AMA/PhRMA v. Federalist Society – Let The Witch Trials Begin!

Posted on | March 15, 2023 | 2 Comments

Mike Magee

The law is a funny thing. When British settlers first arrived on our eastern shores in 1607, their clergy-led bosses struggled to establish the rules while “clinging precariously” to life itself. Where did the rules come from in the decades that followed? Some were derived from folk law. Others were indigenous (unique to the new land and circumstances.) And others still evolved from ever-changing belief systems.

The land these settlers came from had lawyers who bridged the gap between an aristocracy that created the laws and a citizenry subjected to the laws. As for judges, they were recruited from the lawyers guild, a literal “bench” team. Cynics say that purposeful complexity and inaccessible language and syntax provided lawyers an “excuse for existing.”

As societies grew in size and complexity, the need for fresh settlers reinforced that the laws and ordinances should not be needlessly bloodthirsty, or in British parlance, “contrary or repugnant to the laws and statutes of this our realm of England.” And while most all acknowledged England as the source point for the law, the stubbornly independent colonists molded a wide range of different systems as varied as the many colonies that had been granted charters to operate.

But “stubbornly jealous of self rule”, as one expert explained, “colonial law was more a child of English law than a subordinate.” Power and privilege, and maintenance of the status-quo, was reinforced by those who made the law. In the fertile land rich colony of Maryland, for example, slaves were confirmed a “capital asset” able to be sold, gifted, and used as collateral for loans as early as 1671.

Bad laws beget worse laws. Take for example the fallout of the 1896 decision of Plessy v. Ferguson that, in establishing the policy of “separate but equal” sent our nation down a trail to apartheid. Should we have been surprised then that some years later, as Berkeley historian Leon F. Litwak recounted, one Will Mathis, a white man convicted of a capital crime, demanded that he not be forced to use the same gallows rope as had just been sullied by the neck of a black victim – so thorough and penetrating was the stain of that prior decision as to spawn a demand for segregation by execution.

Presidents throughout our history have been frequently disappointed with the decisions made by the judges they themselves appointed. That is likely not the case with Donald Trump, whose appointees (Neil Gorsuch/2017, Brett Kavanaugh/2018, and Amy Coney Barrett/2020) all carried the seal of approval of uber-conservative Federalist Society – a vast political network with chapters at 200 law schools with 10,000 student members and 65,000 lawyer members in 90 U.S. cities. Few were surprised by their role in overturning Roe v. Wade as part of the recent Supreme Court Dobbs v. Jackson Women’s Health Organization decision. Nor was it surprising when Clarence Thomas signaled on the day of the decision that this was just the beginning.

As suggested above, bad law(yers) beget worse law(yers). And that has proven to be the case in 2023. Back in the middle of Trump’s Federalist Supreme Court takeover, another lesser Justice received Senate approval. His confirmation hearing revealed that he was a Conservative Christian, anti-abortion warrior and the co-founder of the Fort Worth, Texas chapter of the Federalist Society. His name is Matthew Kacsmaryk. 

His back story includes his 17-year old sister’s traumatic teen pregnancy, birth and adoption of the child, followed by uber-conservatism ever since. The Amarillo Division of the US District of Northern Texas was chosen deliberately to argue a case sponsored by members of the Republican Governor’s Association for one reason, and one reason alone. Its only district superior court judge is Matthew Kacsmaryk. Judge shopping tactics have long to part of the Federalist Society’s playbook.

The case, which began this week asks the court to overrule the FDA which, in 2000, approved the safe and effective use of mifepristone as part of a two drug regimen to induce abortion. 53% of all US abortions were medication induced in 2022, up from 37% just five years earlier. The plaintiffs say the FDA should have never approved it and that they ignored serious side effects. The AMA and its Federation members, the Public Health community, and the FDA say that the drug, with two decades of use, has proven the regimen is safe up to 10 weeks gestation.

Pharma execs like Jeremy Levin point out that there is more at stake here than curtailing a small radical fringe element. In his words, “Here, you’re not just challenging the right for a woman to treat a pregnancy or to treat miscarriage; you’re also now challenging the primacy of the FDA to approve vast, important medicines that are critical to our society’s health, and that has a fundamental impact on the entire nation.”

Former FDA associate commissioner Marc Scheineson is a bit more blunt. He says, “This is probably round one of a 12-round heavyweight boxing match. You want the court to decide what drugs are safe and effective? Well, good luck to all of us.”

Legal historian, Lawrence Friedman, reminds us that “Life in the colonies was precarious at first…In the beginning, in tiny, starving, beleaguered settlements, there was nothing like a sophisticated notion of separation of powers. The same people made rules, enforced them, handled disputes, and ran the colony.”

The Federalist Society’s attempted coup, with its tiny Amarillo size outposts across the nation linked by the Internet and Puritan style passions, is looking to recreate a vertical network with exclusive, Jurist-directed control over rules and regulations for a resistant vast majority. That’s the kind of system that ultimately led to witches’ conflagrations in earlier times.

Wise law however is a “rational instrument” and “underlies all modern systems” We are on a slippery legal slope at the moment. We would do well to remember that “all modern societies are governed by and through laws.” 

Leaning In To Public Health Policy: Public Health as Nation Builder.

Posted on | March 8, 2023 | Comments Off on Leaning In To Public Health Policy: Public Health as Nation Builder.

Mike Magee

As Stanford Professor of Law, Lawrence M. Friedman, wrote in A History of American Law, “One hundred and sixty-nine years went by between Jamestown and the Declaration of Independence. The same length of time separates 1776 and the end of World War II.” 

During those very early years that preceded the formal declaration and formation of the United States as a nation, our various, then British colonies, fluidly and independent of each other, did their best first to survive, and then to organize into shared communities with codified laws and regulations.

For legal scholars, law (and lawyers) are often viewed as “rational instruments” and necessary evils. But for social historians, they are  “a study of social development unfolding over time” impacted by emotions, politics and real-time economics. At the core of the struggle is a clash between the rights of the individual and those of the collective community.

This clash of values has been playing out in full view over the past three years of the Covid pandemic. It is also why Public Health veteran and Washington Post columnist, Dr. Leana Wen, has come to a conclusion that “Public health needs a reset.” In her column this week she asked, “Whose rights are paramount? The individual who must give up freedoms, or those around them who want to lower infection risk?”

This battle between “individual liberty and communal good” is ancient and current at the same time, and still a source of conflict wherever and whenever humans attempt some version of “nation building.” In our current case, as Dr. Wen described, “Some viewed mask and vaccine mandates as a direct encroachment on bodily autonomy. Others preferred them because they helped people feel safer as they resumed daily routines.”

Part of the reset that Dr. Wen is suggesting for our American society involves Public Health resisting the instinct to over-simplify, and rather lean into complexity by addressing decision making at the interface of science and values. This redirects fear and wasted energy to the community’s unmet needs – common ground initiatives like preventive steps such as better viral monitoring of wastewater on the one hand, and addressing the unintended consequences of our Covid response initiatives such as massive drops in routine childhood immunizations for diseases such as measles.

It is useful to recall that we humans on these shores have come a long way. From the beginning on the shores of Virginia in 1607, these early wild settlements were essentially lawless – that is without laws. They also were wildly different in their dates of entry and their range of issues. Consider that more than 100 years separated the beginnings of the Massachusetts Bay colony and the colony of Georgia. And as historian Lawrence  Friedman noted, “The legal needs of a small settlement run by clergyman clinging precariously to the coast of an unknown continent were fundamentally different from the needs of a bustling commercial state.”

In these modern times, we still resist acknowledging our own history of enslavement and mass displacement and destruction of millions of individuals and their cultures. And yet, here we are together, doing our best to push back against the Governor DeSantis’s of the world who would halt our human progress. 

in many ways, the struggle to act in a civil and wise manner, that mines common values, and finds a balance between individual freedom and wise collective rules and regulations, remains our hill to climb. 

Public Health policy, debating it and formulating it, can help us get there. This is because it exists at the intersection of Law and Medicine. We should advantage this opportunity, and make the most of it.

 

The Most Important Builder of the House of Medicine You Never Knew.

Posted on | February 26, 2023 | Comments Off on The Most Important Builder of the House of Medicine You Never Knew.

Mike Magee

Medical History is just not fair. What other conclusion can you draw from the thousands of references and citations featuring Philadelphia physician Benjamin Rush and his wild ideas on how to heroically treat Yellow Fever in 1793, but likely never heard of Dr. John Henry Rauch. The former signed the Declaration of Independence but directly or indirectly contributed to many an unpleasant death.  The latter saved millions and helped the AMA and the AAMC find their way out of their post-Civil War professional wilderness.

Dr. Rauch’s career, its’ span and breadth, is startling. Born in Lebanon, PA in 1828, he received his Medical Degree from the University of Pennsylvania, and then opened a practice in Burlington, Iowa. He was there in 1850 for the birthing of the Iowa State Medical Society, and with their encouragement published (just five years after Iowa achieved statehood) the epic “Medical and Economic Botany of Iowa” listing 516 species, fully 23% of the known flora of the state today.

Two decades later, he was onsite in Chicago from October 8-10, 1871, when 3.3 square miles of Chicago burned to the ground taking 300 souls with it, and managed the emergency medical aftermath for the city. By then he was all too familiar with conflagration and disaster, having earned the  imprimatur of lieutenant-colonel from the Union Army as assistant medical-director of the famed Army of Virginia during the Civil War.

Knowing this, it is not too surprising that in 1866 he was focused on cemeteries, publishing the 68 page pamphlet, “Intramural Interments in Populous Cities and Their Influence Upon Health and Epidemics.” In it, he informs a surprised public on page 48 that  “…no grave can be dug at a greater depth than five feet the greater part of the year, and in point of fact, few or none are dug deeper than four feet without coming to water…” 

His appointment as the city’s first Sanitary Director followed a year later and advanced a remarkably futurist view that linked the ecology and environment of Chicago to human health. And by 1876, as incoming president of the now 4 year old American Public Health Association, he was poised to make, arguably, his major contribution – as unifier of the House of Medicine.

As Federation of State Medical Boards’ historians tell the story, “The individualism and anti-regulatory climate of the Jacksonian Era, combined with the democratization of medicine…contributed to the wholesale collapse of medical regulation in the first half of the 19th century.” Illinois had led the way in eliminating all requirements for medical licensure in 1826. Over the next decade or two fourteen other states had followed their lead. Into this void entered a relatively small group of physician activists focused on mobilizing their colleagues under the banner of a new organization, the American Medical Association in 1847. In striving for both autonomy and prestige, they created a schism by attempting to label a wide range of self-proclaimed herbalists, homeopaths and eclectic practitioners as “irregular doctors.”

The public seemed singularly unimpressed. As John S. Haller Jr., PhD, historian and author of American Medicine in Transition, 1830-1910,wrote, the public “remained indifferent to progress in pathology, new germ theories of disease, or…primitive ideas that ascribed ills to the influence of the stars, provided they were relieved of their pain and freed from the bonds of sickness.”

Into this highly politicized professional battle entered Illinois’s head of their newly established state Board of Health, one John Henry Rauch in 1977. He focused on mediating a dispute which was complicated. Competing schools of medicine were widely variable and multiplying at an alarming rate. Rauch identified 24 in his state alone that he deemed “not eligible for licensure.” Add to this that the speed of advances in medical science were unprecedented at the time, and medical schools like Johns Hopkins, Harvard and the Universities of Pennsylvania and Michigan were clamoring for consistent high standards for medical education and licensure. And finally, in the wake of the Rockefeller’s and Carnegie’s abuses in an increasingly industrialized and urbanized landscape, the need for governmental oversight and standards was now attracting popular support.

In 1878, Rauch set the standard by engineering the passage of the The Illinois Medical Practice Act of 1877 with the first ever requirement that licensure would be available only to those graduating from “approved schools” with new high standards for both pre-medical and medical education. 3,600 physicians in the state had not graduated from any medical school. Within a year of the law’s passage, 1,400 of them were gone. This, for the first time, linked the interests of medical schools and state licensure boards, with state medical societies bridging the gap.

Three years later, many of the states had once again embraced medical licensure. In 1890, two events reinforced an evolving national sentiment. First, Rauch organized and convened The National Confederation of State Medical Examining and Licensing Boards, convening its first national conference at that year’s annual AMA meeting. Its goal was clearly stated – to apply “uniform standards” for medical schools and licensing boards. Second, a new organization, the AAMC, with members from 22 medical schools convened, focused on raising standards for medical education. Initially agreeing on “a curriculum of two terms not occurring in the same year,” by 1905, they had embraced a 4 year curriculum.

With Rauch’s encouragement, by the time of the announcement of his death in the British Medical Journal, at age 65, 27 states had created  medical licensing and examination boards. The individual states continued to jealously support their prerogatives and resisted standardized reciprocity between all states. Instead they mirrored each others programs requiring a medical license “by virtue of a ‘satisfactory’ medical diploma and an examination by a state medical board.”

Within five more years, the AMA would establish its Council on Medical Examination, and the AMA and AAMC  aligned with each other on common medical education reform spanning the next century, but  beginning with the 1910 Abraham Flexner report.

But without Rauch they would have come up short. As the Federation of State Medical Boards historians correctly reminded us, “Voluntary associations such as the AMA and the AAMC, while potentially influential, lacked the authority to drive needed change. The only recourse was legislative. …As the duly constituted legal authority regulating the practice of medicine within each state or territory, the state medical boards were poised to accomplish what others could not.”

Ecology Rescued the AMA and Medical Professionalism Beginning in 1870.

Posted on | February 17, 2023 | 2 Comments

Mike Magee

The results of their 1851 survey of 12,400 men from the eight leading U.S. colleges had to be shocking. The AMA was only four years old at the time and being forced to acknowledge a significant lack of public interest in a physician’s services. This in turn had caused the best and the brightest to choose other professions. There it was in black and white. Of those surveyed, 26% planned to pursue the clergy, 26% the law, and less than 8% medicine.

It wasn’t that doctors with training (roughly 10% of those calling themselves “doctor” at the time) lacked influence. They had been influential since the birth of the nation. Four signers of the Declaration of Independence were physicians – Benjamin Rush, Josiah Bartlett, Lyman Hall, and Mathew Thorton. Twenty-six others were attendees at the Continental Congress. But making a living as a physician, that was a different story.

During the first half of the 19th century, the market for doctoring went from bad to worse. Economic conditions throughout a largely rural nation encouraged independent self-reliance and self-help. The politics of the day were economically liberal and anti-elitist, which meant that state legislatures refused to impose regulations or grant licensing power to legitimate state medical societies. Absent these controls, proprietary “irregular medical schools” spawned all manner of “doctors” explaining why 40,000 individuals competed for patients by 1850 – up from 5000 (of which only 300 had degrees) in 1790.

The ecology of 1850’s medicine couldn’t be worse. The marketplace was a perfect storm – equal parts stubborn self-reliance, absence of licensure to promote professional standards, diploma mills that showed little interest in scientific advancement, and massive unimpeded entry of low quality competitors. 

The legitimate doctors in those early days saw 5 patients on a good day. Horse travel on poor roads, and the absence of remote systems for communication, meant doctors had to be summoned in person to attend a birth or injury. And patients lost a day’s work to travel all the way to town for a visit of questionable worth. The direct and indirect costs for both doctor and patient were unsustainable. As a result, most doctors had multiple careers to augment their income.

What saved the newborn AMA and the future of medical professionalism in the mid-19th century wasn’t scientific progress or political enlightenment, but ecology – the relations of doctors and patients to one another and their surroundings.

At the turn of the century, in 1800, only 6% of Americans lived in towns with a population of 2,500. With westward expansion, Manifest Destiny, forced relocation of native Americans, and slavery supported cotton and tobacco, that percentage reached only 15% by 1950. But the arrival of railroads and telegraph, canals, improved roads and steamboats transformed America. By 1890, 37% lived in cities. And that included doctors. Beginning in 1870, there was an exodus of doctors to cities in excess of the general population. In 1870, there were 177 doctors per 100,000 in large cities. By 1910 the number had grown to 241 per 100,000.

Congregating doctors in cities was a mixed blessing for the profession. It made contact easier to execute, allowing numbers of patients seen in a day to double and triple. But it also meant that more doctors (of widely different quality) would be competing for the relatively few patients who possessed the resources to pay fees for services.

The invention of the telephone was equally transformative. The first recorded local telephone network was in New Haven, CT in 1877. Soon after the Capitol Hill Drugstore in Hartford, CT, was linked to 21 local physicians. Not to be outdone, two years later, Dr. William Worrell Mayo connected his farmhouse in Rochester, Minnesota to the Geisinger and Newton drugstore in town. This made remote prescribing, as well as patient communications for emergencies and scheduling possible.

The telephone would soon be a pivotal organizing tool for fledgling medical societies attempting to improve medical education while eliminating “irregular doctors.” In 1877, Illinois led the way in reinstating medical boards, licensing of medical schools and physicians, and acknowledging the AMA.

The AMA’s focus now was on the promotion of professionalism, especially prohibitions on advertisement, and improving medical education and public health through sanitation, pasteurization of milk, and soon enough – replacing manure producing horses with new motor cars. 

The AMA also wisely insisted that membership required physicians to first join their county and state medical branches. This created an AMA “Federation” with unprecedented geographic reach. In 1900, there were only 8,000 members. By 1910 the organization was 70,000 strong having captured 50% of all “regular” physicians.

What A Month For Big Pharma As Biden Triggers Congressional Cooperation.

Posted on | February 10, 2023 | Comments Off on What A Month For Big Pharma As Biden Triggers Congressional Cooperation.

Mike Magee

In President Biden’s State of the Union Address, the most oft repeated phrase was “Let’s Finish The Job!” This came as part of an appeal for partnership as well as an assertion that in his first two years as President much had been accomplished. Last week, with some fanfare, The President announced Lilly was finally down pricing its insulin to a flat out-of-pocket maximum of $35. We’ll see if their two insulin competitors follow suit.

The past month may be one PhRMA would like to forget. On February 9, 2023,  U.S. Senator Amy Klobuchar (D-MN) and Senator Chuck Grassley (R-IA), joint chairs of the Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights, announced that two bipartisan pieces of legislation focused on reducing the price of drugs to consumers had passed the Senate Judiciary Committee.

Both bills focus on the range of shenanigans Pharma firms have engaged in to extend their 20 year patents on blockbuster brands and delay generic versions from coming on the market.

The first bill – the Preserving Access to Affordable Generics and Biosimilars Act – is designed to prevent Big Pharma firms from flooding the FDA with sham requests for patent extensions. In the process, opponents have popularized a new term – “patent thicket” to describe the barrage of skimpy patent extension tricks companies use to extend their original 20 years of exclusivity. 

How bad can it get? Well in 2022, AbbVie Pharmaceutical successfully fought off accusations that its 132 additional patent requests were not excessive for their blockbuster blood thinner, Humira. Lucky for them, a friendly judge, U.S. Circuit Judge Frank Easterbook agreed, justifying his decision by noting that “Thomas Edison alone held 1,093 U.S. patents.” Funny thing was that the patent for Humira ran out in 2016, but they’re still in control of the money maker now 7 years later. Wow!

The second new bill likely has the longest acronym in legislative history. It’s STALLING for “Stop Significant and Time-wasting Abuse Limiting Legitimate Innovation of New Generics.” The meat of the proposed legislation would block bribery of Generic Firms on an institutional scale by Big Pharma. These various “pay-to-delay” scams pay off smaller generic firms willing to voluntarily pull or delay their legal filings of generic substitute products for drugs going off-patent.

Sen. Klobuchar has traveled this road before. She was instrumental in stacking the Inflation Reduction Act with a provision that allowed Medicare officials to negotiate prescription drug prices. In 2022 she also pressed the Department of Justice and the Federal Trade Commission to investigate Janssen, Bristol-Myers Squibb and Pfizer for collusion on pricing of blood thinner medicines after uncovering lock-step pricing increases of Xarelto and Eliquis.

In the State of the Union, President Biden expressed undying faith in American ingenuity and our willingness, when push comes to shove, to collaborate for the greater good. Turns out both are true. When it comes to greed, there is no end to the ingenious strategies that a bucket full of well paid lobbyists can come up with. 

As for collaboration, leave it to Big Pharma to be so consumed by the joys of profit to push the system to the point where politicians from both sides of the aisle are willing to join hands and scream “Enough is enough!”

American Medicine: Off On The Wrong Track From The Beginning.

Posted on | February 10, 2023 | 2 Comments

Mike Magee

When your focus is on the History of Medicine, it is natural to think that every story will center on the rise of the Medical profession, or the hospital industry, or breakthroughs in pharmaceuticals. But the reality is, as sociologist Paul Starr suggested, “The development of medical care, like other institutions, takes place within larger fields of power and social structure.”

In early colonial times, the original British colonies were rural and small-town oriented. The absence of good roads, mechanized travel, and long distance communications reinforced a pressing need for self-reliance. Seeing a doctor, if one was available and competent, meant a day of travel, and a day away from farm chores. To survive, let alone thrive, required a wide range of skills, confidence, and a willingness to confront death and disease at every turn. Large scale success was rare, and nearly always the result of  a willingness to enslave, dislocate  and subjugate fellow humans, with religion and politics providing some moral cover.

England was the model for colonial physicians back then. Physicians in Britain were a small grouping of the elite and privileged, who had been accepted into the Royal College of Physicians and clustered around London. Between 1771 and 1833, that body offered fellowship to only 168 men, all graduates of either Oxford or Cambridge. Even so, their power flowed solely from their aristocratic patients whose patronage was never assured. 

These chosen few “observed, speculated, and prescribed” and “declined to work with their hands.” That was left to the surgeons who were only a few decades separated from having been lumped together in the same guild with butchers. And last came the apothecaries, mixers of cures and potions, allowed to both retail and wholesale their concoctions. All three groups of practitioners could prescribe, but only the physicians could charge for advice.

There was no reason a British physician of the day would stoop so low as to join colonial practitioners who existed on a level with surgeons and apothecaries. Lacking status and knowledge grounding, medicine and religion often intermingled in the New World. New Jersey was the first colony to form a provincial medical society in 1766. Its first president was a physician and minister, and after a decade of existence, six of the thirty six loyal members were “pastor-physicians.”

At the beginning of the 19th century, only 200-300 individuals had legitimate training and certification as physicians. But more than ten times that number claimed to be “doctors.” 

As Paul Starr recounted, “Botanic practitioners and midwives were probably the most numerous of lay therapists, but there were also uncounted cancer doctors, bonesetters, innoculators, abortionists and sellers of nostrums. Many were itinerant and moved freely into and out of various trades.”

At the same time, therapeutic confusion in our new nation contrasted with scientific advances in Europe following the French Revolution. Clinical findings were now cross-referenced with autopsy results, allowing physicians to track for the first time signs and symptoms to specific disease entities. And doctors, with the aid of the first primitive stethoscope in 1816, were touching patients and moving from hands-off observation to hands-on examination. 

But American society was already deeply committed to individualism, self-actualization, openness to magical cures, and anti-elitist values. As Medical Historian Richard Skyrock PhD wrote, “the most hopeful period in the history of medicine was one in which the (American) public looked to medicine with the least hope.”

Understanding America’s Unhealthy Beginnings: 1826.

Posted on | February 6, 2023 | Comments Off on Understanding America’s Unhealthy Beginnings: 1826.

Mike Magee

Historians of 19th century America have well-documented that, as compromised as our population’s health was at the birth of our nation, it deteriorated markedly between 1830 and 1860. Those clearly at greatest risk were enslaved Blacks, forcibly relocated native Americans, and subjugated women. But entitled white male citizens also experienced significant declines in life expectancy.

Extreme levels of depravation multiplied in a nation loosely governed, expanding westward geometrically, and hampered by scientific ignorance and aggression. But one additional factor, largely ignored by most historians, that further complicated matters for early Americans, was that our nascent states oversight of their individual medical communities evaporated during this period. Leaders simply threw up their hands and gave up.

At the birth of our nation, there were fewer than 300 individuals in the 13 British colonies who had any formal education or certification as physicians.  The first experimental hospitals and medical schools arrived in Philadelphia shortly before the Declaration of Independence and concentrated on housing the insane and managing primitive herbal apothecaries. The concept of a professional nursing force was still 70 years away.

Those few physicians who did exist in the various colonies had begun to organize themselves at the time of the American Revolution. This contrasted with licensure and oversight in Europe which was more “state directed.” Their motives in the American colonies, according to sociologist Tracey Adams , were to use “their influence to acquire status, and win legislation granting them the power to self-regulate.” 

The medical society in Philadelphia was a tight knit club of elite European trained physicians who dreamed of bringing sophisticated medical education to the New World. In 1765, they first admitted students at the College of Philadelphia, officially launching the first medical school which would become the University of Pennsylvania in 1791. Other schools would appear, with their physician instructors collecting proprietary fees that augmented their practice incomes. 

As the former colonies transformed into a loosely linked group of independent minded states, public sentiment initially supported the professionalization of their caregivers. State legislatures united around the need to respond to public appeals to address illness and injuries on the one hand, and the health professionals desire to purge themselves of unqualified practitioners on the other. With medical schools of varying quality now appearing side by side with medical societies, it was up for grabs whether degrees or licenses or both would be required to hang out a medical shingle.

But in the first few decades of the 19th century poor performance and lack of scientific acumen, as revealed initially in the response to the Yellow Fever epidemic in 1793 in Philadelphia, caught up with American medicine before it ever officially had a chance to launch.

As one historian explained, “The long political shadow of President Andrew Jackson inculcated a reverence for the wisdom of the common man and cast a skeptical eye on experts and authorities who they deemed more likely to protect their own interests than those of the average citizen. Concurrent to this anti-intellectual trend, others began to explore alternative methods for understanding the laws of nature, founding philosophies and professions that would ultimately find their place alongside mainstream medicine.”

According to Elaine Breslau, professor of History and author of Lotions, Potions, Pills, and Magic: Health Care in Early America: “After independence the character of the physician changed. They lost their special social status. Few went to Europe to study and thus they were cut off from advances on the other side of the Atlantic. Fewer still came from the educated population. Standards of medical education in this country declined dramatically. Minimally-trained doctors opened their own medical schools as moneymaking ventures encouraged by a growing commercial and acquisitive social climate.”

It was during this period, when Jackson was campaigning against “a monopoly of government by elites,” that the common adage took hold that “doctors take the fee while nature makes the cure.” Beginning in 1826 in Illinois, states began to repeal the laws they set up to sanction the unlicensed practice of medicine. By 1855, fifteen other states had followed suit establishing the young nation as a “Wild West of Medicine.”

As historians have noted, during this period “many physicians simply pursued their vocation as best they could and were generally free to ply their trade in whatever fashion they chose.” As for the patient in mid-19th century America, as historian John Heller noted, every day Americans at the time “remained indifferent to progress in pathology, new germ theories of disease, or…primitive ideas that ascribed ills to the influence of the stars, provided they were relieved of their pain and freed from the bonds of sickness.”

It took 50 years for Illinois to reverse its course and establish a Board of Medical Examiners in its state. Other states quickly followed suit. What reversed their course? As one historian suggested,  “Licensing laws and state medical boards reappeared beginning in the 1870s with the ostensible intent of correcting what the hidden hand of the marketplace had failed to resolve.”

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