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 identify those "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. The regulations 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 Board's action unreasonably interferes with Dr. Rogers' right to practice medicine by curtailing the exercise of his professional judgment to administer chelation therapy.

The record before us fails to evidence harmfulness as a reasonable basis for the Board's action in restricting use of this treatment... The Board's findings do not support a conclusion of quackery, and the State-imposed limitation on 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 or experimental 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 June 1991. In its House Bill Report, the House Committee stated:

The state medical disciplinary board has discriminated against physicians who 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. at 1825.

In concluding that commercial speech was entitled to First Amendment protection, the Court reasoned that:

As to the particular consumer's interest in the free flow of commercial information, 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, the allocation of our resources in large measure will be made through numerous private 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 indispensable to 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, we could 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: