Homeopathy and the Legal Question: An Historical Perspective

But medicine should come from an entirely different place in the social organism. Since the Greeks, it has always been identified with eros, or love. Plato and Aristotle both affirmed that the medical relationship was an “iatrification of philia”, or friendship. (Later, this was to be extended into Christian charity.) Love needs the condition of a complete freedom in order to unfold.  Power needs to be continually restrained.  And just as love is corrupted by power, so is freedom constricted by fear. It is only within the autonomous and self-regulated cultural/spiritual sphere that the baneful influence of power and fear can be counteracted by the medical equation of freedom and love. To attempt to heal the sick is not a privilege—-at least not a privilege the State can confer—-it is a responsibility that only the individual can enter into freely, or not at all.

There are those who puff themselves as being practical.

They forswear the theoretical, preferring action to ideation.  But they do this at their peril.  This age, like no other, calls for a conscious participation in social life, and the best part of this participation is cognitive. To do without thinking is to court disaster; to do with insight and knowledge is what is here called conscious participation. No one who respects the times in which we live will ever disparage an historical analysis, for history is how the West came to consciousness in the first place. The two are inextricably linked in thought. And, as I have attempted to chronicle above, albeit axiomatically, this history points inexorably to the elaboration of three separate areas of social interaction. Unless this fundamental characteristic of the modern social organism is fully acknowledged, compromise will be taken for victory, equivocation for truth.

The tripartite social organism has developed quite naturally out of the depths of historical evolution; and, in order to safeguard their separate autonomy, it is impossible to exaggerate the distinguishing features of each of the three spheres. In the cultural/spiritual sphere, for instance, the chief feature is liberal pluralism. In religion, this manifests today as a medley of paths to the Spirit; in art, as a tutti-frutti miscellany of styles, tastes and -isms; and in science, just to name relativity, quantum physics and string theory is to make the same point in terms of knowledge. Everywhere, a wonderful plurality of expression. The terms—-art, science and religion—-refer today to a multiplicity of activity. Sadly, in medicine, liberal pluralism is still not the case—-to heal the sick and disabled is restricted by law to a single modality (allopathy).  Medicine has thus become an unhealthy holdout against the general direction of social evolution. Unlike religion, art and science, medicine is still taken as a singular noun.

The concern of this essay has been the role that government should, or should not, play within the social organism as a whole and in medicine in particular.  I have taken the detour through history in order to both set the stage for the discussion and to illustrate the seriousness of the issues involved.  There is an increasing awareness among the disenfranchised and the public that medicine should finally become a plural noun. This awareness has been identified as the alternative, complementary, integrative and holistic medical movement (terms that only make sense now given the present allopathic medical monopoly). Various strategies have been broached, and some fairly tentative efforts have been made in the direction of the eventual ‘pluralization’ of medicine. Some have been undertaken with at least a tacit understanding of the evolutionary forces at work, while others have been more of a knee-jerk reaction to an unhealthy situation.  A quick survey yields the following:

1) Separate Licensure

It should be clear from the previous discussion that a separate license for any ‘alternative’ therapy—- homeopathic or otherwise—-only increases the web of entanglement between the political/rights sphere (government) and the cultural/spiritual sphere (medicine). If the concept of licensure is inappropriate, unjustified and deleterious in the case of a single license (allopathic), the situation cannot be made any better by adding yet another, and then another. I already made the case that the public is not served by this; nor, paradoxically, is the profession.  Medical licensing laws only serve to distort and impair healthy social relations. A prime example of this is the Byzantine nature of state agencies in general (and the DOE in particular). But adding insult to injury, the halls and chambers of state and federal buildings everywhere are simply crawling with the maneuvers and the outright manipulations of a veritable legion of lobbyists. Surely this cannot be the State’s intention but is only made so by dozens of competing ‘special interests’—-a concept that should have no place in a realm where rights-awareness should advance.

Every profession thinks of itself as the last word in healing. Certainly allopathic medicine believes this and has had this belief encoded into law for almost 100 years. But homeopathy, which began 200 years ago with the work of Samuel Hahnemann, also believes that it has the last word on the subject. That is its vanity. And just as allopathic medicine now claims the legal prerogative to impose its vanity on the public, so homeopathy would wish to do the same. As an exercise in social thinking, though, imagine the following: let’s say that homeopathy was able to somehow convince the State that it had a ‘compelling interest’ to license homeopathy. It would then be in a position—-vis-a-vis competing unlicensed alternatives—-similar to that enjoyed by allopathic medicine today.  Like allopathic medicine, it could lord it over the less legally fortunate. But, to continue the exercise, image that in say 30 or 40 years someone with a genius comparable to Hahnemann’s were to devise an equally significant medical system, neither allopathic nor homeopathic. Their contribution to the healing of humanity would immediately be considered felonious—-outside of state mandates—-and could then be attacked, this time from two sources: from allopathy and from homeopathy. So much for equity!

To repeat but once again: medical licensing laws are at odds with the social evolution of humanity. But perhaps the most egregious assault on this evolution comes not from the licensed allopathic profession. It comes from the licensed naturopathic profession. Given the full spectrum of disease possibilities, the parameters of allopathic medicine are fairly narrow. On the other hand, naturopathic medicine would claim to be nearly all things to all people. A licensed naturopathic practice would preclude at least half-a-dozen other therapies.  So much for pluralism!

2) Legal Umbrellas

The concept of a legal umbrella means that someone practices a non-licensed modality, say homeopathy, under a podiatry license or a psychology license or a chiropractic license. These kinds of practices are problematical, to say the least, as the modality in question (say homeopathy) usually lies far outside the ‘scope of practice’ of the license.  While it probably would not be construed as practicing medicine without a license, which is a criminal offense, I believe the legal consequences would still entail a ‘cease and desist’ order, as well as the likely loss of the license.

A more pervasive use of a legal umbrella occurs when a licensed allopath (MD) practices homeopathy in part or in whole. In addition to also lying outside the ‘scope of practice’ of their allopathic license, this constitutes a kind of institutionalized fraud. The public expects one thing, and is misled and given something else. It’s a double fraud—of the State and of the public. Only in states that have passed CAM legislation can this practice be legally sanctioned. But it still could be considered a public fraud in that the licensed allopathic practitioner may have little or no real training in homeopathy.

There are some situations where a legal umbrella works more ethically and up-front.  In Arizona, for instance, a ‘registered’ homeopath may work with an allopath who has obtained a special license. And nurse practitioners and physician assistants in almost every state enjoy similar privileges.  Leaving aside the second class status of these umbrellas, they completely ignore the social consequences of licensing laws already catalogued above.

3) Civil Disobedience

This refers to the vast majority of those practicing alternative therapies today, including homeopathy.  They exist somehow ‘under the radar’ as it were.  They don’t make claims, nor advertise their services in the mainstream. But this kind of civil disobedience is not what Thoreau had in mind when he wrote his famous essay of the same title—-an essay, by the way, that inspired Gandhi and that went a long way to overthrowing an empire. And, of course, Martin Luther King tapped into the same source in order to lead the civil rights movement of the 50’s and 60’s.  Thoreau had in mind this more visible, active civil disobedience, and not the hidden practices of most unlicensed prescribers today, which is a form of passive disobedience. The only way that civil disobedience could work successfully in this country would be if a sufficiently large and vocal population of licensed prescribers would willingly and quite publicly hand their licenses back to the State (in a deed reminiscent of the German, Martin Luther), and then continued to practice openly anyway. This would have a huge consciousness-raising impact. Again, this could only occur if there were a sufficient number of people in the licensed community who understood the philosophical, historical and moral issues at stake. Within the unlicensed community, the comparable numbers are lacking for such a tactic to have any significant impact. Hence, passive disobedience for now.

4) Health Freedom Movement

This title is a bit of a misnomer. The Health Freedom Movement, which began in Minnesota and now includes California and Rhode Island, is really an effort to de-criminalize the unlicensed practice of alternative therapies. In some cases, it establishes specific exemptions (Minn.), while in others (CA) it is much more carte blanche—-but in no case can it be considered a ‘freedom movement’. For one thing, there is the question of language. None of the unlicensed therapies under health freedom legislation can use the term “medicine”, nor take the designation “physician”, nor even purport to treat and to cure real diseases.  What homeopathy is then left with after its ‘medicine’ and its ‘treatment’ has been stripped away is anyone’s guess. Therapy under health freedom legislation becomes an ambiguous word game, a verbal sleight of hand.

The first act of any tyranny is the appropriation of language. Medical licensing laws, as I have suggested throughout this essay, are a kind of cultural tyranny. There are those within the movement, however, who are OK working within these language restrictions (although one can’t help wondering what Hahnemann would have thought of this), but they do so by admitting an untruthfulness into their practice. Homeopathy IS medicine. And the term, “physician”, which comes from a Greek word, physikos, meaning  nature-knowledge, designates someone who under-stands and works with natural methods. Shall this designation be reserved for the licensed allopath only?

Even the use of the term “freedom” in the title of the legislation is misleading. No less an authority than Abraham Lincoln has claimed that freedom is an all-or-nothing proposition in his famous ‘A Nation Divided’ speech.  You cannot claim that freedom applies to some (in this case, the unlicensed) and not to others (the licensed). Only if freedom is enjoyed equally by all—-allopaths and homeopaths alike—-is the term used accurately. Otherwise, a great liberty with language, tantamount to obfuscation, has been indulged.

No one should be working within the legislative/rights field who is motivated solely by self-interest. But this is exactly what motivated the movement for health freedom: the unlicensed wanted some piece of the pie, so the expedient became the terminus. This is understandable given that the proposition itself contained a contradiction. Is it reasonable to suppose that real freedom can be obtained in a sphere where regulations rule? A legislative effort on behalf of freedom is already a kind of capitulation to the ‘benevolence of the despot’.  At best, it is a capitulation to a power that can have no legitimate interest in the affairs of culture and spirit.

On the other hand, the so-called Health Freedom Movement has, in fact, de-criminalized the practice of alternative therapies in the states mentioned above, and that is no small achievement. Aside from being language-challenged, the unlicensed practitioner in those states can now practice openly, and without fear; and, obviously, this is a double boon in that more health care options are available to the public. For now, the benefits far out-weight the disadvantages. The Health Freedom Movement has introduced an element of chaos into the whole field of health care in this country, and that in itself may offer the hope that a whole new cosmos of health-care possibilities will be available to a wider public in the very near future.

5) Registration

Registration is a legal hybrid. Unlike Health Freedom, it says that the unlicensed must register with the state in order to continue to practice legally, yet no safeguards are provided to the public or to the practitioner; that is, they are denied a board of their peers, having instead only a state agency to answer to. This situation has all the disadvantages of licensure, none of the advantages. As there are no public or professional safeguards, it is unclear why the state would even want to bother to register a plethora of newer therapies in the first place —-except for sheer, dogged meddlesome-ness. As for the practitioners, it is unclear how they would be protected from prosecution. It is assumed that simply by hiding out in the labyrinth of a state bureaucracy, legal anonymity would be assured.

6) Constitutional Amendment

Dr. Benjamin Rush, a signer of the Declaration of Independence, was the first to recommend an amendment to the U. S. Constitution prohibiting the federal government from the establishment of a specific medical discipline. The idea of an amendment pertaining to health care is not at all preposterous. In fact, amendments of far less importance to rights and freedoms have been suggested in every decade since the 18th Century, and sometimes even ratified. Although medicine is regulated at the state level, such an amendment to the U. S. Constitution could send a message to all the states. When the First Amendment was ratified in 1791, there were states that had their own state-sponsored religions. That eventually changed, subsequent to the 14th Amendment, and the freedom of religion was established within each individual state constitution. While the idea—-freedom of medicine—-would work best at the state level, an amendment to the federal constitution protecting health freedom could act as an incentive to the states, similar to the First Amendment in respect to religion. Such an amendment could read: “Congress shall make no law respecting an establishment of medicine, or prohibiting the free exercise thereof”. Obviously, a federal initiative would not in any way preclude the simultaneous adoption of state amendments prohibiting the establishment of medicine, an idea that could grow regionally at first. The only drawback would be the state-by-state effort involved in making it a fully national priority.

Constitutional amendments are qualitatively different from statutory law. First, they supercede statutory law; second, they always deal with substantive constitutional issues; third, they are almost impossible to overturn; and, fourth, they usually describe fundamental rights and liberties while at the same time forbidding any governmental intrusion into these rights and liberties. Obviously, a constitutional amendment, either at the state or federal level, would be the bulls-eye approach to health freedom.

7) Judicial Challenge

States do not have rights. They do not have the right to regulate medicine. The concept of rights pertains to single individuals only. They are called “human rights” precisely for that reason. Furthermore, they are called “inalienable” in that they can never be given by the State; nor can they be taken away by the State. On the other hand, States have powers—-powers that are delegated to the State by the people and that are fully enumerated within their separate constitutions. In the federal constitution of the United States, for instance, all that is not an enumerated power is left to the (52) states to determine, or it is left entirely “to the people”. When the expression, ‘state’s rights’, is used today, it is only to differentiate the powers that states have from those possessed by the federal government. Nothing more can be meant by this expression. Only individual citizens have rights, which they may sometimes relinquish to the State, voluntarily or (tragically) involuntarily.

With few exceptions, case law has proved over and over again that state medical licensing laws have withstood a constitutional challenge to their legitimacy in federal district courts. (One very notable exception, already mentioned, was the huge wave of anti-monopolistic sentiment that swept through this country in the 1840’s.) Federal courts have consistently capitulated to what they call the ‘sovereignty of the state’. Regardless of the Ninth and Tenth Amendments, and regardless of the clear violation of due process and equal protection, courts have voted in favor of the state’s ‘right’ to regulate medicine, even though this term, ‘state’s rights’, is a counterfeit of the concept of human rights.

Because of this history, some people have taken a jaundiced view of any attempt to challenge once again state medical licensing laws at the level of a federal court (or even within the state legislature itself). They would despair of applying the direct approach. I am not very familiar with the previous attempts to overturn medical licensure, nor do I know how the arguments were typically framed. I do know that times change; that what was unripe once is not always so; and that today there are serious concerns being voiced inside and outside the medical establishment—-not the least of which are the escalating costs. And it is not hard to see the connection between the inflationary nature of medical care in this country and the monopoly of a single license. That case could easily be made. Pundits, taking advantage of the American proclivity to see no further than the dollar sign, usually point to funding issues as to a kind of sacred cow. But how medicine is funded is subsidiary to who provides the care in the first place. Therefore, I would couch the argument in more constitutional terms, trusting that, by now, the concepts of rights and freedoms have taken firmer hold of the American psyche. In this case, it is the right of the public to seek the care of their choice, and the subsequent freedom of the practitioner to meet those who are ill openly and honestly.

8) Certification

While I have been making the case, both conceptually and historically, for the de-regulation of medicine—-similar to what has already occurred in art, science and religion—-I acknowledge that those who are in need of medical care want and deserve to have full confidence in the treatment of their choice. Under the present licensure system, however, not only are they not given that choice, they are not really guaranteed that confidence. Witness the rash of malpractice litigation! Regardless of licensure, courts all-too-often end up determining competency as if by default. Just as the State is not in a position to judge art, science or religion, the State is likewise not in a position to judge, or to secure the merits of medicine, especially in a modern, pluralistic society. Therefore, simultaneous to de-regulation would be the self-regulation of the various professions of medicine from within themselves. Instead of the present licensure system, competence and expertise would be guaranteed by way of professional certification. Thus, a certified allopath, a certified homeopath, a certified naturopath, et cetera. Who better to qualify a multiplicity of practitioners then the individual professions themselves?

Board certification is not a foreign concept. Over and above licensure, the public has long accepted certification as an affirmation of confidence. Just as art, science and religion take care of their own without the burden of licensing laws, so would medicine through professional certification. (That organized religions do not always appear to certify their own—-witness a history of embezzlement and sexual abuse—-only proves an earlier point. That is, professions can only certify themselves and nothing else, but fraud and tort laws are there to protect the public from abuses lying outside the conduct pertaining to the specific professions.) If, on the other hand, John Q. Public wants to see an uncertified practitioner, that would be entirely up to him. Neither the State, nor the certifying professions, should have any interest in what Mr. Public decides to do for himself by way of health care. States are not formed to protect citizens from themselves. States, at least in the West, have been given absolutely no custodial function except as guardians of the “self-evident” and “inalienable rights” of “the People”. These include, among others, the right to sometimes make unwise, sometimes even dangerous decisions.

The difference between certification and licensure is crucial. The one is the free unfolding of mutual understanding, while the other is a political/legal arrangement. The former accurately affirms a level of competency, while the later, by restricting the whole, encourages dishonesty. Within the self-governing cultural/spiritual life (now including medicine), real relations may develop which respect human destiny issues, and that allow for the affirmation and maturation of individual conscience. Non-governmental certification stays within its proper sphere, while licensure is an unhealthy abdication of culture and conscience to the State. It is ironic that the word ‘license’ has this dual meaning (from the Latin) both of permission and of liberty. What kind of liberty is it, then, that must be made compulsory by law?

9) Active Resistance:

Let me be perfectly clear: I am not suggesting that active resistance, armed or otherwise, is a viable alternative to the present situation. I am thinking here of those who, for religious or philosophical reasons, have consciously taken a stand against some aspects of State-mandated medicine. They may be opposed to the transfusion of blood, or to the compulsory vaccination of children, or to the genetic manipulation of life, or to any number of other things. There are other, safer strategies in dealing with these issues (cataloged above), but I don’t think this approach can be totally ignored in any survey of the social/legal question. I am simply bringing this up so as to highlight the gravity of the problem: when faced with a situation that one finds intolerable to conscience, what is the best response?

One of the great fallacies of contemporary science is the connecting of all soul activity entirely to the nervous system. Certainly sensing and ideation are quite understandably connected to the nerve/sense system, but feelings and willing are not. As the nerve/sense system is the bearer of thinking, so the rhythmic/circulatory system forms the bodily basis for the life of feelings. One may articulate feelings cognitively, but their actual life is bound up with the rhythms established by the heart and lungs.  And the will, as the source of movement, is properly ascribed to the metabolic/limb system. Every time we will to do something, some activity in the world, and it is not just a thought, metabolic activity is accelerated. Not so with thinking and feeling. Or, at least, not to the same degree.

Human physical life—-as the bearer of thinking, feeling and willing—-is organized into nerve/sense system, rhythmic system and metabolic/limb system. Health is the harmonious working-together of these three quite different functions within the body. Disease, on the other hand, is the loss of a cohesive independence of these systems, and where what was appropriate to one becomes the source of infirmity in another.  Thus, the whole person suffers. Even before the actual clinical diagnosis can be made, illness must be viewed as the usurping of the whole by a part.

Today, human beings want to see mirrored in their social institutions a picture of their own tri-fold nature.  They no longer want the monolithic pictures of yesterday but desire something that is more in keeping with their present needs. The tri-fold social organism is such a picture. It is what has emerged from out of the darkness of the historical evolution of the last two to three hundred years.

That the human physical body is capable of being disordered functionally is indisputable. That the social organism—-that is, human communal life in its entirety—-can be likewise disordered by activities appropriate to one area usurping another, is a fact not sufficiently recognized today.  And just as there is no centralization in the individual organism—-where each of the psychophysical functions contributes equally to the whole—-so, too, in a healthy social organism, three quite distinct activities must be similarly organized. The crucial difference, though, is that in the tri-fold social organism, these separate members must be consciously elaborated.

The modern economic sphere, superficially called “capitalistic”, has gone a long way in propitiating the physical needs of a vast majority of people.  That there are still many without adequate food, shelter and clothing is deplorable, but the cause(s) for this usually lies outside the economy itself.  Admittedly, there are those who use their favored position within the economic circuit to their own advantage, but this is an unhealthy distortion of the economic sphere per se.  The raison d’etre of the economic sphere is the timely meeting of the physical needs of people, and it is a sad fact that it has yet to fully come into its own, just as it has yet to fully eliminate the extraneous—the profiteers—from its compass.

For the most part, the cultural/spiritual sphere has attained a relative autonomy within the social organism.  A glaring exception, of course, is medicine. Where freedom is the sine qua non of all cultural/spiritual activity, what rules in medicine is anything but freedom.  In a threefold sense, the archetypal definition of a medical licensing law would be a cultural abuse of law for economic gain.

The political/rights sphere, the middle sphere between cultural activity and the economy, is analogous to the rhythmical system in the human organism. It is an exact analog to the heart, which is the bearer of the life of feelings. In this case, it is the feelings stirred by a sensitivity to equity issues. This sensitivity, this rights- consciousness, is like a new bud on the tree of human social life, barely two to three hundred years old, and barely dealing yet with all the issues of race and gender!

Rights-awareness, as I have maintained throughout, is at the heart of the social organism. But this heart is being continually corrupted today by forces raying into it from two directions, from the economy and from culture, each incursion seeking to gain legal advantages over others. And just as heart disease is the number one cause of death in this country, so the heart of the social organism is threatened by illegitimate influences that have trespassed their own proper sphere. Rights-consciousness is being sacrificed when the economy and culture are allowed to intrude into this middle sphere. Similar to bodily life, this is the threefold definition of a disordered social life: the usurping of one social function by another. In medicine, this is called “the license”. Those who would want to appropriate the law but once again (this time, for homeopathy) would do well to consider the long-term social consequences. And to those who would hold that the status quo is implacable—-that we are forced to work within the present (decadent) system—-again, consider well: the entire cultural/spiritual life of humanity has, by now, become thoroughly ‘sclerotized’ by this very status quo.

About the author

Robert Stewart

Robert Stewart RSHom (NA) CCH

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