Andrews v. Ballard

Decision Date09 July 1980
Docket NumberCiv. A. No. H-77-999.
Citation498 F. Supp. 1038
PartiesJack ANDREWS et al., Plaintiffs, v. L. G. BALLARD, D. O., et al., Defendants.
CourtU.S. District Court — Southern District of Texas

Michael A. Maness, Houston, Tex., for plaintiffs.

Bill Campbell, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM AND ORDER

McDONALD, District Judge.

INTRODUCTION

This is a challenge to the constitutionality of Articles 4510, 4510a, 4510b, and 4505(12) and (15) of the Texas Medical Practice Act, Tex.Rev.Civ.Stat.Ann. arts. 4495-4512, as applied to the practice of acupuncture, and Rules 386.01.12.001-.002 of the Texas State Board of Medical Examiners. Those articles and rules generally provide that only licensed physicians can practice acupuncture in the state of Texas.1 The plaintiffs are 46 residents of Harris County, Texas, who seek acupuncture treatment. They maintain that the constitutional right of privacy, protected by the Due Process Clause of the Fourteenth Amendment, encompasses the decision to obtain or reject medical treatment and that Articles 4510, 4510a, 4510b, and 4505(12) and (15) and Rules 386.01.12.001-.002 impermissibly deprive them of that right because they (a) virtually eliminate the practice of acupuncture in Texas and (b) are not necessary to serve the State's interest in protecting the health and safety of the patient.2 After trying this action from August 20, 1979, through August 27, 1979, the parties comprehensively briefed the issues. The Court has fully reviewed those briefs, the facts, and the law. For the reasons stated herein, it finds that the challenged articles and rules do not withstand constitutional scrutiny.

THE CHALLENGED ARTICLES AND RULES

Acupuncture is not explicitly mentioned in the Texas Medical Practice Act. Tex. Rev.Civ.Stat.Ann. arts. 4495-4512. It is, however, included within the Act's definition of the "practice of medicine." Tex. Rev.Civ.Stat.Ann. arts. 4510, 4510a;3 Thompson v. Texas State Board of Medical Examiners, 570 S.W.2d 123, 127 (Tex.Civ. App., Tyler 1978) (application for writ returned, no reversible error). Thus, the practice of acupuncture without a license is, under Article 4510b of the Act, a misdemeanor, punishable by a fine of not less than fifty and not more than five hundred dollars and imprisonment for not more than thirty days. Each day of unlicensed practice is punishable as a separate offense.4 In addition, licensed practitioners are prohibited from allowing others to use their licenses to practice acupuncture, Tex.Rev.Civ.Stat. Ann. art. 4505(12), and from "aiding or abetting, directly or indirectly," the practice of acupuncture by an unlicensed individual. Tex.Rev.Civ.Stat.Ann. art. 4505(15). Violation of either of these prohibitions is punishable by revocation of one's license to practice medicine.5

The Texas State Board of Medical Examiners is the agency charged with the primary responsibility for enforcing the Medical Practice Act. See Tex.Rev.Civ.Stat. Ann. art. 4495. Prior to 1974, the Board did not apply these articles of the Medical Practice Act, despite their seeming applicability, to the practice of acupuncture in Texas.6 In that year, however, according to the testimony of Dr. Max Butler, a member of the Texas State Board of Medical Examiners from 1974 through the present and currently the agency's President, the Board became concerned that the public was being exploited by individuals claiming to be acupuncturists. None of the Board's members, it should be noted, are experts on the theory or practice of acupuncture. After holding hearings at which a "fair number" of witnesses, none of whom were acupuncturists or experts on acupuncture, testified,7 the Board issued a policy statement on acupuncture. That statement, dated December 2, 1974,8 announced that acupuncture constituted the practice of medicine within the meaning of the Texas Medical Practice Act; that acupuncture was an "experimental procedure," the safety and effectiveness of which had not been established; that although "acupuncture practice by licensed physicians should not be absolutely prohibited, safeguards" were necessary to protect the public; that the practice of acupuncture by anyone who was not a licensed physician would constitute the unlicensed practice of medicine; and that any licensed physician delegating the authority to perform acupuncture to an unlicensed person would be subject to action against his license for unprofessional conduct and the lending of a license to practice medicine.9

As Texas law does not provide for the issuance of policy statements by the Board, the December 2, 1974, statement did not, it appears, have the force of law. According to the brief filed by the Attorney General of Texas in Thompson v. Texas State Board of Medical Examiners, supra, it "served only as a notice to practitioners of what the law was in regard to acupuncture and the intent of the Board to apply the statute literally in the area." Brief of Appellee, at 6 (emphasis in original).10 Any doubts about the Board's intent were soon eliminated. In October, 1975, the Board disciplined two physicians, Dr. Oliver H. Thompson and Dr. Raul Baptista Mascarenhas, for allowing unlicensed individuals to practice acupuncture under their supervision. Thompson v. Texas State Board of Medical Examiners, supra, at 126. Ordering cancellation of the physicians' licenses to practice medicine, it stayed execution of the order and placed the doctors on probation for a period of ten years. Id. at 127.

Doctors Thompson and Mascarenhas challenged this action by appealing in state court. They argued, among other things, that the December 2, 1974, policy statement "promulgated and considered by the Board was not an effective rule or regulation of the Board and was without force and effect." Thompson v. Texas State Board of Medical Examiners, supra at 126. On January 8, 1976, while that challenge was pending, the Board acted to correct this situation. Although it took no evidence and heard no testimony, it "formally reconsidered"11 its December 2, 1974, policy statement on acupuncture and, pursuant to Articles 4496 and 4509, Tex.Rev.Civ.Stat.Ann., reissued the statement as a set of formal rules having the force of law.12 Those rules, Rules 386.01.12.001-.002 of the Texas Board of Medical Examiners,13 still in effect, presently constitute the only explicit regulation of the practice of acupuncture in Texas.

On July 27, 1978, the Texas Court of Civil Appeals issued its decision in Thompson v. Texas State Board of Medical Examiners, supra. It rejected the doctors' attack on the Board's December 2, 1974, policy statement and upheld the Board's disciplinary action against Doctors Thompson and Mascarenhas. Its ruling made clear that the provisions of the Medical Practice Act, independent of and in addition to any policy statements or rules issued by the Board of Medical Examiners, prohibit nonphysicians from practicing acupuncture in the State of Texas. The court did not, however, fully discuss all of the doctors' contentions. One argument advanced by Doctors Thompson and Mascarenhas was that the Board's action violated "the right of patients to receive medical treatment of their choosing." Id. at 126. This argument was not addressed, although the court did say that "the State may not constitutionally proscribe acupuncture within its boundaries." Id. at 129. That may be because the plaintiffs in Thompson v. Texas State Board of Medical Examiners, supra, were doctors, not patients, or it may be because the court assumed that "the Board had not precluded any patient from receiving acupuncture treatment." Id. at 129. Whatever the proper explanation, the plaintiffs in the present case are patients, not doctors. They directly challenge the court's assumption. They maintain that the challenged articles and rules effectively eliminate the practice of acupuncture in Texas, thereby depriving them of their rights. That issue was not faced in Thompson v. Texas State Board of Medical Examiners, supra. Moreover, had it been, this Court would simply have to face it again. "The federal judiciary," it is firmly established, "is supreme in the exposition in the law of the Constitution." Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958).

ACUPUNCTURE THEORY AND PRACTICE

Before proceeding to the merits of this action, it may prove useful to review the theory and practice of acupuncture. Acupuncture, one branch of traditional Chinese medicine, has been practiced for 2,000 to 5,000 years. It consists of the insertion and manipulation of very fine needles at specific points on or near the surface of the skin.14 The needles, solid in construction, are usually one to three inches in length, although needles ranging from one-third of an inch to eight inches may be used.15 They are generally made of stainless steel, although other metals are often employed, and are sterilized before insertion. They may be used to affect the perception of pain (acupuncture analgesia) or to treat certain diseases or dysfunctions (acupuncture therapy).

The traditional Chinese explanation of how acupuncture works relies heavily on concepts unfamiliar to the Western scientific community.16 According to traditional Chinese theory, the basic energy or force of life, which flows through all living things, is called "Ch'i." When this force flows through the human body, it travels along twelve primary and two secondary channels or meridians. It is along these channels that the acupuncture points lie. Ch'i, traditional Chinese theory teaches, has two aspects to it: Yin, the negative aspect, and Yang, the positive aspect. The twelve primary channels through which Ch'i flows are divided accordingly into six Yin and six Yang channels and paired. For each Yin channel, there is a Yang channel.

Despite the reference to them as "negative" and "positive," as Yin and Yang are two aspects of the same force, one is...

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