In Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980),
the Court expounded on the right of privacy in dealing specifically
within the context of patients' rights to alternative medical
treatments. After reviewing the Supreme Court jurisprudence,
this court determined that two criteria must be met in order to
"decisions which will be recognized as among those that an
individual may make without unjustified government interference."
Id. at 1046. The court explained "first, they must
be personal decisions that must primarily involve one's self or
one's family. Second, they must be important decisions."
Id. (citations omitted). In deciding if health care decisions
among alternative medical therapies satisfied these criteria,
the court elaborated:
The decision to obtain or reject medical treatment, no less than
the decision to continue or
terminate pregnancy, meets both criteria. First, [such decisions]
are, to an extraordinary
degree, intrinsically personal. It is the individual making
the decision, and no one else,
who lives with the pain and the disease. It is the individual
making the decision, and no
one else, who must undergo or forego the treatment, and it is
the individual making the
decision, and no one else, who, if he or she survives, must live
with the results of that
decision. One's health is a uniquely personal possession. The
decision of how to treat
that possession is of no less personal nature.
Second, it is impossible to discuss the decision to obtain or
reject medical treatment
without realizing its importance. The decision can either produce
or eliminate physical
psychological, and emotional ruin. It can destroy one's economic
stability. It is, for
some, the difference between a life of pain and a life of pleasure.
It is, for others, the
difference between life and death. Id. at 1046-1047.
The Florida Supreme Court has specifically and unanimously upheld
chelation therapy as a valid exercise of a physician's right to
practice medicine. In State Board of Medical Examiners of
Florida v. Rogers, 387 So. 2nd 937 (Fla. 1980) aff'g.,
371 So. 2d 1037 (Fla. App. 1979), the Court held that the State
Board of Medical Examiners was without authority to deprive a
licensed physician's patients of the voluntary election to receive
chelation therapy, as the State had not shown the therapy to be
harmful. The fact that the therapy was not endorsed by
the majority of the medical profession was unpersuasive.
The Court observed:
Although the State has the power to regulate the practice of
Medicine for the benefit
of the public health and welfare, this power is not unrestricted.
imposed must be reasonably related to the public health and welfare
and must not
amount to an arbitrary or unreasonable interference with the
right to practice one's
profession which is a valuable property right protected by the
due process clause.
Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201
(1973); Dent v. West
Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623 (1889).
Under the particular facts of this case, we conclude that the
unreasonably interferes with Dr. Rogers' right to practice medicine
the exercise of his professional judgment to administer chelation
The record before us fails to evidence harmfulness as a reasonable
the Board's action in restricting use of this treatment... The
do not support a conclusion of quackery, and the State-imposed
the administration of chelation treatment has not been shown
by the evidence
to have a reasonable relationship to the protection of the health
and welfare of
the public. Id., at 939-40. See also, Clair v. Centre
Comm. Hosp., 317 Pa.
Super. 25, 463 A.2nd 1065 (1983); Vest v. Cobb, 76 S.E.
2d 885, 893 (W. Va.).
Some states are taking affirmative legislative steps to explicitly
safeguard and provide substantial
deference to the treating physician's clinical judgment where
patient harm is not an issue. In Alaska Code Annotated, Title
8, Chapter 64, Article 2, at Section 08.64.326, it expressly provides
in pertinent part:
The [Medical] board may not base a finding of professional incompetence
solely on the basis that a licensee's practice is unconventional
in the absence of demonstrably physical harm to a patient.
Both the House and the Senate of the State of Washington supported
a bill proposed by the House Committee on Health Care allowing
the use of non-traditional treatment. This bill became law in
In its House Bill Report, the House Committee stated:
The state medical disciplinary board has discriminated against
practice alternative health care, considered non-traditional
medicine. Many patients who receive no satisfaction with traditional medical
care have gotten relief from physicians who practice under other theories, including
holistic medicine. The Board should not discriminate unreasonably against these physicians
as long as no harm is being done. Their patients demand a freedom to
choose this health care
that they believe is best for them, and this freedom is adversely
affected by discrimination
and harassment from state disciplinary authorities (emphasis
added). HOUSE BILL REPORT, at 2 (1991).
Of note is that the Washington State Medical Association also
supported the enactment of this bill.
Similarly, North Carolina amended its medical practice act effective
in June 1993 to add the following language:
The Board shall not revoke the license of or deny a license to
a person solely because
of that person's practice of a therapy that is experimental,
non-traditional, or that
departs from acceptable and prevailing medical practices unless,
by competent evidence,
the Board can establish that the treatment has a safety risk
greater than the prevailing
treatment or that the treatment is generally not effective.
N.C. Gen. Stat. Section 90-14(a)(6).
In recent years, the trend in federal constitutional law is clearly
toward greater recognition that the
patient's right to a choice of treatment is a fundamental right
of privacy. Roe v. Wade, supra; Doe v. Bolton, supra;
Planned Parenthood v. Casey, supra; and Andrews v. Ballard, supra.
Considerable deference is accorded the patient's determination
of what course of treatment to pursue, and there is judicial concern
that decisions about personal health care be made by the patient
in consultation with his or her physician, free from state regulation.
The developments in both state and federal law recognize a "right
to be let alone;" i.e., that the final decision among alternative
medical treatments - or between treatment and no treatment - belongs
to the treated. See, Olmsted v. United States, 277 U.S.
438, 478 (1928).
First Amendment Protection of Commercial Speech
"[T]he best test of truth is the power of the thought to
get itself accepted in the competition of the market..."
Abrams v. United States, 250 U.S. 616, 630 (1919) (J.
Holmes dissenting). This oft-quoted maxim of First Amendment
jurisprudence provides some illumination on the genesis of the
First Amendment's application to commercial speech. As stated
later by the Supreme Court in the commercial context, "it
is the purpose of the First Amendment to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail..."
Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 388, 390 (1969);
89 S. Ct. 1794, 1806.
"Commercial speech" is defined as that which proposes
a commercial transaction. Bd. of Trustees of State
Univ. of N.Y. v. Fox, 109 S. Ct. 3028, 3031 (1989). Although
the question of whether Justice Holmes' "marketplace of ideas"
postulation on free speech extended to the commercial arena was
debated for some time, that question was "squarely before"
the Court in Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 760 (1976); 96 S. Ct. 1817,
1825. In concluding that commercial speech was entitled to protection
under the First Amendment, the Court began its analysis with a
review of several propositions that were already "settled
or beyond serious dispute." It was clear that paid advertisement
constituted protected speech. Likewise, speech was protected
even though it was carried in a form that was "sold"
for profit "and even though it may involve a solicitation
to purchase or otherwise pay or contribute money." Id.
In concluding that commercial speech was entitled to First Amendment
protection, the Court
As to the particular consumer's interest in the free flow of
that interest may be as keen, if not keener by far, than his
interest in the days most
urgent political debate.
So long as we preserve a predominantly free enterprise economy,
of our resources in large measure will be made through numerous
economic decisions. It is a matter of public interest that those
decisions, in the
aggregate, be intelligent and well informed. To this end, the
free flow of
commercial information is indispensable and if it is indispensable
to the proper
allocation of resources in a free enterprise system, it is also
the formation of intelligent opinions as to how that system ought
to be regulated
or altered. Therefore, even if the First Amendment were thought
to be primarily
an instrument to enlighten public decision making in a democracy,
not say that the free flow of information does not serve that
goal Id. at 1826-1827.
Subsequent decisions have affirmed these principles. See
Central Hudson Gas v. Public Service Com'n
of N.Y., 447 US 557, 100 S. Ct. 2343, 2349 (1980) ("commercial
expression not only serves the economic interest of the speaker,
but also assists consumers and furthers the societal interest
in the fullest possible dissemination of information"); Discovery
Network, Inc. v. City of Cincinnati, 946 F. 2d 464, 469 (6th
Cir. 1991), aff'd Cincinnati v. Discovery Network, Inc.,
113 S.Ct. 1505, 123 L.Ed. 2d 99 (1993) ("commercial advertising
is essential because it conveys information that permits each
person to decide which trades and economic decisions are best
for that person... As such, commercial speech also has a high
value to the society as well").
It is thus unequivocal that commercial speech is protected under
the First Amendment. This protection even applies when the speech
communicates only an incomplete version of the relevant facts.
"The First Amendment presumes that some accurate information
is better than no information at all." Bates v. State
Bar of Arizona, 433 US 350, 97 S. Ct. 2691, 2704 (1977).
No serious argument can be made that the practice of medicine
does not involve commerce, consumers, marketing and money. The
medical profession clearly involves numerous commercial transactions.
Commercial speech is likewise inherently intertwined in the doctor-patient
relationship. So long as such speech is not misleading, any state
regulation affecting such speech is subject to judicial scrutiny.
In Central Hudson Gas v. Public Service Com'n of N.Y.
(1980), 447 US 562, 564; 100 S. Ct. 2343, 2350, the Court held
that if a commercial speech communication "is neither misleading
nor related to unlawful activity," a government regulation
burdening such speech must satisfy the following test: