Behind every U.S. Supreme Court case there is a human story. It is easy to lose sight of that truth behind the Latin phraseology and abstract legal doctrines. Sometimes the humanity involved springs to our mind just from the name of the case: Brown v. Board of Education of Topeka Kansas (1954), Griswold v. Connecticut (1965) or Loving v. Virginia (1967). It is impossible to think of these cases without contemplating lives and stories of Linda Brown, Estelle Griswold, Mildred and Richard Loving.

Last time on this blog I discussed the little known but important U.S. Supreme Court case, Hawker v. New York (1898). With the legal elements of the case covered in my last post, this time we’ll explore the unexpected human story behind this case.

I started by looking again at the text of the Supreme Court case that infamized Dr. Hawker. To my surprise in re-reading the case, I realized that the court never identified Hawker by his full name or offered any biographical detail. They referred to him solely as “plaintiff” or “defendant” depending upon his status in the chain of cases leading to the highest court. Several cursory Google searches for Hawker v. New York proved unavailing as virtually everything I saw simply looped back to the same non-specifics in the text of the court decision.

I tried another tact. I used my Newspapers.com account to search for news stories on Hawker. I searched first for items appearing in 1898 to see if I could learn his full name. Easy enough –Benjamin Hawker (New York Times, March 10, 1898, p. 10) Then I searched New York papers for the1878 trial and conviction that figured centrally in the Supreme Court case. Cue flood gates opening! As I quickly learned, Dr. Benjamin Hawker appeared in newspaper stories as early as 1871 and often thereafter until his death in 1903. Hawker’s medical practice can be traced definitively to 1870 in New York (though I suspect it began even earlier) and continued for decades under several names: Dr. Benjamin Hawker, alias Dr. West, alias Dr. Perry.

(Note: To avoid confusing the reader, I will use the name Hawker throughout most of this post even when the cases involved his arrest as West or Perry)

Piecing together Hawker’s personal history required a good deal of patience in wading through scores of news items. Most of these dealt with a series of medical disasters resulting from his services to “Ladies in Trouble” (his October 18,1870 ad in New York Daily Herald). If we exclude the legal cases leading to the 1898 Supreme Court decision, a total of four cases constituted the bulk of this press coverage over the years The death of Emily A. Post (1871), the death of Christina Brecht (1876) and a pair of 1877 medical malpractice cases involving Maggie McLoon and Amelia Hyde. Further notoriety for Hawker stemmed from his 1894 arrest as part of a major police operation that swept up sixteen “malpractitioners”; and, of course, his 1896 arrest for violating state law that culminated in Hawker v. New York two years later.

As I parsed through all this material, I realized rather quickly that Benjamin Hawker was no medical innocent paying the price in 1896 for a single bad decision committed years earlier (1877). Nope. Hawker knew precisely the risks he took in the medical services he chose to provide. His eyes were wide open to the realities of medical jurisprudence in New York state…and he practiced accordingly as evidenced by his use of the Perry and West aliases.

So who was Benjamin Hawker? And where did he come from? How did he arrive at the practice of medicine in 1870? What kind of training did he receive?

Hawker was born in December 1837 at Somerset, England, one of six children to Hugh Hawker and Ann Sibley. His given name at birth was Benoni, a name of Hebrew origin. (Benjamin was the commonly adopted Westernized version of Benoni) Two of his older brothers shared names with similarly strong Biblical ties: Jabez, Theophilos.

There is little else that can be said of Benjamin Hawker’s youth except that in 1857 he was committed to the Ilchester gaol in Somerset. His crime? Stealing two shillings from his employer which resulted in three months at “hard labor.”

He arrived in the United States sometime in the 1860s. It is difficult to say when as a well-documented file in Ancestry.com identified an 1860 departure from England though Hawker later testified at an 1871 trial suggesting he arrived in the U.S. near the end of the Civil War. As part of that same testimony, Hawker claimed to hold a “certificate” from Guy’s Hospital (London) and to have been engaged in medicine for ten years. He acknowledged that he held no diploma though he asserted attendance at 2-3 medical courses. In 1876, he obtained a degree (or so he claimed) from New York Eclectic Medical College.

It is difficult to know how much of Hawker’s statements we can accept as fact. For instance, in that same 1871 testimony he acknowledged that his last name wasn’t Perry (the name under which he practiced medicine). In fact, he claimed his name was Benjamin Arthur. Was this further obfuscation on his part? Abandoning one alias for another? Perhaps except that “Benoni Arthur” can be found in the 1870 federal census for New York city. Occupation? stencil maker.  

It seems unlikely to me that Hawker practiced medicine as a means of support in the years immediately following his arrival in this country. He may well have survived as a stencil-maker; then again, we know that in October 1870 he was operating as Dr. Perry from his office at 55 Bleecker Street. Equally plausible is the possibility that “stencil maker” was nothing more than a convenient lie to the census taker. And the name “Arthur”? Well…perhaps that was his middle name or perhaps he just made it up, like stencil maker.

One thing is clear. Hawker kept offices on Bleecker Street throughout most of his career; and he often worked in conjunction with a female colleague. In the earliest years, this involved “Madame” Mary Van Buskirk; later this included Madame West, a woman named Mary Dunning or Gifford (accounts vary). His newspaper ads with the latter often stated that patients could “consult Dr. or Mme. West” at the Bleecker Street office.

Hawker’s first serious brush with the law as a physician occurred in 1871. Hawker and Van Buskirk’s efforts to terminate Emily Post’s late-stage pregnancy resulted in the death of both mother and child. The timing couldn’t have been worse for Hawker. His case overlapped with a lurid New York abortion death case, involving Dr. Jacob Rosenzweig (aka Dr. Asher) that captured national attention as the trunk murder mystery. In September 1871, a jury convicted Hawker of 4^th degree manslaughter and applied the maximum sentence: two years imprisonment. In a separate trial, his colleague Madame Van Buskirk walked after a hung jury.

By 1874, Hawker was out of jail and back in practice at his Bleecker Street address, Now, however, he practiced as Dr. West based upon his advertisements in the local papers. The death of one his patients, Christina Brecht, in February 1876 and her deathbed confession brought local authorities to Hawker’s office doorstep once again. Two elements are worth noting from this case.

First, if Hawker had hoped to cover his track through the use of a new alias (Dr. West), events soon proved him wrong. His alias cover fell apart quickly as within a few days, the arresting officer from Hawker’s 1871 case identified him as “Dr. Perry” from Emily Post’s death.

The second unusual element was the quiet dismissal of the Post case despite significant press coverage in February-March 1876. After May, the case disappeared from the press. I could find no subsequent references to the case that ever mentioned a trial or conviction. I can’t help wondering if Hawker’s allegedly healthy holdings in three different banks may have assisted him in discreet, behind the scenes fashion. The Philadelphia diploma mill criminal John Buchanan effectively deployed such a tactic to help legal paperwork disappear after greasing the palm of city clerks or aldermen. I suspect such possibilities existed in New York as well. The later 1895 NY Senate hearings under the Lexow Committee scandalized New York with its documentation of corruption (bribes, kickbacks) to police and others as a means of forestall scrutiny and arrests against physicians like Hawker providing illegal services. (Hawker appeared before the committee; his rival Newton Whitehead (see below) became a major witness)

As the various medical ads in the New York newspapers indicate, Benjamin Hawker had plenty of competition in drawing patients for his services. In 1877, Hawker fell into a protracted bitter rivalry with another physician, Dr. Newton Whitehead—an almost irrational rivalry whose end result saw Hawker convicted and sentenced in 1878 to a long prison term.   

The bizarre series of reprisals between the two started in September 1877 when a disgruntled former patient of Hawker’s (Maggie McLoon) made her way to the office of Dr. Whitehead. She complained that Hawker relieved her of $50 (“all she had”) yet failed through his “operation” to terminate the pregnancy. Whatever the source of the enmity between the two men, Whitehead saw this as an opportunity to strike against Hawker. He escorted McLoon to an attorney promising she would “get justice.” The subsequent arrest of Hawker, Madame West and another associate led to the two doctors filing a series of legal complaints and counter-complaints with the courts. The headline of an October 3, 1877 news item summarized it best, “Doctors Quarreling.”

Matters only accelerated when Whitehead induced another Hawker patient, Amelia Hyde, to press charges related to an operation he performed on her. When Hyde failed to appear for the hearing, the case seemed dead–or so one would think. However, not yet content and eager to inflict his own blows against Whitehead, Hawker responded by filing a conspiracy charge of his own against Whitehead and Hyde. On the day of the hearing, Hawker went to court ready to support his conspiracy charge only to find that Ms. Hyde had shown up this time…and she was anxious to testify to Hawker’s medical malpractice.

The DA and judge resurrected the earlier dismissed case when Hyde failed to appear. This time Hawker’s luck ran out. Even the services of former New York mayor Oakley Hall, serving as Hawker’s attorney, couldn’t save him from a jury and press eager to see Hawker in the docket. Hawker played his last card—pressing charges with a resulting arrest of Dr. Whitehead—intended to keep his rival from testifying along with Hyde at his trial. All of this proved to no avail as the jury convicted him on March 1, 1878.

An unsympathetic judge sentenced Hawker, stating…:“Hawker, you have been convicted after a fair and impartial trial, upon an indictment for producing an abortion upon Amelia Hyde. You have been defended by one of the most famous lawyers in the country, but the jury convicted you. Upon that charge you are sentenced to be imprisoned in the King’s County Penitentiary for the term of ten years. That is all.”

Newspapers and social critics lauded the conviction. The Brooklyn Times Union congratulated District Attorney Isaac Catlin for producing the conviction, using almost precisely the same available evidence, that his predecessor Winchester Brinton had failed to secure. Anthony Comstock, leader of the New York Society for the Suppression of Vice, echoed the chorus lauding Catlin for securing a conviction.

In a letter published soon thereafter, Comstock told Catlin…“You started the ball in motion against this class of criminals, which, I trust, will not stop until every scoundrel in this damnable business of child murder gets his deserts. The public owe you and his Honor Judge Moore more than congratulations or thanks in this case.”

Hawker and his attorneys filed various appeals—all of which failed. Hawker appears to have served the entirety of the ten-year sentence.

A decade spent in prison appears to have changed Hawker little—or perhaps he couldn’t envision any way to reinvent himself or make a living other than what he had by doing since 1870. In 1894, he and Whitehead were among the sixteen physicians, midwives and other self-styled doctors caught up in a police raid targeting medical “malpractitioners.” The assistance of an agent from the Society for the Enforcement of Criminal Law ensured major press coverage that included the New York World’s sketch artist presence at the chaotic court room scene. He quickly sketched the more infamous suspects, including Benjamin Hawker. This hastily drawn image is the only likeness of Hawker known to exist. Hawker posted $2,500 bail and disappeared.

Arrested two years later in 1896 for violating the state law barring felons from medical practice (described in my prior blog post), the legal path began that would take Hawker’s case all the way to the Supreme Court.

Hawker seems to have settled into a discreet medical practice in the aftermath of these legal decisions and effectively stayed off the radar of the authorities. He apparently supplemented his income by housing boarders at his home. His legal tribulations still weighed heavy with him as evidenced by his pursuit, and acquisition, of a commutation from New York whereby the state “restored [him]to all rights of a citizen.”

In June 1903, Hawker reappeared in the news in shocking fashion–as the victim of a brutal assault that occurred from a botched home-invasion robbery.

A former boarder, Dudley Bartlett, and his accomplice made plans to surprise, force him to open his safe and then chloroform him before making their escape. Little went according to plan as the accomplice bolted when Hawker and Bartlett engaged in a violent struggle for the gun. Repeated blows to the head and neck left Hawker badly injured and Bartlett apprehended.

Benjamin Hawker died at his home about six weeks later. The coroner attributed death to a diabetic coma, insisting—after consultation with Hawker’s treating physician, that the death was unrelated to the assault and injuries sustained six weeks earlier.

I’m torn as to what to make of Dr. Benjamin Hawker and his career. My curiosity about him stemmed simply from wanting to know the human story of the man behind a key Supreme Court case in the field of medical regulation. I wasn’t sure what I’d find in looking for him. I didn’t expect to find…well, I’ll just call him what many would—a career abortionist. Though I find myself loathe to condemn him with the sweeping moral assertions that some would impose.

Then again, perhaps nothing I found should surprise me. The lives of real people and their life trajectory rarely fit into tidy retrospective categories and labels. Life is messy; history is equally so.

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.  

Sources:

“The Brooklyn Abomination,” New York Daily Herald, August 31, 1871, p.6

“Medical Murder,” New York Tribune, September 2, 1871, p. 2

“The Courts,” Times Union (Brooklyn), September 23, 1871, p. 3

“The Courts,” New York Tribune, September 25, 1871, p, 2

“Medical,” New York Daily Herald, February 8, 1874, p. 16

“Dr. West,” Brooklyn Daily Eagle, March 3, 1876, p. 4

“Brecht Malpractice Case,” New York Times, March 5, 1876, p. 12

“Charged with Malpractice,” New York Times, September 20, 1877, p. 8

“Doctors Quarreling,” New York Times, October 3, 1877, p. 2

“Doctor Perry,” Times Union (Brooklyn), January 29, 1878, p. 4

“Another Chance for ‘Vindication’,” Times Union (Brooklyn), March 4, 1878

“The Courts,” Times Union (Brooklyn), March 6, 1878, p. 4

“Brooklyn,” New York Times, March 10, 1878, p. 2

“Charged with Malpractice,” Brooklyn Daily Eagle, March 24, 1894, p.12

“Held for Awful Crimes,” New York World, March 25, 1894, p. 13

“Physician Assaulted and Brutally Beaten,” New York Times, June 28, 1903, p. 2

“Physician was Careful,” New York Sun, August 3, 1903, p. 10

If you have been reading this blog or following me on Twitter (@davearlingtontx), you probably have a vague awareness of two U.S. Supreme Court cases critical to the evolution of medical regulation in this country. The earlier of the two cases, Dent v. West Virginia (1889) is the better known thanks in large part to the scholarly work of James Mohr in Licensed to Practice (Johns Hopkins Press, 2013). Check out my May 2021 blog post for a refresher on Dent.https://armchairhistorian.blog/2021/05/

Less well-remembered and the subject of this blog post is Hawker v. New York (1898), a disciplinary case that complemented the Dent decision and its philosophic embrace of state licensing and regulation in medicine.

Hawker presents an intriguing case where the Constitutional prohibition against ex post facto laws (Article 1, Section 10) intersected with the Supreme Court’s doctrine of police powers exercised by the individual states, particularly in matters touching upon public health. I wrote about this important doctrine in a November 2017 blog post. https://armchairhistorian.blog/2017/11/

Hawker raised fundamental questions. For instance…

• Are an individual’s actions from twenty years earlier evidence of their current moral character?
• What if a reasonable requirement for current medical practice serves as an additional punishment for a past crime whose sentence has already been served?
• What are the limits to the police powers of the state? 

Dr. Benjamin Hawker had a troubled history as a medical practitioner in New York. His medical practice in the mid-1870s ran afoul on several occasions of the legal and cultural crusade against abortion led by Anthony Comstock and the New York Society for the Suppression of Vice. The key moment for Hawker (and this narrative) occurred in 1878 when the King County Court of Sessions convicted Hawker of criminal abortion and sentenced him to ten years in prison.

Fast forward nearly a decade. Now out of prison, Hawker returned to the practice of medicine in New York City, including continued provision of medical services placing him at odds with legal authorities and the court system. His arrest in September 1896 served as catalyst for a legal saga culminating in the Supreme Court’s decision in Hawker v. New York two years later.

At his 1896 trial, the New York City Court of General Sessions of the Peace convicted Hawker for violating Public Health Law (1895 rev., Sec. 153) which stated “any person who, after conviction of a felony, shall attempt to practice medicine, shall be guilty of a misdemeanor.” Hawker and his attorney appealed with a very specific legal argument in mind.

At the appellate court, the state presented the case as a simple matter—they pointed directly to Hawker’s 1878 felony conviction and section 153 of the 1895 public health law—i.e., Hawker had a prior felony conviction, defendant was caught practicing medicine; Hawker was guilty under New York law.

Hawker’s counsel argued that the law in question was written prospectively (i.e., with subsequent behavior in mind) and that the court erred by making a retroactive application of the 1895 law to an earlier (1878) felony conviction—an action they deemed ex post facto and thus, unconstitutional. In a February 1897 decision, the New York appellate court agreed with Hawker.  

In reaching its decision, the appellate court acknowledged the right of the state to regulate the practice of medicine and, in doing so, to set conditions—both initial and new —as “necessity for them may arise.” However, the appellate court did not see this scope of authority as carte blanche for the state.

While the requirement under the law for “good moral character” was reasonable, the appellate court stated that this must relate to the “present status or condition” of the individual. The court held that by “seiz[ing] upon a past offense and mak[ing] that, and that alone…a new crime” the state of New York had overreached. The court further stated that the overarching intent of the law seemed designed to uniformly “deprive all convicted felons of the right of practicing at all.” Here it pointed to earlier U.S. Supreme Court decisions (Garland, Cumming v. Missouri) regarding legal restrictions aimed at former Confederate leaders.

Benjamin Hawker’s appellate court victory proved satisfying but short-lived.

The case then moved up to the NY Supreme Court a month later. In reversing the appellate court’s decision, the NY Supreme Court focused on three main points. The first involved another look at the 1895 New York Public Health Law. Hawker and his counsel had argued (successfully) that this law was written with prospective or future behavior as disqualifying, citing the language in Section 153. The NY Supreme Court disagreed, asserting that the language of that section must be read along with an earlier section (140) which set basic qualifications for medical practice. That section of the law stated: “…nor shall any person practice medicine who has ever been convicted of a felony….”  [italics added] In pointing to that language, the NY Supreme Court ruled that the legislation had a specifically retrospective intent; that conviction of a felony, whether before or after 1895, disqualified an individual from practice of medicine.

The second major point identified by the court involved the assertion that the law was ex post facto and thus unconstitutional. Here the Court nimbly sidestepped the issue by pointing to Benjamin Hawker’s personal history. The court asserted “…it does not appear from the record…that he ever had any right to practice of the profession of medicine…and that no presumption can be indulged to that effect.” The Court claimed there was no evidence that Hawker ever studied medicine, obtained a medical diploma or even registered with the state to practice medicine. Thus, there was “entire absence of any evidence showing…he was deprived of any rights of property.” In other words, he wasn’t practicing legally, so there was no property right (i.e., his medical license) at stake. Think of this logic as “no harm, no foul.”

The final point addressed by the NY Supreme Court involved the doctrine of police powers articulated through a series of earlier U.S. Supreme Court decisions, i.e., the state’s authority to regulate the practice of medicine as a matter of public health. Here the Court sounded familiar notes on the unique role of the physician, necessary qualities of “trust and confidence” inherent to the nature of such practice, the legal precedent for states to impose “reasonable conditions and requirements” for practice, including good moral character. The court resolved the last point with the directness of Solomon—“the presumption of bad character attaches to a person convicted of a felony.”

While it is speculation on my part, I believe the NY Supreme Court’s sidestepping of the ex post facto element in the case is precisely why the US Supreme Court agreed to take up the case in 1898.

In a split decision, the U.S. Supreme Court sided with New York state. Justice David Brewer set forth the Court’s reasoning in its decision.

He began by acknowledging the “single question” presented by the case—the constitutionality of New York’s law relative to the U.S. Constitution’s prohibition against ex post facto laws. Brewer began with a recitation of the Court’s thought processes from a decade earlier in Dent v. West Virginia. To wit: The state’s acknowledged authority under the police powers doctrine to “prescribe…qualifications” for any individual or business impacting the health of the public; the reasonableness of qualifications calling for both knowledge and good character; and that the state can “make the record of a conviction conclusive evidence of…absence of the requisite good character.” Brewer conceded that “no precise limits have been placed upon the police power of a state”; signaling that such limits might yet be clarified in subsequent case law.  

Brewer continued by pointing to multiple state court decisions affirming the state’s right to include good moral character as a reasonable condition for the regulation of medical practice—specifically, the state’s authority to identify or determine “evidences” of what constituted good moral character. Thus, if a state such as New York determined that conviction of a crime precludes current or future practice of medicine, they are simply exercising res judicata, not imposing an unreasonable additional punishment. In essence, the majority opinion proved willing to grant the state a wide latitude under the police powers doctrine; showing strong sympathy for the broad concerns for public health set forth earlier in Dent. These considerations carried the day.

Interestingly, Justice John Marshall Harlan’s dissenting opinion focused almost exclusively on the issue of the ex post facto nature of the legislation. He argued that Hawker’s attorney had been correct in pointing to the precedents set by the Court in the Garland and Cummings cases.  In those cases, the Court showed a zealous protection of fundamental rights (life, liberty, pursuit of happiness), even for individuals once in open rebellion against this country. To wit: “exclusion from any of the professions…for past conduct can be regarded in no other light than as punishment for past conduct” and “any deprivation or suspension of any of these rights for past conduct is punishment.”

Reading the text of the Hawker decision today, what I find most striking is the deference and wide latitude offered to an emerging medical profession. I don’t believe this deference was a given at the time the Hawker and Dent cases reached the Court. We can look back at these cases today and see medicine poised for, and on the journey toward, what it would later become—the modern wonder that we see when we think of it now. The Court enjoyed no such prescience.

Here it is important to keep in mind the state of medicine at the time of the Hawker decision. While the late 19^th century witnessed major leaps forward in medical knowledge, there remained a distinct gap (chasm is more apt) when compared with advances in therapeutic treatment that lagged far behind. In essence, the medical profession had a far greater understanding of the mechanisms underlying disease and illness than its ability to effectively treat or eradicate many of them. This efficacy was still years away. So why did the Court side with New York state (and thus, the medical profession) rather than the Constitutional prohibition against ex post facto legislation?

I believe the answer rests with an assumption…one described by historian James Mohr. The degree to which the Supreme Court in Hawker and Dent placed medicine in a privileged social and legal position speaks predominantly to unspoken assumptions—that medicine and its practitioners had successfully transformed itself from vocation to profession; that a specialized body of knowledge existed that warranted, even demanded, close monitoring of those practicing medicine; that medical progress would continue on a path benefiting patients and public health in general. Perhaps not as fully or effectively in 1898 as one might desire but one sure to fulfill its promise in the years to come.

And Benjamin Hawker? Well…there’s a good deal more to share about this otherwise long-forgotten physician beyond the attachment of his name to an important Supreme Court case. Check back for my next post when I share the surprising things I learned about Hawker.

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

Sources:

William H. Silvernail, The New York Criminal Reports: Reports of Cases Decided in all Courts of the State of New York (Albany: W C Little & Co., Law Publishers), 1898

Marcus T Hun, Reporter, Reports of Cases Heard and Determined by the Appellate Division of the Supreme Court of State of New York (Albany: Banks & Brothers) 1897

Stephen K. Williams, LL.D., Cases Argued and Decided in the Supreme Court of the United States, 167, 168, 169, 170 US. Book 42 Lawyer’s Edition. (Rochester: Lawyers Co-operative Publishing Co., 1920)

Ask anyone who has conducted historical research and they’ll likely offer their own example of the scenario I’m about to share. You’re deep into researching one thing when suddenly you run across something entirely unexpected, only to find yourself irresistibly drawn away from what you were initially researching. Think dog sees squirrel and you’ll get the picture.

You feel exhilarated tracking a little-known subject or story that seems to offer intriguing possibilities; you also can’t help feeling irritated with yourself for losing focus and valuable time traipsing deeper into a research forest well-off the main trail.

In this instance, my research subject was Dr. Benjamin Hawker, the litigant in the key Supreme Court decision Hawker v. New York that secured the authority of state medical boards to discipline physicians. My attempts to trace Hawker’s backstory led to some extensive online research. Somewhere along the way, I stumbled upon “Dr.” Edward Dowdall. His story offers a reminder of the white-collar criminal elements that gravitated toward medicine in the late 19^th and early 20^th centuries. The persistent activities of Dowdall and his ilk created a good deal of additional work for state medical boards.

In spring 1906, Dr. Seymour Doss (S.D.) Van Meter, Secretary of the Colorado Board of Medical Examiners (pictured below) received an odd letter from an Illinois physician requesting a “favor.” Edward Dowdall explained that he wanted to obtain a Colorado medical license but didn’t feel “overconfident” the board would accept his application.

Furthermore, he wanted a Colorado license even though he didn’t wish to practice in the state. He confessed that there were so many doctors in the state that “I fear I would starve to death in Colorado.” Still, if Van Meter would “help me out” he (Dowdall) would return the favor with a gold watch and a diamond set locket.

Van Meter must have been surprised by the clumsy but direct bribe offer for a license he didn’t intend to use. In closing the letter, Dowdall made clear his ultimate objective—he wanted to practice in New York state. His plan was to get the Colorado license and bide his time (“lay dormant” for a few years as he described it) before using that Colorado license to get licensed in New York.

Dr. Van Meter joined the Colorado board in 1901. Over the subsequent twenty years of his service on the board, he enjoyed a front-row seat to many attempts to circumvent the regulatory system. In a delightful 1925 article, “Medical Forgeries,” Van Meter shared stories of the fakes, frauds and imposters that he and the board encountered. Dowdall’s awkward attempt at bribery—while striking in its directness—lacked sufficient deviousness to make the cut for inclusion in Van Meter’s1925 reminiscence piece, but he knew already how to handle such matters.

He responded to Dowdall with an “encouraging” letter and asked for two photos. Dowdall responded with the requested photos and information, intended (so he assumed) for his Colorado license application. Instead, Van Meter forwarded all their correspondence to Dr. James Eagan, Secretary for the Illinois Board of Health.

As it turned out, Eagan and colleagues were already investigating Dr. Dowdall for several misdeeds in that state. Practicing medical without a license was one infraction. The one that authorities seemed most focused on involved allegations that Dowdall attempted to secure money under false pretenses—specifically, securing hundreds of dollars from medical students and prospective midwives by promising he could “fix” things with the Illinois Board through a “charitable scrutiny” in scoring their licensing examination.

The case against Dowdall only grew stronger when the arresting authorities found bogus diplomas from the American Association of Physicians and Surgeons. Dowdall had apparently sold a large quantity of these for as little as $5 each.

What also came out at that time was the reason why Dowdall felt he couldn’t legitimately secure a license from the Colorado board: while practicing medicine in Detroit he had been sentenced in to 7 years for perjury in a botched effort by Dowdall and a female companion to punish a rival physician through a sexual assault claim. Dowdall sat in prison from 1899 until sometime prior to July 1905.

He apparently arrived in the Chicago area after Port Huron, Michigan police “ordered [him] to leave the city” in 1905. He was practicing medicine without a license in Illinois when Eagan received the bundle of letters from Van Meter.

A Chicago jury convicted Dowdall in August 1907 but from there the paper trail disappears entirely. We don’t know what sentence the court imposed. We don’t know whether Dowdall lingered in the area afterward or made his way east to ply his trade (medicine? Fraud?) in New York City.  

Dowdall presents a good example of the weaknesses of the medical regulatory system of that era. Take the matter of his medical credentials. In 1890s Michigan, the basis for a medical license was a diploma from a “legally chartered” institution. Don’t be fooled, however, by the gravitas suggested by the term, “legally chartered.” This represented a low standard as laws governing the issuance of school charters were notoriously lax in many states. A medical degree from a “legally chartered” medical school was easily obtained as Dowdall knew first-hand. While he claimed to have graduated from Trinity College (Dublin), the specific degree he presented for licensure was from the Independent Medical College of Chicago—a fraudulent school notorious as a medical diploma mill. (The Illinois Supreme Court revoked the school’s charter in 1899.)

Another weakness was the anemic statutory language in many states for regulating medical practice in those days. When Dowdall was convicted of perjury in 1899, only nineteen states gave their medical board the authority to revoke a license they had previously issued. Michigan was among the nineteen. So even though Dowdall had a perjury conviction, the Michigan board could not remove his license to practice…though local authorities apparently found ways to make life sufficiently uncomfortable that he opted to leave for Chicago.

Another weakness stemmed from the poor communication among and between medical boards. This was precisely the flaw that Dowdall intended to exploit with his clumsy attempt at a Colorado license. He knew that his Michigan license was tainted by his perjury conviction in that state. Thus, he needed a clean license as the basis for trying to secure a license in New York without having to reference his time in Michigan. If Dowdall could’ve obtained that Colorado license and laid low for a few years, his application for a New York license ca. 1908 or so would’ve been based upon that Colorado license and passing the New York licensing exam. If he could pass the exam (no small hurdle) he would’ve been open for business in the relative anonymity of New York City’s metropolis.

Looking back at this era, we can see this sprinkling of non-violent, white collar criminal types hovering around the fringes of medical licensure and practice. I don’t believe there were necessarily a lot of these types but just enough to require regulatory vigilance. I guess we shouldn’t be surprised. Once a license became mandatory in order to legally practice medicine, both the medical degree and the license itself acquired an economic value as credentials and as the basis for income beyond that of the average worker.  

As for Benjamin Hawker? Dowdall only sidetracked me so long. I’ll write about Hawker v. New York and the good doctor’s surprising backstory in my next posts.

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.

It would be naïve to think that this nation’s fraught history with race did not impact medical regulation. The challenge here, as for all the categories explored in this post, is pulling together a reasonable overarching narrative from fifty different states. If we pull back to a thirty-thousand foot view for medical regulation, however, there was one development that carried by far the greatest impact.

Black Americans faced limited opportunities for medical education and, ultimately, licensure in the late 19^th and early 20^th century. These opportunities were curtailed further by reform measures in medical education such as those by the Carnegie Foundation and the AMA Council on Medical Education. While the Carnegie Foundation’s Flexner Report remains the better known of these efforts, the Council on Medical Education’s inspection and rating system for U.S. medical schools proved even more impactful. You may wonder, “How is this relevant to medical regulation?” I’ll explain.

The Council created a 3-tier rating system that categorized all schools as Class A, Class B or Class C. The first two categories either met standards or were deemed capable of doing so with reasonable changes. Class C schools were classified as substandard and deemed unsalvageable. This categorization system carried a profoundly negative impact to historically black medical colleges (HBMCs), nearly all of which fell into the Class C grouping.

With the exception of Howard, HBMCs were proprietary endeavors chronically short on funding and resources. Yet they were often the only option available to black physician hopefuls. As state legislatures and medical boards –desirous of higher standards for medical education and plagued by persistent diploma mill style educational endeavors—eagerly embraced the Council’s rating system. The classification system fit conveniently and without ambiguity into state law and seemed a mom-n-apple pie recipe for improving the quality of this nation’s physicians.

The downside? Once this became a primary basis for licensure, HBMCs routinely found themselves assigned to the Class C category with their graduates’ ineligible for licensure in all but a few states by 1923. This reality contributed to a death spiral for all but two HBMCs (Howard, Meharry) and represented a massive setback for black Americans aspiring to become licensed physicians.

While this systemic factor cannot be emphasized too much, there was also impactful activity happening around licensing decisions specific to individual physicians. Here it is difficult to generalize without succumbing to speculation. So I will offer a few anecdotes though I acknowledge that the plural of anecdote is not evidence!

Justina Ford was the first black female physician licensed in Colorado. The year was 1902. Her encounter with the Colorado board left an indelible memory. As she related the story later, one board member told her: “I’d feel dishonest taking a [licensing] fee from you. You’ve got two strikes against you. First off, you’re a lady and second, you’re colored.” Her low-key response suggested she would be a persistent licensure applicant. “I know it. I thought it all through before I came. This is just the place I want to practice.”

Or take the example of the North Carolina Medical Board. For roughly 40 years, the Board’s administrative practice was to annotate the record of black licensure applicants with a “col” or “colored.” I wrote about this practice recently in the North Carolina Historical Review though the extant evidence and data available were ambiguous as to whether this impacted the scoring of their examination.

It seems highly unlikely that North Carolina was the only state medical board utilizing this annotation practice. It was common to see state medical journals and JAMA publishing updates from medical boards on the administration of their licensing exam…and also common for these narrative pieces to call out the number and/or performance of “colored” candidates. Clearly, someone at these boards was keeping track; and in an era when extended response/essay questions were the norm…well, scoring these licensing exam questions was inherently a subjective matter by the board member(s). Scorer bias—whether racial or subject-matter specific—was impossible to remove from such a testing format.

The Journal of the National Medical Association commented in 1910 on the challenge confronting black physicians to receive due and appropriate credit for their performance on state licensing examinations. Historian Neil McMillian asserted that it was “an article of faith” among black physician candidates in Mississippi that prejudice impacted licensing decisions in that state. The truth behind these concerns and perceptions—to the extent it is recoverable at all—is buried in records dispersed across fifty states. Records that may be suggestive but not explicit about this reality.

Final thoughts

I know that some readers will react to a blog entry like this and think I’m picking at an old wound…that I’m focusing unnecessarily on past shortcomings rather than celebrating the more recent successes in the regulatory narrative. I guess that is one way to interpret this post.

I would hope, however, that readers of this blog over the past few years will see this piece for what I intended—to share what I suspect is a lesser-known aspect of the history of medical regulation; to tell stories—both good and bad—about this unique field; and to inform today’s regulators about the rich history in their field as helpful context for the important work they do today.

Select sources:

Federation Bulletin spanning multiple years from 1915-1926.

“State Board Statistics” in JAMA. This extensive presentation of aggregated information/data appeared annually in April-May.

Marilyn Griggs Riley, High Altitude Attitudes: Six Savvy Colorado Women (Boulder: Johnson Books, 2006)

David Alan Johnson, “The North Carolina Medical Licensing Examination, 1886-1925: Analysis of Performance by Examinees from Historically Black Medical Colleges,” The North Carolina Historical Review (April 2021).

The opinions expressed are those of the author and do not represent the views of his employer (Federation of State Medical Boards)

In Part 1 of this blog post, we explored medical regulation’s imperfect past, including the barriers that confronted women as well as the nature of the appointment process to state medical boards. In Part 2, we consider the experience of two more groups: international medical graduates (IMGs) and osteopathic physicians.

IMGs

The regulatory narrative around IMGs is rather unusual compared to that of other groups. In the late 19^th and early 20^th century, IMGs—especially those from Europe—often possessed medical education credentials considered every bit as good, if not better, than most US graduates. Licensing presented a modest barrier to these physicians. This was at a time when IMGs numbers were relatively modest–only 3-4% of all the physicians examined in a given year by medical boards. This demographic reality that didn’t change until the wave of refugee and émigré physicians following the Second World War and the rapid expansion of US healthcare demanding more doctors.

All of which makes the anti-IMG sentiment that arose in the 1920s all the more unanticipated. The post-WWI era saw a reactionary wave sweeping American politics and culture with nativist and racist sentiment erupting in 1919. Conditions in medical regulation–once relatively conducive to IMGs–quickly turned uninviting.  

As the primary communication tool among and between state medical boards, the Federation of State Medical Boards’ monthly Bulletin offers a unique look into this deteriorating regulatory landscape in the 1920s. For the first time, inflammatory language began to appear in the Federation Bulletin with phrases like “alien invasion” and “undesirable foreign applicant” entering its editorial pages.

At this same time in the mid-1920s, states targeted IMGs directly with a mix of legislation and licensing requirements mandating full citizenship as a condition for medical licensure or, in some instances, that the individual begin the formal process by filing naturalization papers. Twenty-one states had such requirements in place by 1926 with the number rising to 47 states by 1958. By the 1930s, justification for such restrictions gained an added economic incentive as the country lapsed into the Great Depression.

IMGs were disadvantaged in another way–state medical boards lack of first-hand knowledge regarding the medical education provided even at elite European universities. Thus, the longtime practice by medical boards for using lists of “approved” medical schools whose graduates were deemed eligible for licensure proved problematic for IMGs. Such lists were originally created around US medical schools often based upon informed by information and data via the AMA Council on Medical Education and annual issue of JAMA reporting school performance on state licensing exams. These lists were always subjective to a large decree when considering schools outside the US. Consequently, these lists were a mechanism that could easily shut out IMGs (whether intentionally or not), especially those from lesser-known schools outside of Europe.

Osteopathic physicians

If the language directed against IMGs feels embarrassing to read in 2022, brace yourself for worse. Even harsher statements directed at osteopathic physicians can be found in nearly all the medical journals of the day, including the Federation Bulletin during this same period. The invective is noteworthy for its extreme nature and its frequency and persistence over a prolonged period of time. A few excerpts are representative. In 1915, the Bulletin labeled osteopathic medicine a “fraud” and denigrated its practitioners as a “pseudomedical cult.” The Bulletin editors and contributors questioned whether osteopaths deserved the title of physician and lamented legislative efforts to create separate licensing boards for them. The Bulletin further decried osteopathic medicine’s “fallacious claims,” characterized its treatment regimen as bordering on “criminal” and argued that “no conciliatory tone” should be adopted in interacting with osteopathic physicians.

In one regard this was nothing new in American medicine. The animus directed against osteopathic physicians by medical “regulars” represented another chapter in the profession’s tawdry nineteenth century internecine war against homeopaths, eclectics and other “irregular” practitioners. Yet the lingering effects of this bias are far more significant. The lines of demarcation erected between MD and DO continue to this day, impacting accreditation, licensing, examination and certification related to physicians. Medical regulators of the day fought long and hard to deny legal recognition to osteopaths; and when that failed, they sought to curtail their legal scope of practice and confine them to separate licensing boards. Still not content, the profession succeeded in creating basic science boards in multiple states as a screening tool constructed with with DOs, chiropractors and others in mind. T

Some may be surprised to learn that there are still 13 states with separate MD and DO licensing boards—a questionable decision involving taxpayer dollars with boards performing largely identical functions in verifying credentials, discipline and rule-making. Similar parallel systems are in place for medical school accreditation and even the licensing examination. With any luck, the recent success in consolidating what had been separate accrediting bodies for MD and DO graduate medical education programs will set an example to be followed elsewhere, e.g., medical school accreditation, licensing, examination.

In the final post on this topic, we will consider race and racism in the history of medical regulation.

The opinions expressed are those of the author and do not represent the view of his employer (Federation of State Medical Boards).

I’ve debated how I wanted to begin this post. I finally decided to open with the two pictures you see below. Both show the governing board for the Federation of State Medical Boards, the national organization supporting medical licensing authorities throughout the U.S.  On the left is the board in 1960; on the right, the current board. The two photos offer a striking contrast and they are also representative of this board’s composition—and that of medical regulation generally—in their respective eras.

Looking at these photos, it’s tempting to craft a soothing narrative, one allowing us to pat ourselves on the back and feel good about the progress we’ve made. Some might say: “Why shouldn’t we?” The visual evidence of progress in terms of diversity is obvious and worth celebrating. Yes, absolutely. Still…contenting ourselves with just that story tends to gloss over the harsher features in the long history of medical regulation, including systemic factors that may still be relevant.

Let’s start with what I think is a key to understanding this history: Medical regulation justified its creation as serving the interests of the public; yet for most of its history, this regulatory framework reflected the demographics, interests and priorities of the medical profession, just as much, if not more than, those of the public.

Medicine as a profession has enjoyed significant latitude in policing itself, i.e., “self-regulating.”  While the self-regulatory aspect of medicine today is far less pronounced than it once was, the long historical record, including the late nineteenth century creation of state-based licensing, reflects a clear self-regulatory model. This means that any bias and discriminatory elements in the profession tended to flow inexorably into medical regulation as well. How so? Let’s start with gender.

Women

From an historical perspective, medicine as a field has not been especially inviting of women. Similarly, positions of authority within the field were few and far between for women until more recent decades. Consequently, women were absent from medical boards throughout most of their history.

Granted, we can find the unusual historical first (Dr. Adele Hutchinson appointed to the Minnesota board in 1899) but otherwise the best evidence suggests medical regulation saw few women participating until the 1980s. For example, consider just a cursory breakdown by gender of medical board members between 1985 and 2018. Women comprised only 16% of all board members in 1985. Even that figure is arguably misleading as there were 17 boards with no women serving at all at that time. In 2018, the figure rose to 33% for women serving on state medical boards.

And what of the long period preceding this? Absent a historical listing of all state medical board rosters, it is impossible to offer a definitive statement characterizing the gender landscape for medical regulation between Adele Hutchinson and the mid-1980s. However, there is suggestive photographic evidence. The Federation Bulletin—a monthly FSMB journal—published group photos of medical boards on a periodic basis between 1956 and 1984. A visual review shows that the Bulletin published 29 such photos showing 254 people—only 6 were women. While the available evidence is admittedly limited, it seems sufficient to safely state medical regulation remained male-dominated until recent decades.

Systemic Factor

I know that some will greet my assertion of an historically male-dominated medical regulatory system with a collective, “Duh!” Sheer numbers were one factor. The number of female physicians in this country hovered around seven to eight thousand from about 1900 to 1940. Yet numbers alone don’t tell the story. Instead, it is important to recall the mechanism by which individuals made their way onto state medical boards.

In almost all instances, state medical board members were (and remain today) gubernatorial appointments. In some instances, unilaterally appointed though often with input from the profession via the state medical association. Gender and racial norms throughout the first half of the 20^th century differed significantly from today. At a time when Jim Crow segregation predominated in much of the country and women were still fighting for a Constitutional right to vote (1920), the power dynamics in medicine—and thus medical regulation—were slanted almost entirely toward white, male physicians. In essence, even if women or persons of color wished to serve on a state medical board, the likelihood of their doing so was slim at best simply due to the power dynamics at work.

This is an important point that should not be glossed over. Access to power—often predicated upon proximity to, or personal acquaintance with, persons already in a position of power or influence—remains important even today. Talk to individuals appointed to a state medical board today and two themes often crop up as they relate how they came to be appointed. Their stories usually involve either (1) a personal relationship with someone in a position of authority/influence—sometimes even the governor him/herself, or (2) prior direct political engagement or activism bringing the person into contact with key figures in the decision-making dynamics. Whatever the collective composition of state medical boards today (and none of us know precisely what it is), it is undoubtedly much more representative than its past iterations. But it is also still impacted by the dynamics of power and access to that power.

In part two of this blog series, we will consider the regulatory experience of two more groups—international medical graduates (IMGs) and osteopathic physicians. A century ago regulators targeted both groups with measures intended marginalize and limit their ability to practice medicine.

The opinions expressed are those of the author and do not represent the views of his employer (Federation of State Medical Boards)

Writing about the history of medical regulation means spending a fair amount of time poking around the internet, browsing through online archives and searching Google Books. While the internet includes plenty of crap, there’s also valuable material hiding in plain sight for those willing to look for it. Take for example what I ran across recently: annual reports published by the Maryland State Board of Medical Examiners.

These reports (1914, 1916, 1918, 1920, 1922, 1923) spanned nearly a decade over a century ago. Now I suspect some of you are thinking: “What possible interest could these have today? Aren’t they just dry as dust reports from government bureaucrats?” I understand that sentiment; yet you’d be surprised by what we can glean from these annual reports.

First, these reports serve as a reminder that the primary role and function of medical boards has evolved in fundamental ways. Most board carried the title “Board of Medical Examiners” for one reason: the vast majority of their work involved writing and administering a licensing examination twice a year—usually May or June and then again late in the year. Things are much different today. By the mid-1970s state medical boards had collectively removed themselves from writing their own exams in favor of national exams. By 2000, they relinquished administration of the exam to national test entities that developed them.

A century ago, however, state medical boards like that in Maryland did the heavy lifting for these exams. These reports record that Maryland examined 928 physicians over the thirteen test administrations documented here. Their exam consists of ten  extended response items in nine subjects: Chemistry, Anatomy, Physiology, Pathology, Obstetrics, Surgery, Materia Medica, Practice of Medicine, Therapeutics.

And the exam data from these reports? If we exclude the individuals retesting just the failed portion from a prior exam, there were 706 full test administrations. What can we glean from the data? Several things. First, the exam presented a modest hurdle to prospective licensees.  Of those 706 test administrations, 651 were passing (92%)—a figure not that far removed from USMLE first-taker pass rates for US students/grads.

These reports also tell us a good bit about the demographics of Maryland’s doctors. Specifically, the licensed physician population in Maryland was largely homegrown. The vast majority of physicians tested by the board (86%) graduated from medical schools within the state or the District of Columbia. There wasn’t much diversity either. International graduates were quite uncommon—only fifteen appeared for a licensure over the entire period. A total of 38 graduates from one of the historical black medical colleges of that era presented for licensure.

I mention demographics, in part, because it seems  relevant to my second major observation in reading this reports: There is a distinctly provincial element that I detect in reading these reports—one in which the interests of medical licensure and the medical profession run parallel and often overlap. For example, the board’s twice yearly licensing exams were conducted with a large assist by the Medical Chirurugical Society of Maryland which contributed physical space for the exam. The board apparently reciprocated when it could. One year the board closed its books with excess funds and used the opportunity to contribute $1,000 to the MedChi Society’s building fund. I guess we shouldn’t be surprised as the annual report’s title identified it as a report to “the Medical Chirurgical Faculty of Maryland.”

Now, I don’t wish to overstate this provincial element as these reports also reveal an attentiveness to issues and trends happening outside the state. That was certainly true with the board’s exam. The board’s 1914 report commented favorably on an amendment to state law allowing the board to incorporate a “practical” component to the licensing exam, e.g., lab work, directly observed interaction with a patient, etc. Two years later the board commented favorably on the first administration of the NBME Parts certifying exam. The launch of the NBME was “favorably received” as the opening of a “new era” with board member Dr. Herbert Harlan as one the staunchest supporters of NBME.

Other annual reports commented on leadership changes at the Federation of State Medical Boards and more stringent educational requirements set by the AAMC for the nation’s medical colleges (including the use of matriculation exams) while lamenting the steadily rising cost of medical education. Obviously, Maryland wasn’t a true provincial backwater with Johns Hopkins in state and the District of Columbia on its border.

So what then do I mean by characterizing these reports as provincial? Think of it this way.  Looking at any century old document represents an exercise in “backward reading.” Unlike the writer of the document, we enjoy the luxury of knowing what happened in the century that followed. One of the things that is so striking in reading these reports is the sense that they were written as an intra-professional document intended for the community of Maryland physicians represented by the Society…a sense that the medical regulator writing the report was speaking to a peer, a colleague in medicine, whose duties may not have included the licensing function but whose interests and priorities were shared jointly as medical professionals. In essence, the reports speak far more to the profession than the public.

This is evident with the space given in these reports to initiatives such as the crackdown on illegal practitioners (1914, 1918, 1920, 1922, 1923). This focus on reining in unlicensed physicians and non-physician healers doesn’t surprise me. Read enough of the late 19^th and early 20^th century medical literature and you realize the medical boards defined “discipline” in a far more limited way in those days. Medical boards pursued discipline as an exercise what I have termed as boundary maintenance, i.e., guarding the profession against scope creep by chiropractors, midwives, optometrists and, in those days, osteopathic physicians. The 1922 report included a lament that somehow this task had been “comparatively eas[ier]” several decades earlier when the boards had simply to chase after “notorious charlatan[s]” and eliminate diploma mill grads. This was probably more rose-colored nostalgia than reality but still…the board felt under assault by illegal practitioners who “resourcefulness” and identity “disguises” seemed unlimited.

This seemingly Sisyphean task exhausted the board and its members if the periodic complaints about the public in these reports are any indication. Irritation with the public expressed itself in various ways—genuine puzzlement as to why the public failed to appreciate the profession’s efforts of their behalf. To the board, continued popularity of medical fads and “cults” simply reflected that the public mind is “uncertain” if not downright fickle. Surprisingly enough, one report ended with a long passage in which the frustrated board offered to simply throw up its hands. Rather than erecting a large mechanism to track down illegal practitioners such as the California board had done, they wondered aloud, “Why bother?”  Maybe the state should just handle medicine as a “local option” issue just like alcohol had been t for treated for so many years prior to Prohibition? If the locals want to license a Christian Scientist, go ahead. If they want non-degreed physicians, why not?

This philosophical throwing up of ends didn’t extend beyond the 1918 report. And yet…it seems that the board’s report pulled back the veil, just briefly, to show its true feelings—feelings seemingly aligned as much with professional pride as a regulatory commitment to public health.  

The opinions expressed are those of the author and do not represent the views of the Federation of State Medical Boards.