A few weeks ago, I came across the fold out chart pictured below in a May 1934 issue of the Federation Bulletin. The data sheet accompanied a paper presented by Harry Anslinger*, the U.S. Commissioner of Narcotics, at the February 1934 annual meeting of the Federation of State Medical Boards (FSMB). The Bulletin also published a transcription of the subsequent Q&A between presenter and audience.
The commissioner’s responsibilities, established in 1930 as U.S Treasury Department’s Federal Bureau of Narcotics, included determining the quantity of crude opium and coca leaves allowable into the United States for medical and scientific purposes. Dispensing or prescribing derivatives of these materials fell under the Harrison Narcotics Act (1914), legislation ostensibly enacted as a tax/revenue measure though its underlying purpose and subsequent enforcement ultimately regulated and limited access to narcotic drugs such as opium.
The legislation required authorized practitioners (e.g., physicians, dentists) to register with, and pay a small tax to, the federal government (Treasury Dept.) to legally prescribe narcotic drugs. In due course, the legislation helped to effectively criminalize drug addiction rather than handling it as a disease or medical condition requiring treatment.
As interpreted by law enforcement, the Harrison Act also allowed for prosecution of physicians who prescribed to addicts. Authorities pointed to the language in the law describing allowable prescribing as something done “in the course of his professional practice only.” Drug addicts were not patient according to law enforcement. Thus, prescribing to them became illegal. Initially, the US Supreme Court supported this approach with two decisions (Webb v. US, 1919 and US v. Behrman, 1922) that upheld prosecutions against physicians prescribing narcotics to comfort addicts in withdrawal or as part of “cure” programs.
Federal prosecution of physicians under the Harrison Act was later struck down by the U.S. Supreme Court (Linder v. United States, 1925) as the court cited the regulation of the practice of medicine as a state prerogative. Thus, it fell to the individual states to regulate, and if necessary prosecute, illegal prescribing as a violation under their state’s medical practice act.
So how do state medical board figures into all this? Let’s go back to the pictured chart. The data—while confusing with its densely packed columns and small font headings—reflected cases brought by Anslinger’s office against 705 physicians between October 1, 1930 and December 31, 1932. The commissioner’s office had been working with state boards so that they could take appropriate action involving their licensees.
The commissioner lauded the cooperation his agency had received from multiple state medical boards and, in particular, Dr. Charles Pinkham (Executive Secretary for the California Medical Board).
Yet at the time of his presentation to the FSMB in 1934, 488 cases (nearly 70%) were still pending any formal action by a state medical board. While the wheels of justice understandably turn slow, Anslingre’s presentation sounded a note of concern that they may have ground to a halt entirely in many of these cases.
Explanations for the backlog and what initially appeared to be state board inactivity came out in the Q&A. Much of the problem arose from state law—usually a critical absence of clear authority allowing the board to act. For instance, the medical practice act in several states did not have narcotic violations as a basis for a license revocation. In nearly two dozen states, license revocation was tied to violations of state law—not federal law such as the Harrison Act.
In other instances, license revocation was the only sanction open to the board. For example, in Minnesota, the board’s only option for a physician’s violation of a narcotics law or in cases of drug addiction was to revoke the license. The board did not have the option to temporarily suspend a license for a physician seeking to rehabilitate. Similarly, the board had no authority to reinstate a medical license once it had been revoked. Noting this reality, a Minnesota board member admitted, “We hesitate to revoke.”
Americans have a tendency to wax nostalgic about the past—to view a time period like this one eighty years ago as somehow “simpler” than our world today. I shared this piece from 1934 to underscore the complexity of medical regulation even then. Regulators faced a challenging interplay of state and federal actors and competing philosophies in addressing substance abuse. They labored under imperfectly drawn state laws that sometimes handcuffed them in trying to address (in a fair and reasonable manner) cases involving their licensees.
Certainly, they weren’t perfect. A backlog of 488 cases is tough to explain without acknowledging that other factors were probably at work too—resource limitations; protection of fellow physicians, etc. I’ll dedicate space in this blog soon to talk about medial boards’ disciplinary function.
[* If the name Harry Anslinger seems vaguely familiar to you, it is likely because of recent stories concerning the U.S. Dept. of Justice’s pushback against state laws legalizing recreational use of marijuana. Authors studying the criminalization of marijuana in the US point to Anslinger’s controversial efforts and ‘racialization’ of the issue beginning around 1936-37]
The opinions expressed here reflect the views of the author and do not represent those of the FSMB.
H.J. Anslinger, “Traffic in Narcotic Drugs,” Federation Bulletin (May 1934): 136-147.