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 19th 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.
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)