in Palo Alto and serve as Chief of Ethics at The Unity Project.

AB 2098 will harm patients, hamstring our pandemic response, destroy the trust necessary for the doctor-patient relationship, and worsen the physician shortage in California.

A physician with a gag order – a physician who cannot say what he or she thinks – is not a physician you can trust. Patients want to know that if they ask their physician a question, including a question about covid, they will get their doctor’s honest opinion—regardless of whether the patient follows that opinion, seeks a second opinion, or whatever. Patients will not trust physicians if they believe their doctor is simply parroting a consensus judgment that he or she may or may not endorse.

Science evolves constantly: the text of AB 2098 makes statements about covid and covid vaccines that are already outdated:

(1) The death count figures cited are overestimated by failing to distinguish dying from covid and dying with covid

(2) the efficacy of vaccines has declined with time and new variants, so the vaccine efficacy statistic cited in the law is no longer true of the vaccines against omicron

(3) new covid vaccine safety issues have come to light with emerging research.

Safety and efficacy findings are subject to change over time. My colleagues and I filed a Freedom of Information Act request to obtain the Pfizer clinical trials data from the FDA. These documents revealed concerning safety issues in the first three months of vaccine rollout. Last week, a study in the New England Journal of Medicine showed negative vaccine efficacy against omicron infection. A peer-reviewed study published two weeks ago found reduced sperm counts in men after vaccination. These findings were unavailable when this law was drafted.

Advances in science and medicine typically occur when doctors and scientists challenge conventional thinking or settled opinion. Fixating any current medical consensus as “unassailable” by physicians will stifle medical and scientific progress. As I testified in January at a U.S. Senate panel on Covid policy: “The scientific method suffered [during the pandemic] from a repressive academic and social climate of censorship and silencing of competing perspectives. This projected the false appearance of a scientific consensus—a ‘consensus’ often strongly influenced by economic and political interests.”

One need only look at the last two years to see how frequently public health recommendations and consensus thinking about Covid changed from one month to the next with the advent of new information. Frontline physicians played a key role here in advancing knowledge of covid treatments—including ventilating patients in the prone position, the use of high dose steroids in hospitalized patients, and safety issues with some novel antiviral therapies. Yesterday’s minority opinion often becomes today’s standard of care.

Good science is characterized by conjecture and refutation, lively deliberation, often fierce debate, and always openness to new data. The censorship of free inquiry and free speech in AB 2098 spells not only the demise of civil liberties and constitutional rights for physicians in CA, but the end of the scientific enterprise when it comes to dealing with Covid in our state. Physicians whose professional opinions are stifled will simply leave California.

This bill will not help us to address the pandemic. Doctors will be punished for practicing medicine according to their best judgment. Informed consent—the foundational principle of ethical medicine—will be seriously compromised. The trust necessary for the doctor-patient relationship will be shattered.

Our lawmakers need to oppose AB 2098. It will harm physicians and medical institutions in California; it will harm scientific progress; and most concerningly, it will harm our patients.

Republished from the author’s Substack

Published under a Creative Commons Attribution 4.0 International License
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  • Aaron Kheriaty

    Aaron Kheriaty, Senior Brownstone Institute Counselor, is a Scholar at the Ethics and Public Policy Center, DC. He is a former Professor of Psychiatry at the University of California at Irvine School of Medicine, where he was the director of Medical Ethics.

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