Licensed to Practice: The Supreme Court Defines the American Medical Profession by James C. Mohr (review)

This short, eminently readable book tells the story of a generally underappreciated episode in the history of U.S. medicine—passage of the first effective medical licensure law. Throughout most of the nineteenth century the medical marketplace was open to just about anyone who claimed to be a physician. Although several states authorized “regular” physicians to issue licenses as early as the 1830s, absent criminal consequences for practicing without one these licenses had little practical effect.

West Virginia was formed in 1863, and the unsettled nature of the new legal system following the Civil War meant that it was fertile ground for those wishing to rethink state control of physicians. The Medical Society of West Virginia, founded in 1867, was an effective enabler for such a project. They hewed obsessively to AMA guidelines for education and practice, prohibiting members from even the most casual contact with physicians who did not fit their model.

The society took as their goal the passage of legislation to limit medical practice to regular physicians. They proved to be politically astute, supporting physicians who successfully ran for seats in the state legislature. When they proposed the creation of a state board of health they focused on public health promotion, a less controversial issue than licensure, and one given salience by the threat of smallpox from nearby Pittsburg. The bill’s primary goal came near the end—the proposal that a person could practice medicine in West Virginia after either graduating from a “reputable medical college” (which was meant to imply a regular medical college), passing an examination, or demonstrating that the person had been in practice in West Virginia for ten or more years. Those who violated the law would be subject to criminal penalties. After legislative changes and debates, well described in the book, the bill was signed into law in 1881.

A challenge came quickly. Frank Dent, holder of a diploma from the American Medical Eclectic College of Cincinnati and no stranger to the Society, was denied a certificate in 1882. He challenged the ruling in circuit court, was found guilty, and was fined fifty dollars (the lowest amount permitted under the law). The case eventually made its way to the U.S. Supreme Court (one of whose members was a physician). There Dent claimed that the law violated the Fourteenth Amendment to the Constitution by depriving him of his occupation without adequate due process. In January 1889 Justice Field observed for the Supreme Court that doctors deal with “all those subtle and mysterious influences upon which health and life depend” (p. 150), and since the average citizen was not prepared to judge a physician’s qualifications, the practice of medicine was not an avocation but a governmentally-recognized profession. The court did not state just how the government should regulate the profession, but left no doubt that they could do so. Over the following decades state licensure of physicians became the norm.

Mohr’s sources include not only medical writings and newspaper accounts but also careful analysis of a plethora of legal sources, including both court rulings and contemporary discussions of the rulings. Legal historians might wish for a bit more about just how the Dent decision was used in the passage of subsequent licensure laws. But this is not only a book about legal theory. The author pays nice attention to the social implications of regulating medical practice as well as the importance of geography. The book will appeal to a variety of readers, and could be effectively used in classes.

Mohr clearly explains the rationale for opposing licensing and makes it easy to understand why for over a decade legal authorities remained confused and unconvinced by the decision. This book will be a useful case study for historians attempting to make the case for the contingent nature of change to non-historian policy makers.

The fundamental...