FOOTNOTES OF Cohen MH , A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing. Ariz. St. L.J. 27:79 (1995).

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1. See generally Daniel Callahan, What Kind of Life: The Limits of Medical Progress 17-30 (1990); James F. Blumstein, Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 TEX. L. REV. 1345 (1981).

2. See, e.g., Mary C. Coutts, Human Gene Therapy, Kennedy Inst. Ethics J. 4:1:63-83 (1994).

3. See, e.g., Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). As Justice Scalia observed, the "right to die" has revealed the agonizing questions "presented by the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it." See id. at 292 (Scalia, J., concurring). See also Timothy E. Quill et al., Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide, 327 NEW ENG. J. MED. 1380 (1992).

4. See William D. Frazier, Rationing of Health Care: Who Determines Who Gets the Cure, When, Where, and Why?, 2 Annals Health L. 95, 95-96 (1993).

5. See Developments in the Law: Medical Technology and the Law, 103 Harv. L. Rev. 1519, 1523 (1990).

6. In this Article, "orthodox medicine," "allopathic medicine," and simply, "medicine" will refer to health care by licensed physicians using primarily scientific and technological means of healing. Whether one particular method of healing is in fact "conventional" and the other "unorthodox," "unconven tional," or "alternative" depends on point of view; indeed, how one defines "medicine", or rather, who defines "medicine", is itself the subject of this Article. Historically, orthodox physicians have protected their turf by characterizing rivals as charlatans and quacks. See Norman Gevitz, Three Perspectives on Orthodox Medicine, in OTHER HEALERS: UNORTHODOX MEDICINE IN AMERICA 1, 2 (Norman Gevitz ed., 1988); see also infra S III.

7. See infra S I. The term "holistic" is derived from the Greek holos, meaning "whole." Kenneth R. Pelletier, Holistic Medicine: From Stress To Optimum Health 13 (1979).

8. See, e.g., Bill Moyers, Healing and the Mind (1993) (describing alternative approaches to health maintenance and treatment of disease); O. CARL SIMONTON, M.D. ET AL., GETTING WELL AGAIN (1980) (discussing use of visualization and imagery to treat cancer); ERNEST L. ROSSI, THE PSYCHOBIOLOGY OF MIND-BODY HEALING: NEW CONCEPTS OF THERAPEUTIC HYPNOSIS (1986) (observing biochemical responses to Ericksonian hypnotherapy); Dean Ornish, M.D., et al., Effects of Stress Management Training and Dietary Changes in Treating Ischemic Heart Disease, 249 JAMA 54 (1983) (demonstrating significant improvement by heart disease patients in duration of exercise and functioning of left heart ventricle, and decrease in cholesterol levels and attacks of angina, as a result of stretching, relaxation, meditation and visualization); see also Franklin Hoke, Alternative Medicine Ideas Widen Horizons in Biomedical Research, 8 THE SCIENTIST 6:1 (March 21, 1994); David Perlmutter, Physician's Interest in Complementary Medicine Born From Necessity, HOLISTIC MEDICINE 9 (Winter 1995).

9. In 1990, Americans spent $13.7 billion on alternative health care treatments, three quarters out of their own pockets and not reimbursed by insurance companies. David Eisenberg et al., Unconventional Medicine in the United States: Prevalence, Costs and Patterns of Use, 328 NEW ENG. J. MED. 246 (January 28, 1993). In 1990, one in three Americans sought treatments ranging from chiropractic to herbal remedies. Id. U.S. patients made 425 million visits to alternative caregivers, as compared to 388 million visits to family doctors and internists. Id. Seventy-two percent did not tell their doctors about the alternative treatments. Id.

10. See Charles Marwick, Alternative Medicine Office Urged to Act Rapidly, 270 JAMA 1400 (1993). On June 14, 1993, President Clinton signed into law the National Institutes of Health Revitalization Act of 1993, Pub. L. No. 103-43, establishing the Office of Alternative Medicine ("OAM") as a permanent entity with the Office of the Director of the NIH. The purpose of the OAM is "to facilitate the evaluation of alternative medical treatment modalities, including acupuncture and Oriental medicine, homeopathic medicine, and physical manipulation therapies." It's the Law: There is an Office of Alternative Medicine, 1 AM., Sept. 1993, at 1 (Office of Alternative Medicine, Nat'l Insts. of Health, Bethesda, Md.). The OAM's first requests for applications listed the following grant categories: (1) diet, nutrition, and lifestyle; (2) mind/body control; (3) traditional and ethnomedicine; (4) structural manipulation and energetic therapies; (5) bioelectric applications; and (6) pharmacological and biological treatments. OAM to Make Its First Research Grants This Month, 1 AM., Sept. 1993, at 1 (Office of Alternative Medicine, Nat'l Insts. of Health, Bethesda, Md.).

11. Malignant hyperthermia involves a fatal rise in body temperature and is difficult to diagnose or predict.

12. See Barbara A. Brennan, Hands of Light 3-6 (1988); cf. Harriet Beinfield & Efrem Korngold, Between Heaven and Earth: A Guide To Chinese Medicine at xiii (1991) ("After two months of acupuncture, herbs, and dietary modification, Sam expelled scores of stones, and a sonogram confirmed that surgery was no longer necessary."); CHOA KOK SUI, PRANIC HEALING 263-71 (1990) (citing effectiveness of pranic treatments when orthodox medicine failed to produce desired results); Beverly Rubik, Energy Medicine: A Challenge for Science, 40 NOETIC SCI. REV. 37 (1993) ("[W]ithin minutes of [the healer] placing her hands on my knees I felt a sensation of tingling heat, and experienced a spontaneous decrease in pain in my knees. Being a scientist, I was intrigued . . . by the fact that this was not explainable within current scientific or medical theory.").

13. See infra S II.A.

14. U.S. Const. amend. I.

15. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714 (1981) (noting that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection"); United States v. Seeger, 380 U.S. 163, 176 (1965) (defining "religious belief" for purposes of conscientious objector statute as a "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption").

16. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F. Supp. 1522 (S.D. Fla. 1988), 723 F. Supp. 1467 (S.D. Fla. 1989), aff'd, 936 F.2d 586 (11th Cir. 1991), rev'd, 113 S.Ct. 2217 (1993).

17. See, e.g., New York Educ. Law S 6527.4a (McKinney 1992) (exempting the "practice of the religious tenets of any church"). The most recent interpretations of this provision are a half-century old. See, e.g., People v. Blighton, 75 N.Y.S.2d 194, 196-97 (1947) (holding that defendant's actions were not within exemption); People v. Wendel, 68 N.Y.S.2d 267, 270-71 (holding that tenets of a church must be practiced in good faith, and may not be used as a shield to cover practicing medicine as a business under taking); aff'd, 75 N.Y.S.2d 302 (App. Div. 1946); People v. Hickey, 283 N.Y.S. 968, 972-73 (1935) (holding that pastor who, for pay, purported to cure fallen arches by pressing patient's feet and praying was practicing medicine without a license, since such acts were not "practice of religious tenets of any church"), aff'd, 280 N.Y. 559 (N.Y. 1939).

18. The shaman is one who "enters an altered state of consciousness _at will_ to contact and utilize an ordinarily hidden reality in order to acquire knowledge, power, and to help other persons." Michael HarneR, THE WAY OF THE SHAMAN 20 (1990).

19. In shamanistic cultures, healers embody both the sacred and the mundane; in the West, we split the "rational" and the religious. See Virgil J. Vogel, American Indian Medicine 30-31 (1970).

20. Moreover, to fit the "religious healing" exemption, Sagebrush may be limited to "praying" over his client or to delivering his services "in a religious context." See Barry Nobel, Religious Healing in the Courts: The Liberties and Liabilities of Patients, Parents, and Healers, 16 U. PUGET SOUND L. REV. 599, 603, 709 (1993) (arguing that religious healers are not "practicing medicine" so long as they "confine their healing activities to prayer"). Sagebrush probably would not define himself as a "religious healer," and would not describe himself as "praying" over Quicksilver. See infra note .

21. See Thomas Kuhn, The Structure of Scientific Revolutions 10 (1970).

22. See id. at 10-12.

23. See id. at 23.

24. Id. at 37.

25. See id. at 11.

26. See id. Kuhn provides numerous examples of this process. See, e.g., id. at 111-32.

27. Id. at 12.

28. See id. at 62. For example, when Sir William Herschel discovered Uranus, he announced his observation of a star. Id. at 115. Later, when he noticed a measurement that was unusual for stars, he announced he had discovered a comet. Id. Months later, "after fruitless attempts to fit the observed motion to a cometary orbit," the community accepted the suggestion that Uranus was a planet. Id. at 115. Thus, Uranus was recognized as a planet only when, "like an anomalous playing card, it could no longer be fitted to the perceptual categories (star or comet) provided by the paradigm that had previously prevailed." Id. at 116.

29. See id. at 90.

30. Id.

31. See, e.g., John H. Randall, Jr., The Making Of The Modern Mind 499 (1976) (discussing the "immense prestige of the deductive method of the Enlightenment, modeled on mechanics," which "gave it a dominating position to the present century"). This world-view carried over into legal theory, in the analytical school represented by Jeremy Bentham and John Austin, in which "the function of the court is seen as the purely deductive application of authoritative premises found in statute or constitution." Id. at 501.

32. See Pelletier, supra note , at 23, 31.

33. See Nathan Spielberg & Bryon D. Anderson, Seven Ideas That Shook the Universe 81-82 (1985).

34. Id. at 90.

35. Id. at 91.

36. Id. at 91-92.

37. Gilbert Ryle, The Concept of Mind 11 (1948). Professor Ryle argues that Descartes "left as one of his main philosophical legacies a myth which continues to distort" disciplines based on the concept of mind. Id. at 8. Descartes wrote: [T]hought is an attribute that really does belong to me. This alone cannot be detached from me . . . . I am therefore precisely only a thing that thinks . . . . RENE DESCARTES, DISCOURSE ON METHOD AND MEDITATIONS ON FIRST PHILOSOPHY 62-63 (Donald A. Cress trans., 1980). Descartes thus "made of nature a machine and nothing but a machine; purposes and spiritual significance alike had banished." RANDALL, supra note , at 241.

38. Ryle, supra note , at 11.

39. See id. at 13.

40. See id.

41. Pelletier, supra note , at 31. Cf. Howard F. Stein, American Medicine As Culture 151 (1990) ("In treating the protocol rather than the patient (or treating the patient as refracted by the protocol), all participants to the medical encounter become standardized and dehumanized.").

42. Pelletier, supra note , at 31; see also Janet McKee, Holistic Health and the Critique of Western Medicine, 26 SOC. SCI. MED. 775, 776 (1988).

43. Pelletier, supra note , at 31. For example, cancer is known as a "malignant" tumor. L.F.C. Mees, Blessed By Illness 138-39 (1983). The patient is supposed to "fight" or "beat" the cancer. See generally Bernie S. Siegel, M.D., Love, Medicine & Miracles (1986) (describing the effects on healing of the warfare metaphor). Although there is some movement in medicine toward integrated approaches, especially in cancer treatments, see, e.g., Jody Zylke, Tumour Patients and Alternative Medicine: An Attempt At Characterizing Users of Alternative Treatment Methods in Oncology, 262 JAMA 1319 (1989); Jennifer Flach & Lisa Seachrist, Mind-Body Meld May Boost Immunity, 86 J. NAT'L CANCER INST. 256 (1994) (describing NIH symposium on psychoneuro-immunology, which examines the effect of emotions on the immune system), the "body as machine" metaphor often dominates orthodox thinking. See, e.g., LARRY DOSSEY, MEANING & MEDICINE: LESSONS FROM A DOCTOR'S TALES OF BREAKTHROUGH AND HEALING 5-7 (1991) (describing physician antipathy to mind-body healing).

44. See Cecilia M. Roberts, Doctor and Patient in the Teaching Hospital 47, 56-58, 73-74 (1977). Irving Zola provides two interesting anecdotes describing medicine's alienation from the patient's reality. In the first, Zola's surgeon orders an electromyogram, adding "[i]n a flippant tone," that the test is "easy" and "doesn't hurt." Irving K. Zola, The Social Construct of Suffering, in THE HIDDEN DIMEN SION OF ILLNESS: HUMAN SUFFERING 11, 13 (Patrick L. Starck & John P. McGovern eds., 1992). Zola asks: "How do you know? . . . Have you ever had it done to you?" "No," the surgeon replies, "but my experience tells me . . . ." Zola interrupts: his experience, having had the test twice, is that it is the most uncomfortable and disturbing test he has known. Id. The second encounter concerns an orthopedic consultation. The physician asks Zola when he experiences the pain in his right shoulder. Zola replies: "When I throw a football to my son . . . ." The physician answers: "Time to stop playing football . . . ." Zola, a polio survivor on canes and a wheel chair, comments: "He had neither asked about nor observed the importance of this activity for a man with many obvious disabilities, for whom this form of play provided an important bond with his son." Id.

45. Stephen Schwartz, Holistic Health: Seeking a Link Between Medicine and Metaphysics, 266 JAMA 3064, 3064 (1991). "Holistic" may not be the best term, since it "pushes the emotional buttons of many people, particularly conservative allopaths, in much the same way as natural does." ANDREW WEIL, HEALTH AND HEALING: UNDERSTANDING CONVENTIONAL AND ALTERNATIVE MEDICINE 181 (1983). Moreover, holistic healing defines not so much a system of treatment as "an informal collection of attitudes and practices." Id. Nonetheless, the word "holistic" emphasizes treatments that "take account of whole persons, including their mental and spiritual dimensions." Id. In this way, although at its best, "good medical practice" may be "holistic," J. Marks, Commentary: Holism, 16 J. CLIN. PHARM. & THERAP. 305, 308 (1991), holistic treatments expand on the usual "reductionist, biomedical or mechanistic approach" which is based on mind-body dualism. O.A. Abiodun, The Need for a Holistic Approach to Patient Care, 68 E. AFR. MED. J. 25, 25 (1991).

46. McKee, supra note , at 777; see also Marks, supra note , at 306.

47. See generally Beinfield & Korngold, supra note .

48. See infra S III.B.

49. McKee, supra note , at 777-78.

50. See Dolores Krieger, Living the Therapeutic Touch 107 (1987); Jack Schwarz, Human Energy Systems 1 (1980). The human energy field has been described as "subtle energy," Rubik, supra note , at 39; "energy body," Kok Sui, supra note , at xxiv; "bioplasmic body," id. at 9; "life field," Harold Saxton Burr, The Fields of Life: Our Links With the Universe (1972); and "auric field." ROSALYN L. BRUYERE, WHEELS OF LIGHT: A STUDY OF THE CHAKRAS 18 (1971). Ninety-seven different cultures describe the phenomenon. See JOHN WHITE & STANLEY KRIPPNER, FUTURE SCIENCE app. (1977). The energy field may be related to the body's magnetic field. ROBERT O. BECKER & GARY SELDEN, THE BODY ELECTRIC: ELECTROMAGNETISM AND THE FOUNDATION OF LIFE 265-66 (1985); see also Robert O. Becker, Acupuncture Points Show Increased DC Electrical Conductivity, 4 AM. J. CHIN. MED. 69 (1976) (finding that acupuncture points have a higher electrical conductivity than all other points on the body). It also may account for biophoton emission, which involves a discharge of light from organisms that ranges from ultraviolet to infrared. See Rubik, supra note , at 38. Finally, the "subtle energy" of the field may account for healing effects attributed to highly diluted homeopathic remedies. See G. James, Homeopathy: An Energy Level Therapy, 9 PROF. NURSE 54 (1993).

51. Institute of Noetic Sciences, The HearT OF HEALING 127 (1993). Premature babies receiving the treatment were found to be calmer and better oxygenated. Id. See also Janet F. Quinn & Anthony J. Strelkauskas, Psychoimmunologic Effects of Therapeutic Touch on Practitioners and Recently Bereaved Recipients: A Pilot Study, 15(4) ADV. NURS. SCI. 13, 16 (1993) (describing protocol for therapeutic touch; practitioner "moves the hands over the body of the subject from head to feet, attuning to the condition of the subject by becoming aware of changes in sensory cues in the hands").

52. See Andrews v. Ballard, 498 F. Supp. 1038, 1043-44 & n.17 (S.D. Tex. 1980) (describing chi); see also Moyers, supra note , at 292. Acupuncture, Chinese massage and Chinese herbs also are said to stimulate the flow of chi, and thus to facilitate healing. Id. at 251-314.

53. See, e.g., Krieger, supra note , at 60-61; Dana Ullman, Conceptualizing Energetic Medicine: A Beginning, 9 Am. J. Acupuncture 161, 261 (1981) (describing "assessment of the electromagnetic fields that surround the organism and the subtle energy flow that moves through it"); Hari M. Sharma et al., Maharish Ayur-Veda: Modern Insights into Ancient Medicine, 265 JAMA 2633 (1991) (describing a system of Indian medicine known as Ayur-Veda, which traces disease to imbalance in psychophysiologi cal factors known as "doshas"); Wendy S. Wetzel, Reiki Healing: A Physiologic Perspective, 7 J. HOL. NURS. 47, 48 (1989) (describing a Tibetan system of healing through use of "life energy"). Cf. N.M. STAT. ANN. S 61-4-2.A. (defining "chiropractic" as "the science of locating and removing interference with the transmissions or expressions of nerve forces in the human body"); NEV. REV. STAT. ANN. S 71-177 (defining chiropractic with reference to "nerve energy"); ALA. CODE S 34-24-120 (same); see also infra note .

54. See Krieger, supra note , at 60-63; see Kok Sui, supra note , at 16-18, 20. Touch healing views the energy field as a mold or pattern for the human body, suggesting that disease can be detected, and potentially healed, in the human energy field before it manifests in the physical body. Id. at , 17; BRENNAN, supra note , at 18-19.

55. Krieger, supra note , at 77.

56. See Shafica Karagulla, Breakthrough to Creativity 231-48 (1967).

57. See, e.g., Anthony Fejfar, A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education, 26 Gonz. L. Rev. 327, 332 (1990-91) (contrasting "synthetic relational intuitive understanding" with abstract or formal analytic understanding). Fejfar argues that an individual more open to synthetic relational intuitive understanding is able to more fully understand his or her "forestructures" of knowing and deciding. Id. at 329, 332. Cf. JOSEPH GOLDSTEIN, THE EXPERIENCE OF INSIGHT: A SIMPLE & DIRECT GUIDE TO BUDDHIST MEDITATION 135 (1987) (describing the experience of relating "without the boundaries of an image . . . [or] through the veil of concept").

58. See Todd Pressman, The Therapeutic Potential of Non-ordinary States of Consciousness, as Explored in the Work of Stanislav Grof, 32:3 J. HUMANIST. PSYCHOL. 8, 24 (1992); see also W. Cowling, Unitary Knowing in Nursing Practice, 6:4 NURSING SCI. Q. 201 (1993); WESTON H. AGOR, PH.D., INTUITIVE MANAGEMENT: INTEGRATING LEFT AND RIGHT BRAIN MANAGEMENT SKILLS (1984) (describing intuitive management); HENRI BERGSON, THE CREATIVE MIND 187-237 (Mabelle L. Andison trans., 1946) (arguing that intuitive knowledge surpasses intellectual knowledge). The contrast between intellectual and intuitive knowledge is a common theme in mythological and religious literature. See, e.g., ARYEH WINEMAN, BEYOND APPEARANCES: STORIES FROM THE KABBA-LISTIC ETHICAL WRITINGS 6 (1988) (describing the "polarity between the Hakham, the man of learning, and the Hasid, the devout person"); HEINRICH R. ZIMMER, THE KING AND THE CORPSE: TALES OF THE SOUL'S CONQUEST OF EVIL 221, 227-28 (Joseph Campbell ed., 1973) ("The unmonkish monk comes before the king as an incarnate analogy to his own counterfeit of omniscient wisdom . . . and by so doing gives proof to his own and to the general deception.").

59. See generally Kok Sui, supra note . Pranic healing consists in a variety of techniques that direct prana or chi toward the body's energy field. Id. at 3.

60. See generally Bodo Badinsky & Shalila Sharmon, Reiki: Universal Life Energy (1988); Wetzel, supra note , at 47-48.

61. Qi gong is an ancient Chinese method of healing in which the healer can project chi from a distance. Dossey, supra note , at 185.

62. Biomagnetic touch healing applies a "butterfly-light touch" to a series of points called "sets." Paul Bucky, How Does Bio-Magnetics Relate to Other Healing Techniques, IV Just Touch News 4 (June 1994).

63. Taido, a Japanese system discovered by Toshihisa Hiraki, directs energy into various organs; there are no English language publications on Taido. Telephone Interview with Robert A. Armstrong, M.D., former President of The Taido Center (May 25, 1994).

64. See generally Mary Coddington, SeekeRS OF THE HEALING ENERGY: REICH, CAYCE, THE KAHUNAS, AND OTHER MASTERS OF THE VITAL FORCE (1990). Workshops on touch healing techniques are popular in many cities. For example, a recent article in a Buffalo paper advertised a seminar on Chinese herbal remedies, reflexology, and the Iroquois approach to healing. Paula Voell, The Healing Power of Human Touch, THE BUFFALO NEWS, Nov. 9, 1993. Reflexology is a Chinese system of massage through points in the feet using "energy circuits of a nature as yet unanalyzed by medical science." CODDINGTON, supra, at 152-53.

65. See Maria Giordano, Healer's Tools are Handy: Classes Will Teach Healing Touch, The New Orleans Times-Picayune, Oct. 17, 1993, at 1F1 (describing one practitioner's experience with healing touch, with Reiki, and with a Japanese healing system called Jin Shin Jyutsu).

66. See Carol Gottseman, Energy Balancing Through Touch for Health, 10:4 J. Holistic Nursing 306, 306 (1992) (describing TFH as an "energetic, touch, body therapy" that creates "increased awareness of the subtle messages that our bodies are communicating to us").

67. Oscar Janiger, M.D. & Philip Goldberg, A Different Kind of Healing: Doctors Speak Candidly About Their Successes With Alternative Medicine 123, 128-32 (1993).

68. Leonard Laskow, Healing With Love (1992).

69. Dossey, supra note , at 189-93. Dossey defines "Era III medicine" as "[a]ny therapy in which effects of consciousness bridge between different persons." Id. at 191. He includes "distance healing, intercessory prayer, `psychic' and shamanic healing, `miracles,' diagnosis at a distance, and noncontact therapeutic touch." Id.; see also Francis C. Biley, Energy Fields Nursing: A Brief Encounter of a Unitary Kind, 30:6 INT'L J. NURSING STUD. 519 (1993) (describing use of "energy fields nursing" in care of patient with bilateral mastectomy).

70. See Michael Talbot, The Holographic Universe 173 (1992).

71. Krieger, supra note , at 164. Prayer or faith is not a necessary part of therapeutic touch or touch healing. See THE HEART OF HEALING, supra note , at 126 ("Therapeutic touch assumes that these energy fields interact and that healthy people can transfer energy to sick people, promoting wellness. In this way, therapeutic touch differs from faith healing or psychic healing, since both of those treatments depend in part on the faith of the person being healed.").

72. See The Heart of Healing, supra note , at 127 (noting that "[o]ne of the lessons of research into therapeutic touch is that we are all potential healers. Healing is not reserved for `sensitives' and `psychics.'") Krieger relies on the archetype of the "wounded healer," one who has developed the wisdom to heal others based on the recognition, and healing, of her own inner wound. KRIEGER, supra note , at 17-18.

73. Daniel J. Benor, Healers and a Changing Medical Paradigm, 3:2 Center for Frontier Sci. 38 (1993). In the United Kingdom, over 8,000 registered healers are permitted by law to give healings in hospitals at the request of patients. Some are paid under the U.K. National Health Service. Id.

74. Krieger, supra note , at 164; cf. Tiffany Field, Volunteer Grandparents May Benefit More From Massaging Others Than From Receiving Massage Themselves, 1:1 Am., Sept. 1993, at 3 (reporting that massage by volunteer "grandparents" reduced cortisol levels, improved sleep organization, and resulted in better temperaments in premature babies and infants exposed to HIV and cocaine (in utero) and to sexual and physical abuse).

75. Nelda Samarel, The Experience of Receiving Therapeutic Touch, 17:6 J. ADVANCED NURSING 651, 654 (1992).

76. Krieger, supra note , at 164-66.

77. Krieger reports: "As the husband began to explore his wife's energy field while doing Therapeutic Touch, he became increasingly aware of subtle differences in his wife's fields . . . . [P]erceptions of the growing fetus' response to his touch deeply moved his emotions more directly than did the mere feeling of his child's kick against the inner wall of his wife's abdomen." Id. at 109-10; see also Janet F. Quinn, Building A Body of Knowledge: Research on Therapeutic Touch 1974-1986, 6 J. HOLISTIC NURSING 37 (1988) (summarizing twelve years of clinical research on efficacy of therapeutic touch); Quinn & Strelkauskas, supra note , at 23 (finding significant change in lymphocyte subset composition in both practitioners and recipients after therapeutic touch, and proposing that therapeutic touch enhances immunologic functioning); Wetzel, supra note , at 51-52 (finding a significant change in hemoglobin and hematocrit levels after Reiki healing).

78. Karagulla, supra note , at 123-46. Dr. Karagulla has written a book in collaboration with a healer, in which she correlates medical findings with the healer's assessment of the patient's energy field. See generally Shafica Karagulla, M.D. & Dora Kunz, The Chakras and the Human Energy Fields (1990). The authors suggest, among other things, that the acceptance of transplanted organs depends, to some degree, on the relative mesh between the energy fields of donor and recipient. Id. at 152. The extent of the fit can be observed through high sense perception. Id. at 153.

79. John C. Pierrakos, Core Energetics: Developing the Capacity to Love and Heal (1987).

80. See, e.g., Wendy S. Wetzel, Healing Touch as a Nursing Intervention: Wound Infection Following Cesarean BirthAn Anectodal Case Study, 11(3) J. Holistic Nursing 277 (1993).

81. The OAM has already collected studies on chiropractic, acupuncture, and herbal medicine; bibliographies are available from the NIH library (compiled by Mary Savanger).

82. Valerie V. Hunt, Project Report: A Study of Structural Integration from Neuromuscular, Energy Field, and Emotional Approaches (1977), cited in Bruyere, supra note , at 247-58.

83. Id. A subsequent study, conducted at the Menninger Clinic, found that a magnetic field of 14 gauss, "considered by biologists and physicians to have no important significance for humans," in fact significantly disturbed human subjects. Elmer Green et al., Gender Differences in a Magnetic Field, 3 SUBTLE ENERGIES 65, 99 (1991). The study was published by the International Society for the Study of Subtle Energies and Medicine, an organization founded in 1989 to explore "informational systems and energies that interact with the human psyche and physiology, either enhancing or perturbing health homoestasis." 4 SUBTLE ENERGIES (inside cover) (1993). Of the organization's 1,500 members, 17% are physicians and 29% have doctorates. Id.

84. Stephen Schwartz et al., Infrared Spectra Alteration in Water Proximate to the Palms of Therapeutic Practitioners, 1 Subtle Energies 43 (1990). Clients with diagnosed illness including lung cancer and AIDS were used to motivate healers. Id. at 48, 51 ("[a]n actual therapeutic session with its possibility of effective aid to a fellow human being, presumably, held greater motivation than acting solely on bottled water."). Unanticipated results of the experiment included "the anomalous disappearance of a kidney stone." Id. at 70.

85. Id. at 45, 71.

86. Id. at 44 (citing studies). Another Menninger Clinic study observed high-amplitude voltage surges when non-contact therapeutic touch healers meditated in a room made of copper walls. Elmer Green et al., Anomalous Electrostatic Phenomena In Exceptional Subjects, 2 Subtle Energies 69 (1992). The surges were considered anomalous "because neither we nor our consultants (biomedical engineers, physicists, and physicians) can point to any known psychophysiologic mechanism by means of which high-amplitude voltage surges lasting a few seconds can be generated in the human body." Id. at 79. Electrical records during sessions with patients included a large number of voltage phenomena. Id. at 80.

87. Krieger, supra note , at 14, table 1.

88. Id. at 13-15. The largest change in hemoglobin value was from 12.5 grams per 100 milliliters of blood before treatment (or "gml") to 14.1 gml after treatment. Id. at 14, table 1.

89. Id.

90. See Daniel P. Wirth, The Effect of Non-Contact Therapeutic Touch on the Healing Rate of Full Thickness Dermal Wounds, 1 SUBTLE ENERGIES 2 (1990) (citing A. WORRALL & O. WORRALL, THE HEALING TOUCH (1970); B.A. RUBIK, A SYSTEM'S APPROACH TO BACTERIAL CHEMOTAXIS (1979); J. L. Sprudish & D.E. Coshland, Jr., Quantitative Assay for Bacterial Chemotaxis, 72 PROC. NAT'L ACAD. SCI. 710-13 (1975); B.A. RUBIK & D.E. COSHLAND, JR., 36 FED. PROC. AM. SOC. EXPERIM. BIOL. 796 (1977)).

91. Wirth, supra note , at 1-12.

92. Id.

93. Id. at 17.

94. Id.

95. Id. at 10.

96. Id. at 13.

97. Id.

98. Id.

99. Id. at 12-13.

100. Id. at 14; see also id. at 18.

101. Elizabeth A. Rauscher, Human Volitional Effects on a Model Bacterial System, 1 Subtle Energies 21 (1990); see also Beverly Rubik, Volitional Effects on a Bacterial System, in The Interrela tionship Between Mind and Matter: Proceedings of a Conference Hosted by the Center for Frontier Sciences 169 (Beverly Rubik ed., 1989). The Center is at Temple University in Philadelphia.

102. Rauscher, supra note , at 22.

103. Id. at 40.

104. See Benor, supra note , at 38-39. Many of these studies have involved doctoral and masters' dissertations, including some granted by John F. Kennedy University, New York University, the University of Maryland, and the University of Texas; none demonstrated any deleterious side effect of healing. Id.

105. Indeed, skeptics often criticize the evidence as inadequate on this ground. See, e.g., Bernard N. Nathanson, Somebody Say Amen, FIRST THINGS 57, 58 (May 1994) (reviewing LARRY DOSSEY, HEALING WORDS: THE POWER OF PRAYER AND THE PRACTICE OF MEDICINE (1994) (acknowledging Larry Dossey's medical credentials, but noting the absence of "chi-square tests, the student-t tests, the meta-analyses, the logistic-regression analyses," and lack of published data in "demanding peer review" journals)). Id. at 57, 58. Proponents respond that they are forced to "look outside the normal channels" for funding and publication and that physicians who engage in alternative therapies are threatened with loss of license, of hospital privilege, and of professional standing. Robert W. Bradford & Michael L. Culbert, The Laetrile Phenomenon: Harbinger of Medical Revolution, JURIMETRICS J. 179, 184 (Winter 1980); see also In re Guess, 393 S.E.2d 833 (N.C. 1990) (affirming the Board of Medical Examiners' decision to conditionally revoke physician's medical license as a result of administering homeopathic remedies).

106. See Moyers, supra note , at 262, 269, 277 (remarks of Dr. David Eisenberg, Harvard Medical School). For example, when Chinese doctors prescribe herbs, they are basing their prescriptions not on any active ingredients, but rather on the effect of these herbs on the patient's chi. Id. at 258. As Dr. Eisenberg notes, "we don't even know all the ingredients in each herb or how they interact when you boil twelve of them together in water." Id. at 260. Similarly, when to stimulate the flow of chi, Chinese acupuncturists put needles in meridians, their "diagnostic and therapeutic roadmap" is completely different than that of Western medicine because the meridian system "does not correspond to any anatomic map we have in the West." Id. at 264. Even if diagnostic and therapeutic roadmaps could be compared, outcomes might be dissimilar. Because, from a holistic perspective, healing includes growth or transformation, the "symptomatic relief or return to normalcy" provided by allopathic medicine "does not constitute successful treatment." McKee, supra note , at 780. Thus, evaluating holistic healing methods according to the criteria of Western medicine is "highly problematic," as holistic treatment may result in temporary aggravation of the symptom. Id.

107. See infra S III. This may be remedied as the OAM and other institutional bodies intensify their efforts to explore and integrate alternative approaches to healing. For example, the National Institute of Allergy and Infectious Diseases' Division of AIDS has only recently begun to create a database of alternative, complementary, and holistic AIDS therapies. See Database of Alternative, Complementary AIDS Therapies Should Be Considered by NIAID, 34(22) F-D-C REP. 3 (1991); see also OAM-Funded Exploratory Centers to Support Retrospective Studies and Pilot Projects, 37(23) F-D-C REP. 4 (1994) (describing new efforts to collect databases on alternative therapies).

109. As Candace Pert, Ph.D., notes: "Those pesky emotions. They have a nonphysical as well as a physical reality, so they're hard to study in a laboratory." MOYERS, supra note , at 187. Pert has explored the hypothesis that neuropeptides, or certain messenger molecules, are "the biochemical correlates of emotions." Id. at 178. Even so, neuropeptides alone may not account for certain phenomena. Id. at 182 ("[c]learly there's another form of energy that we have not yet understood . . . . Remember, I'm a scientist."). For example, in hypnotherapy, patients re-experience strong emotional states which trigger physiological changes; although the behavior can be measured, the exact biochemical mechanism is difficult to trace. Id. at 187.

109. Innovators in health care often have engendered the enmity of the profession. Ambrose Par_, the "father of modern surgery," was denounced for using the ligature, which contemporaries characterized as hanging one's life on a string, "when red-hot irons were always available," and "for blinding himself to the virtue of boiling oil as a surgical dressing." Donald T. Atkinson, MAGIC, MYTH AND MEDICINE 142-49 (1956). Similarly, Andreas Vesalius, who published De Fabria Humani Corporis (1537), correcting contemporary dogma about anatomy, was denounced as a heretic and a fraud, and had to flee from Padua. Id. at 154. Likewise, a contemporary text on anatomy by Michael Servetus "was construed as an attack upon established order . . . [and] awakened a series of denunciations . . . so virulent that he was forced to flee from Paris." Id. Servetus was apprehended and burned at the stake, together with his book. Id. at 154-55. Upon the publication of The Structure of Scientific Revolutions, Kuhn himself was denounced; his ideas were criticized as absurd, contradictory, wrong, and even immoral. See RICHARD J. BERNSTEIN, BEYOND OBJECTIVITISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS 51 (1988) (citing examples). Kuhn's work has since become a classic.

110. One surgeon holds "joint surgery" with a healer. Craig K. Brown, Letter, J. Royal C. of Gen. Prac. 476 (Nov. 1989). The surgeon makes his normal diagnosis of the patient's problem. The healer then gives "intuitive" or energetic impressions in terms of "energy blocks, aura fields," and the underlying emotional or spiritual problem (for example, "loneliness, fear of ill health, lack of purpose in life") that has created the block. Id. at 477. One model of health care views the person "as a unified, four-dimensional energy field in constant interaction with the environment." Wetzel, supra note , at 47 (citing M.E. ROGERS, Nursing: A Science of Unitary Man, in CONCEPTUAL MODELS FOR NURSING PRACTICE (J.P. Riehl & C. Roy, eds., 1980)).

111. Dr. Brown envisions "psychospiritualsomatic diagnoses," adding, "perhaps it is easier to say holistic." Id. at 477. See also Robert M. Veatch, 2 The Patient as Partner 7 (1991) (describing a "postmodern" model of the physician-partner relationship); Lisa Alexander, Patient Education: The Role of the Physician Assistant and Other Allied Health Professionals, 102 Pub. Health Rep. 145 (Supp. 1987) (describing use of healing team in a holistic approach to medicine).

112. See Spielberg & Anderson, supra note , at 5, 17-54. Copernicus asserted that the sun, and not the earth, was at the center of the solar system. Id. at 23-31. The authors provocatively ask, "In light of what you understand about the history of scientific revolutions, what should be your attitude toward claims by proponents of extra-sensory perception . . . [and] precognition?" Id. at 51. See also Edwin A. Abbott, FLATLAND: A ROMANCE OF MANY DIMENSIONS (1952) (an allegory about 3-dimensional beings visiting a 2-dimensional world).

113. Pelletier, supra note , at 23, 32; see also Kenneth H. Kaplan et. al., The Impact of A Meditation-Based Stress Reduction Program on Fibromyalgia, 15 Gen. Hosp. Psych. 284 (1993); Ratree Sudsuang et. al., Effect of Buddhist Meditation on Serum Cortisol and Total Protein Levels, Blood Pressure, Pulse Rate, Lung Volume, and Reaction Time, 50 Phys. & Behav. 543 (1991).

114. The states' "police power," while not codified in the United States Constitution, describes "the residual prerogatives of sovereignty which the states [have] not surrendered to the federal government," LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 405 (2d ed. 1988) and was first articulated by Chief Justice Marshall in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

115. See Peckmann v. Thompson, 745 F. Supp. 1388, 1391 (C.D. Ill. 1990), remanded on other grounds, 966 F.2d 295 (7th Cir. 1992). The court in Peckmann held that the Illinois legislature may, under its police power, decide whether to require a license to practice midwifery and "may decide what qualifications a person must have to receive a license," as well as what "treatments or procedures a midwife may perform." Id.

116. Id.

117. People v. Amber, 349 N.Y.S.2d 604, 612 (Sup. Ct. 1973) (prohibiting acupuncture as constituting the unlicensed "practice of medicine").

118. People v. Steinberg, 73 N.Y.S.2d 475, 477 (Mag. Ct. 1947).

119. See Appendix I, Table 1.

120. See Appendix I, Table 2.

121. New York Educ. L. S 6521 (McKinney 1985).

122. Mich. Comp. Laws Ann. S 333.17001(d) (West 1992).

123. See id.

124. Ark. Code Ann. S 17-93-202(2) (B) (Michie 1992).

125. See Appendix I, Table 2.

126. See Ill. Ann. Stat. ch. 225, para. 60/49 (Smith-Hurd 1993); Iowa Code Ann. S 148.1 (West 1989); Kan. Stat. Ann. S 65-2869 (1992); Neb. Rev. Stat. S 71-1,102 (1990); N.C. Gen. Stat. S 90-18 (1993); R.I. Gen. Laws S 5-37-1(i) (1987); S.C. Code Ann. S 40-47-40 (Law. Co-op. 1991); TENN. CODE ANN. S 63-6-204 (1955 & Supp. 1994).

127. See Iowa Code Ann. S 148.1 (West 1989); Kan. Stat. Ann. S 65-2869 (1992); Neb. Rev. Stat. S 71-1,102 (1990); S.D. Codified Laws Ann. S 36-4-9 (1992); Tex. Rev. Civ. Stat. Ann. art. 4510a (West 1976).

128. Haw. Rev. Stat. S 453-2 (1992).

129. Minn. Stat. Ann. S 147.081 (West 1989).

130. N.M. Stat. Ann. S 61-6-6 (Michie 1993).

131. Or. Rev. Stat. S 677.085 (1989).

132. Vt. Stat. Ann. tit. 26, S 1311 (1989).

133. Wyo. Stat. S 33-26-102(a)(x)(A) (1977 & Supp. 1994).

134. Reams v. State, 279 So. 2d 839, 842 (Fla. 1973) (providing that defendant was deemed to be practicing medicine if he held himself out as being able to diagnose disease or physical conditions).

135. People v. Mastromarino, 265 N.Y.S. 864, 864-65 (N.Y. Sup. Ct. 1933) (holding that one who held himself out as being able and offered to diagnose, treat, operate or prescribe for any human disease, practiced medicine within meaning of Section 6521).

136. State v. Nelson, 317 S.E.2d 711, 714 (N.C. Ct. App. 1984) (finding intent of statute to protect public against those who would hold themselves out as medical doctors).

137. Louisiana State Bd. of Medical Examiners v. Craft, 93 So. 2d 298, 300-01 (La. Ct. App. 1957).

138. See Appendix I, Table 2.

319. See State v. Ghadiali, 175 A. 315, 318 (Del. Gen. Sess. 1933) (holding defendant guilty of practicing medicine where he recommended the use of an appliance to cure an ailment with the intention of receiving, either directly or indirectly, money or some other form of compensation); Nelson, 317 S.E.2d at 714 (declaring the intent of the statute to protect the public against those who would hold themselves out as medical doctors who would expect compensation in return for those services); State v. Greiner, 114 P. 897, 899 (Wash. 1911) (sustaining conviction where defendant diagnosed ailments using vibrator, used manual manipulations, prescribed dietary advice and collected fee); 10 Op. Att'y Gen. 1003 (Wis. 1921) (finding that one who advised, prescribed methods of treatment, diet and exercise and charged substantial sums was practicing medicine and should have procured a certificate to do so).

140. Haw. Rev. Stat. S 453-2 (1985 & Supp. 1992) ("either gratuitously or for pay"); La. Rev. Stat. Ann. S 37:1262 (West 1988) (same); Utah Code Ann. S 58-12-28 (1990).

141. See Appendix I, Table 2.

142. Del. Code Ann., tit. 24, S 1703 (1987).

143. State v. Buswell, 58 N.W. 728 (Neb. 1894).

144. Ohio Rev. Code Ann. S 4731.34 (Baldwin 1991); OKLA. STAT. ANN. tit. 59, S 492 (West 1989); VT. STAT. ANN. tit. 26, S 1311 (1989 & Supp. 1994).

145. Me. Rev. Stat. Ann. tit. 32, S 3270 (West 1988 & Supp. 1994); Ohio Rev. Code Ann. S 4731.34 (Baldwin 1991).

146. State v. Baylor, 439 N.E.2d 461, 462-63 (Ohio Ct. App. 1981).

147. See Appendix I, Table 2.

148. Ind. Code Ann. S 25-22.5-1-1.1(a)(2) (Michie 1991 & Supp. 1994).

149. State v. Brady, 492 N.E.2d 34, 37 (Ind. Ct. App. 1986).

150. Black v. State, 216 S.W. 181 (Tex. Crim. App. 1919).

151. UTAH CODE ANN. S 58-12-28(4)(a) (1994).

152. See Appendix I, Table 2.

153. Cal. Bus. & Prof. Code S 2051-2052 (1990); Ind. Code Ann. S 25-22.5-1-1.1(a)(1)(c) (Michie 1991 & Supp. 1994) ("the penetration of the skin or body orifice by any means, for the intended palliation, relief, or cure"); Wash. Rev. Code Ann. S 18.71.011 (Michie 1993 & Supp. 1994); Wis. Stat. Ann. S 448.01(9)(c) (West 1988) ("[t]o penetrate, pierce or sever the tissues of a human being").

154. Commonwealth v. Dragon, 132 N.E. 356, 357 (Mass. 1921).

155. See Appendix I, Table 2.

156. See Ind. Code Ann. S 25-22.5-1-1.1 (Michie 1991 & Supp. 1994); N.C. Gen. Stat. S 90-18 (1993); Utah Code Ann. S 58-12-28 (1994).

157. Ind. Code Ann. S 25-22.5-1-1.1 (Michie 1991 & Supp. 1994). Utah defines "drugs or medicine" using similar terminology in Utah Code Ann. S 58-12-28 (1994). Oklahoma also uses a similar definition to define "drugs" in Okla. Stat. Ann. tit. 59, S 353.1 (West 1989), but specifically excludes food from the definition.

158. State v. Baker, 48 S.E.2d 61, 66 (N.C. 1948) (holding that patent or proprietary remedies that may be purchased without a prescription constitute drugs).

159. N.M. Stat. Ann. S 61-6-6 (Michie 1993).

160. Md. Code Ann., Health Occ. S 14-101(k)(2)(ii) (1991).

161. Del. Code Ann., tit. 24, S 1703(b)(2) (1987).

162. Gross v. Amback, 522 N.E.2d 1043, 1044 (N.Y. 1988) ("practice of medicine" includes perform ing an autopsy).

163. Ark. Code Ann. S 17-93-202(2)(A) (Michie 1992) ("whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical, or other means whatsoever").

164. Me. Rev. Stat. Ann. tit. 32, S 3270 (West 1988 & Supp. 1992) ("manipulation").

165. S.C. Code Ann. S 40-47-40(c) (Law. Co-op. 1993) ("manipulation, adjustment or method . . . by any therapeutic agent whatsoever").

166. Haw. Rev. Stat. S 453-1 (1992).

167. The California and New York licensing schemes are set forth as examples in Appendices II and III, respectively.

168. Cal. Bus. & Prof. Code S 2507(b) (West 1993). For a brief history of midwifery, see Donna Peizer, A Social and Legal Analysis of the Independent Practice of Midwifery: Vicarious Liability of the Collaborating Physician and Judicial Means of Addressing Denial of Hospital Privileges, 2 BERKELEY WOMEN'S L.J. 139, 146-50 (1986).

169. Cal. Bus. & Prof. Code S 2507(a) (West 1993).

170. Id. at S 2507(b) (West 1993). In People v. Jihan, 519 N.E.2d 22 (Ill. App. Ct. 1988), aff'd, 537 N.E.2d 751 (Ill. 1989), a couple's exclusive reliance on defendant's efforts at childbirth resulted in the baby's death. Defendant was indicted for involuntary manslaughter and practicing midwifery without a license. Id. at 23. The circuit court dismissed the manslaughter charge but convicted defendant on the charge of unlicensed practices. The appellate court reversed. The court first invalidated a release signed by the couple, which acknowledged that defendant had no midwifery license "but is only agreeing to attend our birth because she feels she could be of help to us." Id. at 24. However, the court held that the Illinois Medical Practice Act, which prohibited the practice of "midwifery" without a license, was unconstitu tionally vague as applied to defendant, because it was ambiguous as to whether the term "midwifery" meant assisting at childbirth, or actually delivering the child at birth. Id. at 26.

171. Cal. Bus. & Prof. Code S 2507(e) (West 1993).

172. Ca. Bus. & Prof. Code S 2505 (Supp. 1995) (historical and statutory notes citing Stats. 1993, ch. 1280, S 1).

173. Cf. Mont. Code Ann. S 37-26-102(1) ("The legislature finds that a significant number of Montanans choose naturopathic medicine for their health care needs and declares that naturopathic medicine is a distinct health care profession that affects the public health, safety, and welfare and contributes to public freedom of choice in health care.").

174. See supra note . In Dent v. West Virginia, the United States Supreme Court upheld a West Virginia statute that required physicians to obtain a license from the state health board. 129 U.S. 114, 114 (1889). Appellant was denied a license because the board determined that the American Medical Eclectic College of Cincinnati was not "reputable" under the statute. Id. at 118. Appellant continued practicing medicine and was convicted. Id. Rejecting appellant's claim that he was denied due process, the Court held that the state's power to provide for the general welfare of its people authorizes it to license a profession such as medicine, which "has to deal with all [the] subtle and mysterious influences upon which health and life depend." Id. at 122.

175. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

176. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992).

177. In re Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied, 429 U.S. 922 (1976); Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1987).

178. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

179. See, e.g., Wright v. DeWitt Sch. Dist., 385 S.W.2d 644 (Ark. 1965); McCartney v. Austin, 293 N.Y.S.2d 188 (1968), aff'd, 298 N.Y.S.2d 26 (1969).

180. See, e.g., In re McCauley, 565 N.E.2d 411 (Mass. 1991); In re Cabrera, 552 A.2d 114 (Pa. Super. Ct. 1989). Many state statutes exempt religious or faith healing from child neglect statutes. However, some of these statutes may themselves violate the Establishment Clause of the First Amend ment. See Henry J. Abraham, Abraham, Isaac, and the State: Faith-Healing and Legal Intervention, 27 U. RICH. L. REV. 951, 975 (1993).

181. 497 U.S. 261 (1990).

182. Id. at 266.

183. Id. at 265.

184. Id.

185. Id.

186. Id. at 277-78. Although many state courts analyzed the right to refuse treatment as a constitutional right to privacy, the court found the issue "more properly analyzed" as a Fourteenth Amendment liberty interest. Id. at 279 n.7.

187. Id. at 280.

188. Id. at 281-82.

189. See id. at 285.

190. Wyatt v. Stickney, 325 F. Supp. 781, 784 (M.D. Ala. 1971); see also Rouse v. Cameron, 373 F.2d 451, 458-59 (D.C. Cir. 1966) (holding that an individual arrested for carrying a dangerous weapon, found not guilty by reason of insanity, committed to a mental hospital, and held there for longer than he would have been imprisoned, had a statutory right to treatment and could not be held indefinitely if he was not receiving treatment).

191. Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated on other grounds, 422 U.S. 563 (1975).

192. 438 F. Supp. 1287, 1293 (W.D. Okla. 1977), rev'd, 442 U.S. 544 (1979), cert. denied, 449 U.S. 937 (1980). The Act is codified at 21 U.S.C. S 321(p)(1) (1988).

193. 438 F. Supp. at 1298-1300.

194. Rutherford, 582 F.2d 1234, 1237 (10th Cir. 1978), rev'd, 442 U.S. 544 (1979), cert. denied, 449 U.S. 937 (1980).

195. Id.

196. Id.

197. Rutherford, 442 U.S. 544, 551 (1979).

198. Id. at 552 (citing 79 Cong. Rec. 5023 (1935), 83 Cong. Rec. 7786-87, 7789 (1938)).

199. Id. at 553-54.

200. Id. at 554.

201. Id. at 555 (quoting Rutherford, 582 F.2d at 1236).

202. Id.

203. Id.

204. 616 F.2d 455, 457 (10th Cir. 1980).

205. Id.

206. Id.

207. A full discussion of the relationship between the FDA and unconventional treatments, particularly with respect to cancer, is beyond the scope of this Article. See generally Michael S. Evers, Unconventional Cancer Treatments: Legal Constraints on the Availability of Unorthodox Cancer Treatments (report commissioned by U.S. Congress Office of Technology Assessment, June 1988).

208. 498 F. Supp. 1038, 1039 (S.D. Tex. 1980).

209. Id. at 1042-43.

210. Id. at 1057.

211. Id. at 1045 (quoting Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 426 (1977)).

212. Id. at 1046 (citing Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977)).

213. Id. at 1047 (quoting Roe v. Wade, 410 U.S. 113, 152-53 (1973)).

214. Id.

215. Id.

216. Id.

217. Id. The court also emphasized the safety and efficacy of acupuncture, as demonstrated by the evidence at trial, especially as compared to Western techniques such as drugs or surgery. Id. at 1044-47.

218. Id. at 1049 n. 34. The court approved the outcome in Rutherford, "not because the plaintiffs had no right to decide to obtain laetrile, but because the ban was `narrowly drawn' to [protect] the `compelling state interest.'" Id. (quoting Roe, 410 U.S. at 155).

219. Id. at 1050-51.

220. Id.

221. Id. (quoting Lindsey v. Normet, 405 U.S. 56, 74 (1972) and Roe, 410 U.S. at 727-28).

222. One plaintiff testified that he could not "find a single licensed physician in Texas who was skilled in acupuncture." Id. Other witnesses corroborated this testimony. Id.

223. Id. at 1052.

224. Id. at 1056.

225. Id. at 1053 (quoting Tex. St. Bd. of Med. Exam. Rule 386.01.12-001(c)).

226. Id.

227. Id.

228. Id. at 1053-56.

229. Id. at 1053-55.

230. Id. at 1053-56.

231. Id. at 1056 (quoting Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955)).

232. Id. at 1056. The court observed that, in striking the challenged rules, it was leaving acupuncture virtually unregulated, but commented that, in entering a declaratory judgment holding state abortion statutes unconstitutional in Roe v. Wade, the United States Supreme Court had taken similar action. Id. at 1057. The court added that the "unregulated practice of acupuncture is no more dangerous than the unregulated performance of abortions . . . ." Id.

233. For a critique of Andrews, see Fran L. Whyman, Laissez Faire in the Medical Marketplace: Recognition of a Constitutional Right to Unconventional Medical Treatment: Andrews v. Ballaro, 18 NEW ENG. L. REV. 148 (1982-83); see also United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1313-14, rehearing en banc denied, 829 F.2d 1124 (5th Cir. 1987), cert. denied sub nom, Wolin v. United States, 484 U.S. 1065 (1988) (rejecting patients' claims of a constitutional right to obtain drugs prohibited by the Food and Drug Administration).

234. 854 F.2d 1379, 1379 (D.C. Cir. 1988).

235. Id. at 1389.

236. Id. at 1390. The court noted that some decisions might have dramatic and immediate consequences, while others might be motivated largely by personal taste, convenience, or finances. Id.

237. Id. at 1391.

238. Id. A plaintiff might have difficulty proving "medical necessity," given the medical profession's antipathy to the chosen technique (for example, acupuncture). In addition, the court's requirement of "statistically sound . . . studies," id., might be difficult to meet where the technique (such as acupuncture) relies on assumptions outside the present, generally accepted boundaries of Western medicine (such as the existence of meridians or energy fields).

239. Id. at 1395.

240. Id.

241. Id.

242. Id. at 1395-96. Some states have legislated a response to terminal patients' need for alternatives. See, e.g., Haw. Rev. Stat. Ann. S 453-1 (providing that when a disease is "hopeless and beyond recovery"as documented by the physicianthen any person may give a "remedial agent or measure" when requested to do so "by or on behalf" of the patient).

243. 105 N.E. 92, 93 (N.Y. 1914).

244. Cruzan v. Director, Missouri Department of Public Health, 497 U.S. 261, 269 (1990).

245. See Canterbury v. Spence, 464 F.2d 772, 786-87 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972).

246. See Cruzan, 497 U.S. at 269.

247. See Jay Katz, The Silent World of Doctor and Patient xx (1984).

248. See id. at 80 (noting that the doctrine has "undergone little analytic development since Canterbury," and in fact, has not been expanded, but contained).

249. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts, S 32, at 191 (5th ed. 1984).

250. See, e.g., Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1970); Siegel v. Mount Sinai Hosp., 403 N.E.2d 202, 209 (Ohio Ct. App. 1978); Gemme v. Goldberg, 626 A.2d 318, 326 (Conn. App. Ct. 1993) (holding surgeon liable for failing to disclose alternatives to surgery, even if the result might have been "less perfect . . . but safer or less invasive"); Lori B. Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. LEGAL MED. 163, 197 (1984).

251. See, e.g., Thornton v. Annest, 574 P.2d 1199, 1203 (Wash. Ct. App. 1978) (holding that informed consent did not require physician to disclose x-ray test and consultation with gynecologist as alternatives to removing plaintiff's fallopian tubes during an exploratory surgery).

252. Cf. Madsen v. Park Nicollet Medical Ctr., 431 N.W.2d 855, 861 (Minn. 1988) (disclosure of in-home birth as an alternative to managing pregnancy in hospital not required); Plumber v. State Dept. of Health & Human Resources, 634 So. 2d 1347, 1351 (La. Ct. App. 1994) (disclosure of alternatives to chemotherapy not required, since "[i]n conventional medical wisdom, the alternative to chemotherapy in this situation would be simply to not undergo chemotherapy;" moreover, "[e]ven with information concerning the relatively low documented positive response rate, a reasonable patient who feared the recurrence of cancer would not have forgone chemotherapy. . . .").

253. See, e.g., Lynn Payer, Medicine & Culture: Varieties of Treatment in the United States, England, West Germany, and France 22 (1988). Payer developed a fibroid tumor while traveling through Europe to research her book. In France, her surgeon insisted on a myomectomy, without even mentioning the possibility of a hysterectomy. Back in the United States, she was placed under "a great deal of pressure" to have a hysterectomy. Id. Payer attributes the difference in therapeutic options to cultural differences in the value placed on child-bearing. Id. Hysterectomy is the second most common operation in the United States; the first is Cesarean section. Id. at 130. Cf. Nancy Ehrenreich, The Colonization of the Womb, 43 DUKE L.J. 492, 494-98 (1993) (attributing judicial acceptance of forced medical treatment during pregnancyparticularly Cesarean sectionsto a devaluation of motherhood and reproduction).

254. See Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 229-33 (1985). Shultz argues that vindication of patient autonomy should not depend on whether doctors typically disclose the information. Shultz cites Gates v. Jensen, 595 P.2d 919 (Wash. 1979) (en banc), in which defendant doctor misdiagnosed plaintiff's glaucoma as contact lens irritation; plaintiff went blind and sued. Although the doctor had substituted his judgment for the patient's, because his conduct did not involve touching, the court found no battery. Similarly, in Karlsons v. Guerinot, 394 N.Y.S.2d 933 (N.Y. App. Div. 1977), plaintiff's doctor failed to perform amniocentesis, which would have identified Down's Syndrome in plaintiff's fetus early enough for an abortion; absent touching or body invasion, however, plaintiff could not recover on an informed consent theory.

255. See Schultz, supra note , at 232-41, 253-56.

256. See id. at 252. Shultz provides the example of the patient who, properly informed, would have chosen a lumpectomy rather than a radical mastectomy; a court probably would deem an operation that wiped out the cancer but removed the breast, "successful." Id. Similarly, a patient who wished to die in peace at home or in a hospice, rather than be hooked up to a ventilator, might not be deemed to have been "injured." Id. The examples suggest the extent to which the Newtonian/Cartesian paradigm may dominate informed consent doctrine and bioethics, since "injury" is defined without reference to emotional well-being or personal values.

257. 817 F.2d 987, 989-90 (2d Cir. 1987).

258. Id. at 995 (citing Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914)). See also Maxwell J. Mehlman, Fiduciary Contracting: Limitations on Bargaining Between Patients and Health Care Providers, 51 U. Pitt. L. Rev. 365 (1990).

259. 695 P.2d 116 (Wash. 1985) (en banc).

260. Id. at 119.

261. Id.

262. Id. at 120.

263. Cf. Schultz, supra note , at 264 (advocating the protection of patient choice by "classifying the problem [of medical consent] as one of contractual obligation," rather than tort); Michael H. Cohen, Reconstructing Breach of the Implied Covenant of Good Faith and Fair Dealing as a Tort, 73 CAL. L. REV. 1291, 1315-21 (1985) (distinguishing tortious conduct in the course of the contractual relationship from mere breach of contract).

264. 117 P. 612, 613-15 (Colo. 1911).

265. Id. at 614.

266. Id. at 614-15.

267. Id. at 614.

268. Id.

269. Id. at 615.

270. See, e.g., P. Kutumbiah, The Evolution of Scientific Medicine 1-2 (1971) (describing modern medicine as the triumph of science over irrationality, primitivism and mysticism).

271. See, e.g., Appendix II.

272. See, e.g., People v. Cantor, 18 Cal. Rptr. 363, 364-66 (Cal. App. Dep't Super. Ct. 1961) (af firming conviction for unlawful practice of medicine where defendant laid hands to cure headaches and obesity); State ex rel. Bierring v. Robinson, 19 N.W.2d 214, 217 (Iowa 1945) (upholding faith healer's conviction for practicing medicine illegally); Matter of Cowles v. Board of Regents, 44 N.Y.S.2d 911, 912 (N.Y. App. Div. 1943) (suspending license of physician running faith-healing clinic); Sorgen v. State, 172 N.E. 835, 836 (Ohio Ct. App. 1930) (affirming conviction); People v. Vogelgesand, 116 N.E. 977, 979 (N.Y. 1917) (affirming conviction); see also Griffith v. Dep't of Motor Vehicles, 598 P.2d 1377, 1382 (Wash. Ct. Ap.. 1979) (holding that licensed drugless healer who assisted pregnant women through "natural childbirth" was "practicing medicine" unlawfully).

273. 349 N.Y.S.2d 604, 604 (N.Y. Sup. Ct. 1973).

274. Id. at 611. The court stated that whether certain actions constitute the practice of medicine depends on the facts and not on "the name of the procedure, its origins or [the] legislative lack of clairvoyance." Id. at 611-12.

275. Id. at 612 (quoting People v. Zinke, 7 N.Y.S.2d 941, 947 (N.Y. Mag. Ct. 1938)). The court observed that diagnosis comes from two Greek words meaning "to discern" and "between." Id.

276. Id. at 611.

277. Id. at 612.

278. Id.

279. Id.

280. Id. (quoting Zinke, 7 N.Y.S.2d at 947). Although New York since has regulated acupuncture, Amber has precedential value for the meaning of "diagnosis." In New York, acupuncture now includes "the treating . . . by the application of heat, pressure . . . at a point or combination of points on the surface of the body . . . for the purpose of achieving a therapeutic or prophylactic effect." N.Y. EDUC. LAW S 8211 (McKinney 1995). Cf. Norris v. Metropolitan Life Ins. Co., 447 N.Y.S.2d 671, 672 (N.Y. Civ. Ct. 1982) (holding that an acupuncturist's practice, although separately licensed, constitutes the "practice of medicine" under Section 6521 for purposes of insurance coverage).

281. Amber, 349 N.Y.S.2d at 613.

282. Id. at 608 ("every means and method . . . to relieve . . . infirmity") (quoting People v. Cole, 113 N.E. 790, 793 (N.Y. 1916)).

283. The public acceptance of acupuncture and state licensing of practitioners occurred after President Nixon's visit to China in the early 1970's, when James Reston of the New York Times had an appendectomy and discovered the effect of acupuncture as an anesthetic. See MOYERS, supra note , at 252.

284. See Kuhn, supra note , at 34.

285. Cf. Curley v. State, 16 So. 2d 440, 443 (Fla. 1943) (en banc) ("[A]ccording to Shakespeare's Hamlet, `There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.' . . . So the Legislature and the courts might well accord our citizens the liberty to decide such questions [as the manner of health care] . . . for themselves.").

286. See infra notes -99 and accompanying text.

287. See, e.g., Dossey, supra note , at 228-29 (describing Planetree, a unit in San Francisco's Pacific Presbyterian Medical Center that includes massage therapists on its staff, allows patients to "read up" on their illness, and creates a "warm, nurturing environment" through special lighting and furniture, and by acknowledging patient attitudes and feelings).

288. See supra notes -.

289. People v. Sher, 561 N.Y.S.2d 872, 873 (N.Y. Sup. Ct. 1990) (citing People ex. rel. Bennett v. Laman, 295 N.Y.S. 728, 732 (N.Y. App. Div. 1937), rev'd on other grounds, 14 N.E.2d 439, 446 (N.Y. 1938)).

290. Gerald N. Grob, The Social History of Medicine and Disease in America: Problems and Possibilities, in The Medicine Show 1, 10 (Patricia Branca ed., 1977).

291. Id.

292. See generally T. Romeyn Beck, A Sketch of the Legislative Provision of the Colony and State of New-York, Respecting the Practice of Physic and Surgery, N.Y. J. Med. 139 (1822). The New York statute adopted in 1760 was the first to require a government license for the practice of medicine. RICHARD H. SHRYOCK, MEDICAL LICENSING IN AMERICA 1650-1965, at 17 (1967). As early as 1649, the Province of Massachusetts had adopted a law regulating "Chirurgeons, Midwives, Physitians or others." Id. at vii. Violators were subject to "severe punishment;" however, the Act was not effectively enforced. Id.

293. Beck was a distinguished historian of medicine who pioneered the development of medical jurisprudence in the mid-nineteenth century. See JAMES C. MOHR, DOCTORS AND THE LAW 15-28 (1993).

294. Beck, supra note , at 139.

295. Id. at 140 (citing Laws of New-York from 1691 to 1773, at 672 (Peter Van Schaack ed., 1774)). In 1772, a provision was added compelling physicians and surgeons to perform professional duty in cases of invasion, and to join the military in an attack on a neighboring province initiated out of "self-defense." Id. at 141 (citing 2 William Livingston anD WILLIAM SMITH, JR., LAWS OF NEW-YORK, FROM 1752 TO 1762, at 123 (1762)).

296. Id.

297. Id.

298. Id. at 142.

299. Id.

300. Id. (citing Livingston & Smith, supra note , at 198). The act, however, exempted from its operation all persons already practicing medicine in the city. Id.

301. Id. at 143.

302. Id.

303. Id.

304. Id. at 144-45.

305. Id. at 145. According to Beck, this legislation "pressed hard" on a William Firly. Id. Firly apparently had a reputation for obtaining cures; citizens petitioned the legislature, which responded by granting Firly a certificate to practice. Id. In 1806, the legislature passed a law compensating a John M. Crous for discovering and publishing a cure for hydrophobia. The "cure" was subsequently discredited and ridiculed, along with the legislation. Id. at 146-47. A later act permitted a Peter Dawson to "use and improve the skill he possesses in curing the malady called cancer" and to receive compensation for his services. Dawson applied a preparation to diseased parts of the body; the preparation turned out to contain arsenious acid and powdered hemlock. Id.

306. Id. at 148.

307. Id. The law excepted those using roots or herbs. Id. at 149.

308. The practitioner also could be licensed upon filing proof of graduation from a college of medicine. See id. at 150 (discussing the 1813 statute).

309. See Joseph F. Kett, The Formation of the American Medical Profession: The Role of Institutions 1780-1860, at 21 (1968).

310. Id.

311. Rosemary Stevens, AmerICAN MEDICINE AND THE PUBLIC INTEREST 26-27 (1971).

312. Id. at 32.

313. A contemporary of Beck remarked: Loud as the call is, to our shame be it remembered, we have no law to protect the lives of the king's subjects from the malpractice of pretenders. Any man, at his pleasure, sets up for physician, apothecary, and churgeon. No candidates are either examined or licensed, or even sworn to fair practice. Beck, supra note , at 141 (quoting Smith, History of New York 326 (1814)).

314. Shryock, supra note , at 3.

315. Id. at 4. The president of the New York State Medical Society remarked in 1818 that most were "ignorant, degraded and contemptible." Id. (quoting John Stearns, Presidential Address, I N.Y. St. Med. Soc'y Trans. 139 (1818)).

316. Beck, supra note , at 143 (quoting Smith, supra note , at 326).

317. William G. Rothstein, American Physicians in the Nineteenth Century: From Sects to Science 63 (1972).

318. Id. at 64.

319. See id. at 64-65. Richard Shryock attributes these societies in part to "middle-class humanitar ianism," which aimed at strengthening education and licensure to eliminate the distinction between "first-class" physicians, who served the rich, and second-class practitioners, who served the masses. SHRYOCK, supra note , at 11-13. However, Shryock also notes the interest in "professional control" of the medical marketplace. Id. at 18. In Connecticut in 1767, for example, some thirty "doctors" organized a society and petitioned the legislature for authority to examine and license practitioners. Id. They condemned anyone who opposed their views as "an enemy of physic and all learning." Id.

320. Shryock, supra note , at 23.

321. Id. at 24.

322. Id. at 25-26. This began with Harvard's medical school, founded in 1783. Id.

323. Id.

324. Id. at 28. Between 1800 and 1900, over 400 medical schools were founded. Stevens, supra note , at 24.

325. Stevens, supra note , at 24-25.

326. Rothstein, supra note , at 41-62.

327. Id. at 61-62 (citing Dan King, The Evils of Quackery, and its Remedies, 40 BOSTON MED. & SURGICAL J. 373 (1849)).

328. This became known as "heroic medicine," Rothstein, supra note , at 125, because physicians were "ignorant, dogmatic, and committed to heroic therapy." Id. at 127.

329. Id. at 127-28.

330. Id. at 139 (quoting Samuel Thomson, New Guide to Health: or, Botanic Family Physi cian, containing a Complete System of Practice, on a Plan Entirely New; with a Description of the Vegetables made use of, and Directions for Preparing and AdminISTERING THEM, TO CURE DISEASE, TO WHICH IS PREFIXED, A NARRATIVE OF THE LIFE AND MEDICAL DISCOVERIES OF THE AUTHOR 32 (1832)). Thomson's discoveries grew out of an existing American botanical tradition that had already been practiced for two hundred years. Id. at 158. For a discussion of Thomsonism as a uniquely American political theory and cultural expression, see KETT, supra note , at 97-131.

331. Rothstein, supra note , at 142-44. From 1827 to the Civil War, at least twenty-two Thomsonian medical schools were founded. Id. at 146. Thomson had sought to wean Americans from dependence on physicians and back to the wilderness society, where individuals could heal themselves from natural properties available in plants and herbs; his followers sought to create a canon from his system and exclude competitors. Id. at 151.

332. Id. at 144-45.

333. See id. at 217.

334. Id. at 218. Rothstein criticizes the eclectics as selling therapeutically useless drugs and creating a body of practice that "paralleled, in many ways, the worst of the regular practice." Id. at 223. However, numerous Native American Indian drugs, which were part of eclectic practice, later received scientific recognition and were incorporated into Western pharmacopeia. See VOGEL, supra note , at 8.

335. Rothstein, supra note , at 152.

336. Id. at 152-54. Hahnemann apparently spoke at least nine languages. Id. at 152.

337. Id. at 154.

338. Id. at 155-56.

339. Id. at 157. Hahnemann also advocated fresh air, rest, diet, exposure to the sun, public hygiene, and other measures disregarded by physicians of the time. Id. at 158.

340. Id. at 169-70; Harris L. Coulter, Divided Legacy: The Conflict Between Homeopathy and the American Medical Association 158-95 (1973).

341. See Andrew Wear, Introduction, in Medicine in Society: Historical Essays 3, 7 (Andrew Wear ed., 1992) (discussing similar developments in Britain). See also Coulter, supra note , at 184 (arguing that the term "medical education" was a "code expression" for the true concern of regular physicians: their inability to earn a decent living).

342. Rothstein, supra note , at 170. The AMA also was founded as a reaction against the proprietary schools. See Kenneth M. Ludmerer, Learning to Heal: The Development of Ameri can Medical Education 27 (1985).

343. Rothstein, supra note , at 170-71 (citing Austin Flint, Medical Ethics and Etiquette, 37 N.Y. Med. J. 371-72 (1883)). The National Medical Convention of 1847 referred to homeopathy as "being allied to empirical imposture." COULTER, supra note , at 194 (quoting MINUTES OF THE PROCEEDINGS OF THE NATIONAL MEDICAL CONVENTION 87 (1847)).

344. See Coulter, supra note .

345. See id. at 202-13 (describing efforts).

346. Id. at 206 (citing IX Transactions of the American Medical Association 33 (1856)).

347. Id. at 205-06.

348. Id. at 301 (citing American Medical Association, 13 Med. Rec. 64 (1878)).

349. Rothstein attributes the demise of homeopathy and other sects to the fact that medicine "now rested on demonstrable scientific proof, and science, not faith, was to be the arbiter between the valid and the invalid." ROTHSTEIN, supra note , at 323. Rothstein asserts that, unlike homeopathy, the new "cults," such as osteopathy, chiropractic and Christian Science, tended to complement rather than challenge scientific medicine. Id. at 323 n.62. Rothstein concludes that scientific methods "transformed medicine from sect to science." Id. at 326. Coulter argues that homeopathy was finally crushed by the pharmaceutical industry, which passed the introduction of new medicines from physician to pharmaceutical manufacturer, and put the economic power of the drug industry behind regular medicine. COULTER, supra note , at 402-03. Coulter observes that, of the 250 medical journals published at the turn of the century, all except one were supported by advertisements from pharmaceutical companies. Id. at 415. Coulter also acknowledges the role of internal dissension within the ranks of homeopaths. See id. at 426-27; see also ROTHSTEIN, supra note , at 239-43 (describing the split between "high dilutionists," who accepted Hahnemann's teachings, including his extreme dilutions, and "low dilutionists," who deviated from homeopathic orthodoxy).

350. See Rothstein, supra note , at 249-81; Ludmerer, supra note , at 238 (noting that scientific medicine allowed doctors to perceive themselves as part of a national community with similar methodologies, rather than argue theory); Wear, supra note , at 10 (observing that bacteriology, antiseptic techniques, and the integration of chemistry with physiology, pathology and therapeutics gave medicine the prestige of science).

351. Atkinson, supra note , at 254. The discovery of ether anesthesia immediately led to a bitter legal struggle among the various innovators for recognition. This included patent challenges, a Congressional investigation, and controversy on both sides of the Atlantic. See id. at 256-59; Robert G. Richardson, The Surgeon's Tale: The Story of Modern Surgery 18-20 (1958).

352. This was largely the work of Joseph Lister. See Richardson, supra note , at 38-46.

353. William G. Rothstein, American Medical Schools and the Practice of Medicine: A History 70 (1987) [hereinafter Practice of Medicine].

354. See generally James G. Burrow, AMA: Voice of American Medicine (1963).

355. See Coulter, supra note , at 430 (quoting 36 JAMA 1436 (1901)).

356. Id. at 430 (citing 39 JAMA 1200 (1902)).

357. Stevens, supra note , at 66-67.

358. Abraham Flexner, Medical EducatiON IN THE UNITED STATES AND CANADA, CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING, BULLETIN NUMBER FOUR (1910).

359. Ludmerer, supra note , at 167, 180.

360. Practice of Medicine, supra note , at 145. Rothstein challenges the conclusion that the Flexner Report caused major reforms. Id. at 146.

361. See Coulter, supra note , at 446-49. Flexner espoused "scientific medicine" and scientific research to validate medical hypotheses. Ludmerer, supra note , at 174. The Flexner report did result in a homogenous system of medical education dedicated to academic excellence. Id. at 245. It also led to the "rule-of-thumb" practitioner, who orders unnecessary tests and generates undue expense and discomfort. See id. at 280 (advocating a return to the "thinking physician," who "realizes that many techniques and procedures have limited applicability, that others have no role at all, and that in the great majority of cases the most reliable information is still obtained from the patient").

362. Ludmerer, supra note , at 174 (quoting FLEXNER, supra note , at 63).

363. See id. at 235 (citing Flexner, supra note , at 169).

364. Id. at 237.

365. Id.

366. Id. at 241.

367. Id.

368. Id.

369. Coulter, supra note , at 446. Coulter argues that the AMA classifications, while purporting to be objective, were weighted heavily against homeopaths. Id. at 447. Coulter notes the anti-homeopathic bias in the Flexner report, id., particularly Flexner's questioning whether "`in this era of scientific medicine, sectarian medicine is logically defensible,' and of course, deciding in the negative." Id. (quoting FLEXNER, supra note , at 156).

370. Stevens, supra note , at 68 (citing Report of Commissioner of Education 197 (1915)).

371. Id. at 68-69. The Flexner report advocated denying philanthropic funds to homeopathic schools. Coulter, supra note , at 449.

372. Coulter, supra note , at 450 (citing The General Education Board: An Account of Its Activities, 1902-1914 168-70 (1915) and Willis A. Dewey, EducatioN IN HOMEOPATHIC MEDICINE DURING THE BIENNIUM, 1918-1920 (1921)).

373. Rothstein, supra note , at 296-97. The last elective course in homeopathy was taught at the Hahnemann Medical College in Philadelphia in the early 1960's. Id. at 297.

374. Ludmerer, supra note , at 255.

375. See generally Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (1970); Wear, supra note , at 1.

376. Austin Flint, Medical Ethics and Etiquette: A History of the American Medical Association, 1847 TO 1947 35-70 (1947) (quoted in BURTON J. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM: THE MIDDLE CLASS AND THE DEVELOPMENT OF HIGHER EDUCATION IN AMERICA 192-93 (1976)).

377. See, e.g., Katz, supra note , at 28 (advocating "uprooting the prevailing authoritarian value and belief systems and replacing them with more egalitarian ones" by challenging the presumption that doctors should make health care decisions for their patients).

378. Patricia Branca, Towards a Social History of Medicine, in Medicine SHOW, supra note , at 93. Katz relates that he once asked a class of senior medical students, "What kind of human beings are patients?" The response: "Patients are children who must be taken by the hand and guided to make the decisions we think best for them." KATZ, supra note , at 101. Katz suggests that patient fear and helplessness result in part from the "regressive manifestations" of unconscious infantilization by physicians. See id. at 101.

379. Branca, supra note , at 89. Branca asks: How the physician became omnipresent partaking of joyous events such as the birth of a child to those emotional pressure points when sickness and death draw the doctor and patient closer together is a topic open for discussion. Obviously, this close relationship has not always existed. Did the doctor force himself on the individual, the family, the community, making all its members _particularly the presumed weakest women and children_ totally dependent upon him as he monopolized all aspects of health care by regula-ting the sale of drugs, by ban ning charlatans through legislation requiring medical certification for all those purporting to deal with the sick? Did the monopolization come about by doctors keeping their art, like their handwriting, unintelligible to the lay person, their white coats symbolizing their sacrosanct mystic, if their technical jargon and control over health facilities, such as hospitals did not do the trick? Id.

380. Paul Starr, The Social Transformation of American Medicine ix (1982).

381. Freidson, supra note , at 147; see also Ehrenreich, supra note ; Peizer, supra note , at 157 (noting that since home birth is not illegal in any state, and no state requires that a physician be in attendance at birth, physicians have maintained control over the birthing process by creating "a climate of fear" about birth, and by using their political muscle to restrict midwifery).

382. Friedson, supra note , at 147. Disease is simultaneously a biological occurrence, a culturally and historically generated verbal construct, an object of public policy, and an aspect of psychic identity. See Charles Rosenberg, Introduction to CHARLES ROSENBERG & JANET GOLDEN, FRAMING DISEASE: STUDIES IN CULTURAL HISTORY xiii, xiii (1992). Animals do not "socially construct their ailments and negotiate attitudinal response to sufferers." Id. Thus, a disease does not exist as a social phenomenon until named. Id. Cf. SUSAN SHERWIN, NO LONGER PATIENT: FEMINIST ETHICS AND HEALTH CARE 180-93 (1992) (describing historical views of menstruation, and of women's body size and eating habits, as illness).

383. Eric Cassell claims that technology's hold on healing resulted from two reductive steps in the history of medicine: The first step was reducing the problem of human illness _with all its intricate physical, social, emotional, and cultural aspects to the biological problem of disease . . . . The second reductive step follows from the scientific investigation of diseases. Here the findings of science become the accepted picture of the disease, further oversimplifying the problem. Eric J. Cassell, The Sorcerer's Broom: Medicine's Rampant Technology, 23:6 HASTINGS CENTER REP. (1993).

384. See Pelletier, supra note , at 3.

385. Cassell, supra note , at 36.

386. Id. at 34-38. Cassell gives the example of an attending physician and medical students standing outside the room of a dying patient whose suffering could not be controlled: Did they speak about her suffering or what to tell her or do for her? No, they were reading her test results and X-ray filmsirrelevant to her present problem but much simpler and more immediate. Id. at 34.

387. See, e.g., Rupert Sheldrake, A New Science of Life: The Hypothesis of Formative Causation 11 (J.P. Tarcher 1989) (observing that for the past century, the "mechanistic paradigm" has predominated, viewing living organisms as "physicochemical machines," and explaining "all the phenomena of life" in terms of physics and chemistry).

388. See generally Cassell, supra note . Cassell is not against technology so much as in favor of recognizing its limitations. His task is "to see what there is about PET scanners, MRI, angioplasty, endoscopy, automated chemistry machines, and so on, _the whole wondrous parade, not the science that spawned them_ that poses problems for medicine." Id. at 32-33. Cf. EMPATHY AND THE PRACTICE OF MEDICINE ix (Howard M. Spiro et al., eds. 1993) (suggesting caregiver empathy "the power of projecting one's personality into the object of contemplation, and so fully understanding it" as one antidote to technological care).

389. See Denise Niemira, Life on the Slippery Slope: A Bedside View of Treating Elderly Patients, 23:3 Hastings Center Rep. 14 (1993). Niemira asks: "What do I owe patients who cannot speak for themselves and who exist in a state I consider not worth living? . . . We arrange to feed them when they have forgotten how, clean them when they are unaware of bodily functions, turn them when they can no longer move . . . . As physicians, we are practicing in an age of cognitive dissonance. We are trained to treat and to cure the sick . . . . But we are unsure of what to do for those who are neither curable nor dying." Id. at 14-16.

390. Daniel Callahan, Pursuing a Peaceful Death, 23:4 Hastings Center Rep. 33 (1993). Callahan provides the example of a person cured of cancer at seventy-five who is "set up" for Alzheimer's disease at eighty. Id. at 35. Callahan notes: "We increase the likelihood of spending our declining years helpless, demented, and incontinent if medicine saves our lives long enough to help us avert all of the lethal diseases that stand in the way of that (not so splendid) final outcome." Id.

391. See Ronald E. Cranford, Going Out in Style, the American Way, 17 Law, Med. & Health Care 198, 200 (1989).

392. Callahan, supra note , at 33-34. Callahan contrasts the ideal of peaceful death with the "wild" death of technological medicine. Id. at 33. The latter is characterized by terror, isolation, and degradation. Id. Technological "brinkmanship" deforms the process of dying, intensifies the "withering" of the human body in destructive ways, and enhances the horror of death, both to the patient, and to family and society. Id. at 33-35. Callahan describes the peaceful death as follows: "[F]or the individual it can bring life to a fitting close, marked by connection to the self through reason and self-consciousness, and by connection to others through dying within the circle of human companionship and caring." Id. at 37-38.

393. For additional examples, see R.D. LAING, THE POLITICS OF EXPERIENCE (1967); MARY BARNES, TWO ACCOUNTS OF A JOURNEY THROUGH MADNESS (1973). Cf. Juliene Lipson, Cross-Cultural Medicine A Decade Later: Health Issues of Afghan Refugees in California, 157 J. W. MED. 271, 275 (1992) ("[P]ast traumatic experiences, cultural conflict, economic problems, family strain, or loneliness may be the key to symptom for which medication can do little.").

394. William Styron, Darkness Visible: A Memoir Of Madness 77 (1990).

395. Id. at 36-37.

396. See id. at 78; cf. Sherwin, supra note , at 85 ("by medicating socially induced depression and anxiety, medicine helps to perpetuate . . . oppression and deflects attention from the injustice of . . . [the victim's] situation.").

397. See Styron, supra note , at 81-84.

398. See also Joseph S. Alpert & Helle Mathiasen, Healing, 251 JAMA 1617 (1984) (review of Norman Cousins, The Healing Heart: Antidotes to Panic and Helplessness, and Andrew Weil, Health and Healing: UnderSTANDING CONVENTIONAL AND ALTERNATIVE MEDICINE).

399. See Martin Kaufman, Homeopathy in America, in Gevitz, supra note , at 115-16. Naturopathic colleges on the West Coast have begun teaching homeopathy, id. at 116, and lay groups meet to study homeopathic remedies. Id. at 117. In 1980, Arizona established a homeopathic licensing board, with the power to examine and license M.D.'s in the practice of homeopathy. Id. at 121. Subsequently, Connecticut and Nevada established homeopathic boards for licensing. Id. at 122.

400. Hoke, supra note . For instance, an associate professor of clinical psychology at Columbia University College of Physicians and Surgeons in New York will be covering nutrition, hypnosis, biofeedback, homeopathy, chiropractic, and therapeutic touch. Id.

401. Alternative Medicine: Implications for Clinical Practice (course description available from David M. Eisenberg, M.D., Harvard Medical School).

401. James H. Cassedy, Medicine in America: A Short History 148-49 (1991).

401. Id. at 149.

404. See, e.g., Victor Herbert, Holistic Medicine, 256 JAMA 1202 (1986) (review of Douglas Stalker & Clark Glymour, Examining Holistic Medicine (1985)) (heralding the book as "dynamite, an absolute smash!" that "lays bare holistic medicine as . . . a melange of banalities, truisms, exag gerations, and falsehoods, overlaid with disparagement not only of scientific conclusions but of logical reason itself"). Herbert urges that "every responsible health professional" not only buy the book, but also "send copies to our well-meaning legislators who are suckered by charismatic holistic promoters into supporting the irrational, the unsound, and the dangerous in health care." Id. at 1223. See also Deepak Chopra, Closing the Chapter on Maharishi Ayur-Veda, 267 JAMA 1338 (1992) (decrying the journal's "lurid . . . knee-jerk . . . scorn" of aryuvedic medicine, which portrayed its proponents as "quacks and unprincipled agents of a conspiracy to `infiltrate' prestigious journals with our superstitious nonsense"). Chopra asserts: "We present sound scientific research . . . . In stark contrast, JAMA's subsequent attack portrays a cult that uses deceptive practices . . . ." Id.

405. See supra S II.D.

406. 442 U.S. at 558. "Since the turn of the century, resourceful entrepreneurs have advertised a wide variety of purportedly simple and painless cures for cancer, including liniments of turpentine, mustard oil, eggs, and ammonia; peat moss; arrangements of colored floodlamps; pastes made from glycerin and limburger cheese; mineral tablets; and `Fountain of Youth' mixtures of spices, oil, and suet." Id.

407. Id. In Rutherford, there was no evidence of fraud; only an acknowledgement that "safety and effectiveness" had not yet been demonstrated according to FDA standards. Section IV separately analyzes the requirements for fraud and the scope of practice issue.

408. See Ehrenreich, supra note , at 565 (citing judicial deference to medical opinion in cases involving reproductive rights).

409. Ehrenreich cites the law's adherence to "dualistic thinking, which is challenged by the notion of alternative health care." Id. Ehrenreich describes law and medicine as "mutually legitimating discourses and practices." Id. at 566. She points to the use of a custom standard in medical malpractice as one example, which allows "medicine to be its own judge." Id. Conventional bias against alternative healers may have deeper roots than deference to twentieth-century scientific optimism. In the Middle Ages, the Catholic Church financed and organized a campaign to discredit women healers as witches. Peizer, supra note , at 146. Medicine established male dominance in childbirth by "convinc[ing] the public that childbirth was inherently pathological and unsafe, a dangerous condition that required the attention of the more highly valued male birth attendants." Id. at 147.

410. See infra S IV.A.

411. Stuart M. Speiser et al., The American Law of Torts S 32.1, at 207 (1992).

412. Id.

413. Id. (citing Citizens State Bank v. Gilmore, 603 P.2d 605, 609 (Kan. 1979)).

414. Id. at 212 n.6 (citing cases).

415. See id. at 213 ("It is a deception deliberately practised with a view to gaining an unlawful or unfair advantage.").

416. See id. at 213, 290 (citing Shaffer v. Wolbe, 148 S.E.2d 437 (Ga. Ct. App. 1966) ("not prompted by an honest mistake, but prompted by some sinister motive")). Fraud vitiates contracts and subjects a party to liability for the wrong. Id. at 221, 223.

417. The term "quack" is derived from the Dutch quacksalver, meaning one who quacks like a duck (or boasts) about his medicinal cures. GEVITZ, supra note , at 2.

418. See, e.g., Richard Thompson, The Sad Allure of Cancer Quackery, 19 Food & Drug Admin. 36 (1985).

419. Conceivably, however, we should acknowledge the patient's desperation, gullibility and need for protection. In this view, the "practice of medicine" statutes serve to prevent false, misleading and deceptive practices in the purchase of health services. Cf. 15 U.S.C. SS 45, 52 (1988) (defining what constitutes "false advertising" of food products or cosmetics within sections 5 and 12 of the Federal Trade Commission Act). However, this cuts against the autonomy argument below. Moreover, doctrines of health care practitioner negligence might adequately cover these scenarios. See, e.g., SPEISER ET AL., S 15.10 et seq.

420. The counter-argument typically is that preventing fraud is, after all, the purpose of defining the "practice of medicine." See, e.g., Amber, 349 N.Y.S.2d at 605 (holding that the "practice of medicine" must be interpreted sufficiently broadly to encompass all therapies, including those pre-sently unknown). This argument is tautological. It asserts that the purpose of defining "medicine" is to prevent fraud, defines medicine as "diagnosis" and "treatment," describes a broad range of interaction with the sick as diagnosing or treating, and labels anyone who does so and is not a physician, a fraud.

421. See, e.g., Brennan, supra note , at 81 (referring to "energy diagnosis").

422. Id. at 142. Similarly, disease and its diagnosis in Chinese medicine have a completely different meaning than they do for Westerners. In Chinese medicine, an individual can experience energetic imbalances in the form of heat, cold, wind dampness, and dryness, and deficiencies of blood, moisture, and chi. Beinfield & Korngold, supra note , at 38. Thus, diabetes, for example, "is described as severe dryness or deficiency of moisture." Id. at 39. The diagnosis is Dryness regardless of whether it originates externally (for example, cracked skin due to a dry climate) or internally (inability of diabetic to retain fluid). Id. at 38-39. Disease represents an imbalance in chi; treatment consists of restoring balance. Id. at 44.

423. See, e.g., Wirth, supra note (evaluating the efficacy of non-contact therapeutic touch on wound healing).

424. Cf. Lavergne v. State Bd. of Med. Examiners, 539 So.2d 656 (La. Ct. App. 1986) (physical therapist's evaluation of a patient's ankle, together with his suggestion that the patient keep ice on the ankle and, if pain persisted, see a physician, did not constitute a medical diagnosis or treatment).

425. See, e.g., People v. Jihan, 537 N.E.2d 751 (Ill. 1989). In Jihan, where defendant contracted to assist a couple with childbirth, the couple signed a release acknowledging defendant's lack of licensure or experience. Id. at 753. Here, Sagebrush is not purporting to "cure" Quicksilver's disease nor to be the sole care-giver for it; indeed, Sagebrush is demanding that Quicksilver consult a physician. As the Andrews court suggested, the legislature could tighten this option by requiring, in addition to a disclaimer, that Sagebrush practice under the supervision and control of, or in consultation with, a licensed physician. 498 F. Supp. at 1056. The problem with the former option is that physicians are "neither skilled nor trained," id. at 1054 (referring to acupuncture), unless they have taken courses in therapeutic touch, healing touch, or some related modality. Alternatively, the state could allow touch healers to practice independently of licensed physicians, but could require diagnosis by or referral from such physicians. See id. at 1056.

426. See infra S IV.C.

427. See generally Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics 120 (1994); Susan M. Wolf, Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 Md. L. Rev. 798, 840 (1991). Beauchamp & Childress identify four clusters of moral principles as central to biomedical ethics: respect for patient autonomy, non-malfeasance (avoiding harm), beneficence (providing benefits, as balanced against risks and costs), and justice (fairness). BEAUCHAMP & CHILDRESS at 38. Critics have argued that the authors' approach fails to give an appropriate role to multiculturalism in bioethics. See, e.g., Kevin W. Wildes, After the Fall: Particularism in Bioethics, 18 J. MED. & PHIL. 505, 507 (1993); Ronald M. Green, Method in Bioethics: A Troubled Assessment, 15 J. MED. & PHIL. 179, 188 (1990). For a response, see Tom L. Beauchamp, The Principles Approach, Special Supplement, 23:6 HASTINGS CENTER REP. S9 (1993). See also Susan M. Wolf, Toward A Theory of Process, 20:4 LAW, MED. & HEALTH CARE 278, 280-82 (1992) (observing that most commentators agree on core values, "making the patient in most cases the ultimate judge of what treatment is acceptable").

428. Beauchamp & Childress, supra note , at 125; see also Robert J. Levine, Informed Consent: Some Challenges to the Universal Validity of the Western Model, 19:3-4 LAW, MED. & HEALTH CARE 207, 208 (1991) (discussing a similar definition of autonomy as proposed by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research).

429. Beauchamp & Childress, supra note , at 125.

430. Id. These two ideals derive from the work of Immanuel Kant and John Stuart Mill, respectively. Id.

431. Beauchamp & Childress, supra note , at 126; see also Bruce J. Winnick, On Autonomy: Legal and Psychological Perspectives, 37 VILL. L. REV. 1705, 1715-43 (1992).

432. See Beauchamp & Childress, supra note , at 126.

433. See Bruce J. Winnick, Competency to Consent to Treatment: The Distinction Between Assent and Objection, 28 Hous. L. Rev. 15, 46 (1991) (arguing that informed consent strikes a balance between individual autonomy and societal paternalism). Although informed consent protects autonomy, it mirrors the Western vision of personhood, a minority viewpoint in the world. Levine, supra note , at 209. The Western perspective is pervaded by logical-rational dichotomies. This view sharply opposes body and mind, thought and feeling, the conscious and unconscious, self and other, reality and non-reality (imagining, dreaming, and hearing voices, for example are not "real"). Id. (quoting Willy De Craemer, A Cross-Cultural Perspective on Personhood, 61 MILBANK MEMOR-IAL FUND Q. 19, 21 (1983)).

434. Beauchamp & Childress, supra note , at 126. The authors provide the following examples: endangerment of public health, potential harm to innocents, or reliance on a scarce resource for which funds are unavailable. Id.

435. Id. at 274; see also Sherwin, supra note , at 137-38.

436. Beauchamp & Childress, supra note , at 274.

437. Id. at 277.

438. Id.

439. Susan Sherwin cites three traditional arguments used by physicians to support medicine's paternalism: that illness and the debilitating fear of illness compromise patients' reasoning abilities; that only those who possess technical scientific knowledge can make adequate medical decisions; and that patients benefit from their belief in the physician's wisdom and power. SHERWIN, supra note , at 139-40. Sherwin refutes each of these in turn, arguing that alluding to patient "reasoning" is in itself a tool to perpetuate physician dominance; that many personal decisions have been "medicalized" and involve neither illness nor fear; that medicine overrelies on laboratory reports and dismisses patients' subjective experience of their own diseases; that "the use of mystifying, exclusionary language in science helps to defend its hierarchical structures and discourages challenge;" and that patients who actively participate in their own health care heal more thoroughly than those "who are kept as passive recipients of authoritative treatment." Id. at 140-51.

440. Beauchamp & Childress, supra note , at 283. The authors advocate adding as a fifth condition that autonomy not be substantially restricted. The suggested example is the Jehovah's Witness who refuses a blood transfusion because of religious beliefs. Id.

441. Some would argue that even weak paternalism is unjustified. For example, a nineteenth-century professor of midwifery and medical jurisprudence argued as follows: The very first principle of our government is that man is capable of governing himself, and requires no protection from his own acts; if he chooses to employ a Thompsonian or botanic or Indian doctor (as they term themselves), he has a perfect right to do so, and to prevent him is to interfere with the inalienable rights of man, and is not to be tolerated. Charles Coventry, History of Medical Legislation in the State of New York, N.Y. J. MED. 152, 156 (1845).

442. Cf. Joel Feinberg, Harm to Self, 3 The Moral Limits of the Criminal Law, 52-97 (1986), cited in Beauchamp & Childress, supra note , at 410 (defining autonomy with reference to a zone of "breathing space" around the body).

443. Cf. William Kroger, Clinical and Experiment Hypnosis in Medicine, DentistRY, AND PSYCHOLOGY (2d ed. 1977). Kroger attributes much of healing to the patient's expectation of cure, which mobilizes inner forces for recovery. Id. at 134-35.

444. The doctrine of assumption of risk should also be considered here; after all, the patient must bear some responsibility for overreliance on the alternative. See supra notes -63 and accompanying text.

445. See supra notes - and accompanying text.

446. Anecdotal evidence is given little credence; the emphasis is on quantification through double-blind randomized controlled trials. The anomaly is that in the "majority" of clinical situations, "treatment decisions cannot be based on such trials," because often trials have not been conducted on the issue, or the condition is so rare that trials are not feasible, or the trial result does not apply to the individual patient. Gordon Guyatt et al., Determining Optimal TherapyRandomized Trials in Individual Patients, 314 NEW ENG. J. MED. 889, 889 (1986). "Physicians therefore face a paradox when they try to practice `scientific' medicine." Id.

447. Dana Ullman, Beyond Medical Chauvinism, in California Living Magazine, S.F. Sun. Exam. & Chron., Aug. 21, 1983, at 4. Pointing to state medical practice acts, Ullman argues that since potential competitors are made "either subservient or illegal," medical chauvinism is as pernicious as racial or sexual chauvinism. Id.

448. In David Eisenberg's study, only four percent of respondents who reported using unconventional therapy for a principal medical condition saw an unconventional provider without also seeing a medical doctor. Eisenberg et. al., supra note , at 249. No respondent saw a provider of unconventional therapy, but not a medical doctor, for treatment of cancer, diabetes, lung problems, skin problems, high blood pressure, urinary tract, or dental problems. Id.

449. See Callahan, supra note , at 38 (describing the "artificially extended deat[h]").

450. Prohibiting treatments such as homeopathy by physicians is particularly troubling. See In re Guess, 393 S.E.2d 833, 837 (N.C. 1990) (noting that the legislature authorized the licensing board to "punish any [departure] from acceptable and prevailing standards, irrespective of whether a patient is injured thereby").

451. See supra note and accompanying text; supra note .

452. One example suggesting the importance of autonomous patient decision-making is the decision by a terminally ill cancer patient to try visualization for pain management, rather than a physician-recommended pharmacological agent that creates drowsiness. See KROGER, supra note , at 222-25; cf. People v. Cantor, 18 Cal.Rptr. 363 (1961) (upholding conviction of hypnotist for "practicing medicine" unlawfully). Such a patient presumably would want to end his life with a clear mind, rather than in a drug-induced stupor. See Callahan, supra note , at 36 (voicing patient expectations of a peaceful death; "I want to be conscious very near the time of my death, with my mental and emotional capacities intact.").

453. See infra note and accompanying text.

454. Beauchamp & Childress, supra note , at 70-77.

455. Id. at 71.

456. Id. at 70-71. Individuals' and groups' rights may clash. For example, the individual's "right to health care" may clash with physicians' rights. Id. at 71.

457. See id. at 85. Indeed, since the patient may not even know she faces a vital health care decision and has the authority for that decision until the health care professional tells her so, autonomy depends on the care-giver's support. Wolf, supra note , at 840. Wolf advocates giving greater due process in hospital ethics committees, so that the patient's rights will be voiced "in the caregiving context," rather than in litigation. Id. at 854.

458. Beauchamp & Childress, supra note , at 85.

459. Id.

460. Id.

461. Id. at 88; see also Wolf, supra note , at 858 (arguing that the patient is "entitled to more than rights; she is entitled to sensitive caregiving"). The moral response the care ethic presents is "attached attentiveness to needs, not detached respect for rights." BEAUCHAMP & CHILDRESS, supra note , at 89. Cf. DAVID B. WEXLER & BRUCE J. WINNICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE 3-15 (1992) (eschewing a rights-based analysis of mental health law in favor of one that examines whether rules and rulemakers produce therapeutic outcomes for patients). The rights-based analysis "obscures the devalua tion of . . . interests that occurs before those interests are `balanced' against other interests." Ehrenreich, supra note , at 497-98.

462. Beauchamp & Childress, supra note , at 89. Beauchamp & Childress acknowledge that "few . . . crippling criticisms" can be leveled against the ethics of care. Id. at 90. A care ethics "cor rect[s] an undue obsession with impartiality" in traditional ethical theories. Id. at 92. Cf. Cassell, supra note 376, at 34 ("Why isn't the examining hand on the abdomen just as immediate as looking at a readout or computer-generated image? Because it isn't just a hand, or sensations in the fingers, it is a doctor feeling responsible for the approximation to an unseen reality of what fingers tell, and what it means.").

463. Phyllis B. Taylor & Ginette G. Ferszt, Spiritual Healing, 4(4) Holistic Nurs. Prac. 32, 33 (1990). The authors note that, for the nurse who confronts so much suffering and pain, "[w]e have often relied on the concept that when we can't cure, we can care and can help make the person comfortable physically and emotionally . . . . Finding or creating opportunities to deal with the feelings generated by caring for dying patients is critical in caring . . . ." Id.; see also Michael H. Cohen, Toward a Bioethics of Compassion, 28 IND. L. REV. __ (1995) (describing models of caregiving and curegiving).

464. Dossey, supra note , at 251. See also Carol Purcell, Holistic Care of a Critically Ill Child, 9:2 Intensive & Crit. Care Nurs. 108 (1993); M.D. Resnick et al., The Impact of Caring and Connectedness on Adolescent Health and Well-Being, 29 J. Pediatrics & Child Health 53, 53 (1993) (Supp. 1); Ann Sprengel & Jane Kelley, The Ethics of Caring: A Basis for Holistic Care, 10:3 J. HOLISTIC NURS. 231 (1992); Birgit Victor, Theoretical Discussion of A Model of Caring for Persons with HIV Infection, 7:4 SCAND. J. CARING SCI. 243 (1993).

465. Susan M. Wolf, Ethics Committees and Due Process: Nesting Rights in a Community of Caring, 50 Md. L. Rev. 798, 856 (1991).

466. Id. As Daniel Callahan notes, caring becomes more important "in an era increasingly dominated by chronic illness, where patients do not at once die, or necessarily show progressive decline, but where their disease becomes a permanent part of their life." CALLAHAN, supra note , at 67.

467. See supra note and accompanying text.

468. Taylor & Ferszt, supra note , at 33. Cf. Marcia Angell, The Doctor as Double Agent, 3 Kennedy Inst. Ethics J. 279, 279-80 (1993) (arguing that physicians are "no longer simply agents for their patients," but rather, "double agents, expected to decide whether the benefits of treatment to their patients are worth the costs to society . . . . To them, keeping an eye on the price tag means saving scarce resources for other, more important uses.").

469. Sherwin, supra note , at 93. Although Sherwin adopts a feminist perspective, the ethics of care is not necessarily feminist. See Ben Rich, Postmodern Medicine: Deconstructing the Hippocratic Oath 65 U. Colo. L. Rev. 77, 134 (1993) (describing an ethics of care "that is not driven by a social or political agenda of redressing centuries of discrimination against women or other identifiable disadvantaged groups").

470. See Peizer, supra note , at 143-45 (graphically contrasting the experience of childbirth in the hospital, under the medical model, with the more nurturing experience of labor and delivery under midwifery). Peizer notes that in midwifery: The use of medications that dull the woman's senses and affect the fetus adversely is avoided. The woman is allowed to be up and about during labor . . . [and] may assume any position that is comfortable . . . . When the child is born, it is immediately placed in bodily contact with the mother, who is awake, alert, and ready to receive the infant. Episiotomy [a surgical incision to enlarge the opening to the birth canal] is not routine . . . . Id. at 145.

471. See generally Bledstein, supra note .

472. Id. at 80-81.

473. Id. at 34-35. Today, bee keepers, embalmers, lightning rod salesmen, septic tank cleaners, taxidermists, and tree surgeons, among others, require a license to practice. Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REV. 6, 6 (1976).

474. Bledstein, supra note , at 85-86.

475. See, e.g., Gellhorn, supra note ; Daniel B. Hogan, The Effectiveness of Licensing: History, Evidence, and Recommendations 7 L. & Hum. Behav. 117 (1983).

476. Gellhorn, supra note , at 11; Peizer, supra note , at 160 (suggesting that physician opposition to out-of-hospital birth for safety reasons "may be a thin disguise for more paramount economic concerns").

477. Gellhorn, supra note , at 12.

478. Id. at 12-13.

479. Gellhorn provides the example of Illinois' barber licensure, which tests an applicant's knowledge of anatomy, physiology, and even electricity and barber history. Id. at 12. Gellhorn also notes the concomitant restriction on geographic mobility, id. at 15-16, another consequence familiar to law practitioners.

480. See Elton Rayack, Medical Licensure: Social Costs and Social Benefits, 7 L. & Hum. Behav. 147, 148-49 (1983).

481. Id. at 150.

482. Hogan, supra note , at 121-22. Rayack cites an early call by physicians for "professional birth control" in order to protect "the economic welfare of the future practitioner." Rayack, supra note , at 150 (citing Letter, 101 JAMA 765 (1932) and Walter R. Bierring, The Family Doctor and the Changing Order, 102 JAMA 1995, 1997 (1934)).

483. See Hogan, supra note , at 122-26.

484. See id. at 126.

485. Gellhorn, supra note , at 16-17; Michael Pertschuck, Professional Licensure, 43 Conn. Med. 793, 793-94 (1993).

486. See Gellhorn, supra note , at 17-18.

487. Rayack, supra note , at 151.

488. Id. Rayack observes that the AMA has similar power in the accreditation of hospitals. Id. at 151. While hospitals are accredited by the Joint Commission for the Accreditation of Health Care Organizations, state licensure generally requires candidates to complete internship and resident programs in AMA-approved hospitals. Id. The AMA has used the threat of disapproval as a "weapon" in battles against prepaid group health insurance programs. Id. Rayack notes: Organized medicine's opposition to such plans has been primarily economically motivated, since physicians feared a loss of patients to the plans. Even more important, under prepaid plans physicians lack the control over their incomes that is possible under a fee-for-service system. Id.

489. Lori B. Andrews, Deregulating Doctoring: Do Medical Licensing Laws Meet Today's Health Care Needs 26 (1983). Cf. Nev. Rev. Stat. S 644.023(3) (1991) (defining "cosmetologist" as one who engages in the practice of "[a]rranging, dressing, curling, waving, cleansing, singeing, bleaching, tinting, coloring or straightening the hair . . . ."). A 1991 amendment added "massaging, stimulating" (as part of skin care) to the statutory definition, id. at S 644.023(6), presumably to distinguish cosmetology from massage. In states that license massage therapists, a cosmetologist who scrubs a client's face conceivably could be criminally prosecuted for the unauthorized practice of massage therapy. See, e.g., N.M. STAT. ANN. S 61-12C-4.A (Mitchie 1978) ("massage therapy" includes "body rub"); N.Y. EDUC. LAW S 7801 (McKinney 1985) ("stroking, kneading, tapping").

490. See, e.g., Charles H. Baron, Licensure of Health Care Professionals: The Consumer's Case for Abolition, 9 Am. J. L. & Med. 335, 335-36 (1983); Edwin A. Locke et al., The Case Against Medical Licensing, Medicolegal News, Oct. 1980, at 13, 13.

491. See, e.g., People v. Amber, 349 N.Y.S.2d 604, 611 (N.Y. Sup. Ct. 1973) (holding that the legal definition of "practicing medicine" embraces all healing arts, whether "known . . . or . . . not yet conjured").

492. See Rayack, supra note , at 152-54; see also Connecticut State Medical Soc'y v. Board of Examiners in Podiatry, 546 A.2d 830 (Conn. 1988) (litigation between podiatrists and orthopedic surgeons over whether treatment of the ankle was within the authorized scope of podiatric practice in Connecticut).

493. It was only in 1961 that the AMA's House of Delegates determined that "it would not be unethical for physicians to voluntarily associate with osteopaths." AMERICAN MEDICAL ASSOCIATION, PROCEEDINGS OF THE HOUSE OF DELEGATES 173-74 (1961). Some state licensing boards forbid osteopaths from using the designation, M.D. See, e.g., Eatough v. Albano, 673 F.2d 671, 678 (3d. Cir. 1982) (Weis, J., dissenting) (criticizing the state board's rule for "perpetuat[ing] a distinction between allopathic and osteopathic physicians which the enabling statute does not authorize and, indeed, was intended to eliminate"). Osteopaths receive essentially the same training as medical doctors, with additional training in osteopathic principles. Id. at 673 (majority opinion). Osteopathy "stresses a view of the human organism as a self-regulating and self-healing whole." Id. Osteopathy relies less heavily than medicine on surgery and drugs, and favors manipulation of the neuromusculoskeletal system to restore bodily systems to their naturally harmonious state. Id.

494. See Welch v. American Psychoanalytic Ass'n, No. 85 Civ. 1651 (JFK), 1986 WL 4537 (S.D.N.Y. April 4, 1986) (antitrust action alleging anticompetitive behavior resulting in exclusion of licensed psychologists from the recognized practice of psychoanalysis); Virginia Academy of Clinical Psychologists v. Blue Shield, 624 F.2d 476 (4th Cir. 1980) (antitrust