Lewis A. Grossman, American University College of Law; Cornell Law School, has published Orthodoxy and 'The Other Man's Doxy': Medical Licensing and Medical Freedom in the Gilded Age. Here is the abstract.
This is a draft of Chapter Two of my book-in-progress under contract with Oxford University Press titled You Can Choose Your Medicine: Freedom of Therapeutic Choice in American History and Law. This chapter shows how freedom of therapeutic choice remained an influential theme in American policy and thought in the Gilded Age. Despite the almost universal restoration of medical licensing after the Civil War, the new licensing regimes were drafted and enforced in ways that protected the rights of practitioners and patients of nonorthodox schools of medicine. This chapter starts by briefly describing the main alternative medical sects during the Gilded Age, including Homeopathy, Eclectic medicine, Christian Science, and Mind Cure. It then examines the resurgence of medical licensing and shows how the continuing popular preference for freedom of therapeutic choice was reflected in the medical licensing statutes as written and implemented. The chapter considers the meaning and impact of Dent v. West Virginia, the 1889 Supreme Court case upholding medical licensing, and it explains how courts, largely as a result of this decision, played little role in guaranteeing freedom of therapeutic choice during this period. Chapter Two then explores the content of the arguments directed against discriminatory medical licensing in the Gilded Age. It discusses how these arguments were “constitutional,” even though they occurred almost entirely outside of court. The chapter considers the persistence of four strains of medical freedom rhetoric from the antebellum years (bodily freedom, economic freedom, freedom of belief, and freedom of inquiry), and it also identifies some important differences between the anti-licensing literature of the two eras. Chapter Two concludes by examining the overall political philosophy of medical freedom activists during this period, in particular the extent of their libertarianism.Download the chapter from SSRN at the link.