John Livingston

Proven Science can’t be changed by Legislation

I am always surprised when a ruling coming from the Eastern District of California in the IX US District Court is one that I agree with. Wisdom and fidelity to the Founding Principles and our Constitution seem to be in short supply in our country, but especially in California. There does appear to be a “Solomon” sitting on that Court and his name is Judge William B. Shubb. On January 25, 2023, his ruling in Tracy Hoeg MD vs Gavin Newsom and the California Medical Association, please forgive my legal notations because unlike Dr. David Pate Esq. who has been a proponent of similar legislation in Idaho, I have not been formally trained in THE LAW.

I have been blessed with the “common sense gene” and I always try to be humble and gracious when trying to evaluate the thoughts, actions, and writings of other people. I am always suspicious like Judge Shubb seems to be of those who claim to be experts, and especially those who try to nullify the scientific opinions of well educated, clinically trained, physicians and scientists whose opinions may be different than our own. I never want to claim to be an “expert” and I understand that “science” is a process and is never “settled”. “Scientism” in the name of “science” is merely a means of projecting a political narrative. There is nothing “scientific” about projecting a narrative in the name of objectivity.

The legal opinion speaks for itself. Copernicus and Galileo could have benefited from the authorities understanding their own limitations. A heliocentric solar system was just as true before their observations as it was today. No Pope or scientist could change that science. Our doxology—”As it was in the beginning…..” is prescient in its application in science or matters of faith. The first and 14th Amendments to our Constitution protect free speech. Stifling free speech in the name of science and supporting a political narrative is dogma—not science. Often the people supporting such authoritarian control over the “process” of anything, are themselves limited by their own lack of introspection and humility. It is important to remember always that when you disagree with another person there is always the chance that they may be correct. The first Amendment was designed to be applied especially to those we disagree with, not just those who believe as we do.

The plaintiffs in the case alleged that the California Assembly Bill (“AB”) 2098 was unconstitutional under the US 1st and 14th Amendments. The law that went into effect on January 1st codified and defined in law what the legislature thought was “unprofessional for a physician or surgeon to disseminate misinformation or disinformation related to Covid-19, including false and misleading information regarding the nature and risks of the virus and its’ prevention and treatment…”

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The statute as the judge noted made the State Board of Medicine the arbiter of dis and misinformation—not a “standard of care” or “a standard of medical practice” real life measure—as the judge noted. A contemporary version of the Galileo Pope Urban VIII situation.

As far as I am able to discern legal counsel for our State Board of Medicine made the same right determination when Dr. Cole’s professional opinions were used against him when trying to revoke his medical license. Let it be noted that Dr. Cole was right far more often than any of the experts in our State including those on the Governor’s advisory Board, many at the Central District Health Boards, and most of all those who represented the interests of the large hospital systems and networks. The more time goes by the more correct the interpretation of the data and the opinions of many contrarian scientists and clinicians have been proven right. Same with published scientist clinicians like Dr. Marty Makary of Johns Hopkins, Dr. Jay Bhattacharya, and Dr. Scott Atlas of Stanford University, the thousands who signed the Greater Barrington Declaration and journalists like Alex Berenson.

Near the end of the ruling the good judge cuts to the bone not with legal terminology but with common sense: “the term “scientific consensus” makes it impossible to understand “what the ordinance as a whole prohibits.” See Grayned, 408 U.S. at 110.”

Key to understanding how this type of legislation or law is this statement by Judge Shubb:

“Another equally plausible (or perhaps equally implausible) interpretation is that any time a doctor’s conduct contradicts the scientific consensus, it is therefore contrary to the standard of care. Such a reading would distort the existing meaning of the term “standard of care” by creating an additional statutory definition in the context of COVID-19. “

To those who are trying to pass such legislation in Idaho—”It’s the standard of care stupid” One final quote from the end of the ruling I believe is pertinent to the Idaho situation:

Because the definition of misinformation “fails to provide a person of ordinary intelligence fair notice of what is prohibited, [and] is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

How refreshing. A judge from California with common sense and respect for our Constitution. Those critics of contrarian medical opinions during the Covid-19 political pandemic should look at this opinion closely. The First Amendment in protecting free speech also protects contrary scientific opinion. Without the ability for scientists to express those opinions, “science” would be put back into the dark ages.

That’s the way I see things from Garden City.

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2 replies on “Proven Science can’t be changed by Legislation”

Central District of California ruled differently creating a split. 9th Circuit Court of Appeals has taken up the case. If it affirms the Eastern District ruling it would arguably create a holding on so-called Medical Disinformation that would bind both Idaho and Washington as well as California

Agreed. Judge Shubb’s ruling is logical and well thought out compared to what the “experts” IN iDAHO ARE SAYINGL I look forward to watching this case move forward.

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