Dent v. West Virginia

My last post shared the story of Nathan Aiken: the first physician to have his license revoked by a medical board and the subsequent court case presenting the first challenge to a board’s legal right to do so. Aiken v. State Board of Health set the stage for the U.S. Supreme Court’s Dent v. West Virginia (1889). The relatively modest attention devoted to Dent belies its importance to medical regulation…and as the historian James Mohr made clear in Licensed to Practice, the court’s decision was no foregone conclusion.

These are the facts of Dent. The West Virginia legislature established a State Board of Health in 1881.  Along with the usual scope of powers (e.g., sanitary investigation, monitoring water quality, sewage) the board received statutory authority to license individuals for the practice of medicine. Licenses could be obtained by any of three methods: medical degree from a “reputable medical college,” practicing within the state for the prior ten years or passing the board’s licensing exam.  

Frank Dent made inquiries in 1881 only to learn that his seven years practice in the state didn’t satisfy the law; so he journeyed to Ohio and by 1882 gained a medical degree from the American Medical Eclectic College in Cincinnati. He then reapplied and the board turned him down citing the school as “not reputable.” Angry and spoiling for a confrontation, Dent practiced medicine openly hoping to force a legal showdown. The board obliged by notifying the attorney general and soon both parties found themselves in court. Dent lost ($50 fine) but appealed to the state supreme court. He lost again in 1884. Dent persisted by filing with the U. S. Supreme Court in 1885. The stage was set for the Supreme Court to render its first decision on the constitutionality of the medical licensing laws common in most states by then.

The Court’s decisions in the preceding years signaled a general acceptance of states’ authority and latitude in matters of public health and safety. [Thurlow, 1847; Mugler, 1887] The Court seemed also to have accepted state intervention impacting individual private property interests despite the due process guarantees of the Fifth and Fourteenth Amendments. [Slaughterhouse Cases,1873; Munn v. Illinois, 1876].

Still, the Dent decision seemed inevitable only in hindsight. The Court’s composition had shifted toward one reflecting strong pro-business, pro-capital bias favorable to private property interests of individuals as well as corporations. Dent and others argued the medical license as property and the Court remained strongly behind private property rights under the Fourteen Amendment and in keeping with “entrepreneurial liberty.”

Justice Stephen Field wrote the majority opinion. Ironically, if one had been asked to guess the direction of the decision based upon the choice of Field as its author, it would have been understandable to predict an entirely different decision. The wave of medical licensing laws in place by the late 1880s represented some of the most active regulation by the state touching upon matters both economic and legal (private property). Field had dissented in multiple cases in the preceding years in his defense of property rights. In addition, several of the Field’s fellow justices (Samuel Miller, Samuel Blatchford) had personal experience or familial connections to medicine–connections that might have left them sympathetic to Frank Dent’s arguments.

Instead, Dent is a good reminder why one should be careful reading the tea leaves to guess Supreme Court decisions. In January 1889, the Supreme Court ruled decisively against plaintiff, Frank Dent. Justice Field opened by covering the same ground featured in Aiken v. State Board of Health. He acknowledged the right to follow a “lawful calling” but then cited a higher societal right—setting reasonable conditions in the interest of protecting the citizen. Field wrote:

“The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as deception and fraud.”

However, the state did not enjoy carte blanche. Fields wrote that state authority to set qualifications for practicing a profession were not unlimited. They had to be “appropriate” and “attainable.” 

Dent echoed themes arising from Aiken a decade earlier. Where Judge Williams alluded in Aiken to the unique and privileged position enjoyed by medicine, Justice Field sounded a similar note: “Few professions require more careful preparation…than medicine.”  He cited the “subtle and mysterious influences” at work in the interactions of mind and body, disease and remedy in a passage hinting at the blend of art and science inherent to medicine. Field blended deference to physicians predicated upon their specialized knowledge with a recognition that this distinctive knowledge made regulation by fellow professionals a necessity.

“…few can judge…the qualifications of learning and skill which he [the physician] possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications.”

The implications of this articulated deference toward medical professionals proved significant. Emphasizing the esoteric nature of medical knowledge reinforced medicine as a field separate from the rest of society. From here it was a short mental leap to asserting the uninitiated (laymen) could not understand the nuances of the field. Thus, only fellow initiates (physicians) could truly understand medicine in all its complexity, including the qualifications for successful practice.

The Court embraced a kind of circular logic creating the foundation for an insular community of practitioners who would be given wide latitude in regulating themselves as professionals: The practice of medicine would be a closed community of physicians—entry into the community required a demonstration of specialized knowledge and skills—and those physicians already within the fold (physician serving on state medical boards) would be the primary determinant of entry as the profession’s specialized knowledge precluded lay decision-making.

This deference to medicine and medical professionals would go a long way toward creating a board structure that kept state medical boards the exclusive domain of physicians. Inclusion of non-physicians to this community would not come until the 1960s.

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

Sources:

James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009

James Mohr, Licensed to Practice: The Supreme Court Defines the American Medical Profession, 2013

Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age, 1997

Carl Brent Swisher, Stephen J. Field: Craftsman of the Law, 1969

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