Kennedy Institute of Ethics Journal

When picking up a book titled Licensed to Practice: The Supreme Court Defines the American Medical Profession, one cannot be faulted for expecting a rather dry legal (and perhaps historical) discourse on the Supreme Court case(s) that cemented medical licensure as the norm of American life. James Mohr dispels these expectations from the very first page of the volume. Instead of recitation of legal doctrine (on which more later), Mohr begins with a murder mystery. While we know from the very first pages the answer to “whodunit,” the rest of the book masterfully explains why they did it. As it turns out, what led to the murder was an intense fight over the proper way to practice medicine.

Mohr’s work is an entertaining read, but behind the colorful history of some larger-than-life characters in post-Civil War West Virginia lie [End Page E-6] real lessons and questions about the control over access to the medical profession.

After setting the stage with the murder of one of the book’s protagonists, Mohr sheds light on the unenviable state of medical science in post-Civil War America. The reader learns that most physicians and their prescribed treatments were not grounded in any science, and many were outright fraudulent. While that, in and of itself, is perhaps not a great revelation, what is striking is that these shortcomings afflicted not just fly-by-night charlatans, but also the “Regular” physicians who held degrees from prestigious institutions. And to the extent that the latter group did have some scientific underpinnings for its practices, the patients were still no better off, as the scientific knowledge of the day (such as it was) rarely translated into clinical success. That is certainly not the story that is often presented by, among others, the American Medical Association. Instead, the late 19^th and the early 20^th century are often presented as a time when the benevolent forces of education, science, and true medical cures battled the dark forces of ignorance, superstition, and harmful medical treatment. As Mohr shows, the reality was far more complex. Not only were multiple scientific questions unsettled, thus making multiple (and often conflicting) methods of treatment quite appropriate (even if with the passage of time, one of the methods proved to be erroneous or even detrimental), but the clinical outcomes were hardly dependent on the level of scientific knowledge. Thus, the fight over medical education, practice, and licensure, was ultimately a fight over economics and prestige. Mohr’s book does an excellent job in showing this to be the true motive for the moves towards licensure rather than the encomiums to “[s]cientific advancement, standards for medical education, launching a program of medical ethics, improved public health” (AMA).

The true motives for the initial push for physician licensure identified by Mohr are hardly confined to the late 19^th century. The guild mentality that drove Dr. James Reeves – the early chief proponent of West Virginia’s licensure regime – has survived him and is alive and well in today’s licensure boards and medical societies. While Mohr’s book was limited to the initial fights over the licensure and in the Supreme Court case that resolved the legality of these laws, and therefore it is understandable that the book doesn’t delve into licensure and credentialing debates subsequent to Dent v. West Virginia, Mohr seems to accept that the purpose of licensure in today’s America is finally patient’s protection rather than physicians’ economic interests. Thus, he writes “[f]ortunately for American society, [End Page E-7] the policy wager made in West Virginia in 1882—and elsewhere over the next four decades—eventually paid off in the form of significantly better treatments for a host of maladies” (160). But in many ways, this confuses correlation with causation. It is true that the licensing laws helped drive from the marketplace out-and-out charlatans, and it is equally...