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Again and again we see lawmakers pass laws (generally in the context of abortion) that direct doctors to provide medically incorrect information or engage in acts which are medically unsound, or to not provide medical information beneficial to the patient.

How is this not engaging in the practice of medicine? Why are they not prosecuted for such behavior?

  • Perhaps it would be a good idea to start by finding a particular statute forbidding the unlicensed practice of medicine, read it to see what specific conduct is prohibited, and then explain how you believe lawmakers are engaging in that conduct. Note, too, that the practice of medicine is generally regulated by state law, so it doesn't constrain actions of the federal government. – Nate Eldredge Mar 3 '17 at 4:41
  • Moreover, even in the context of state law, the laws regulating medical information, etc, are created by the same legislatures that created the laws against unlicensed practice. Even if you did convince a court that the creation of the law was unlicensed practice, the court might well take the interpretation that by creating the new law, the legislature effectively repealed the unlicensed practice law to the extent that it forbade them from creating the new law. – Nate Eldredge Mar 3 '17 at 4:46
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Lawmakers have special rights, known as legislative immunity, which allows them to enact laws. Thus lawmakers are allowed to say what may legally be done by teachers, without being licensed to teach, and they can say what the law is, without being licensed to practice law, moreover they can say what doctors can do without being licensed to practice medicine, what spies can do without having a license to kill, and so on. Indeed, none of the above acts (of passing legislation) would be violations of "unlicensed practice" statutes, even without the concept of legislative immunity. For example, I can tell you about the legal concept of legislative immunity, without that act being "unlicensed practice of law". In general, anyone in the US can freely talk about a topic: what is forbidden is holding oneself out as an X, if one does not have an X license, for legally-restricted profession X. Finally, legislators do not provide any advice at all, instead, they say what the law is. As do appellate justices, in a different manner.

  • My problem is that while they aren't pretending to be an X they are compelling the actions of an X which reasonably should require the same license as would be required to actually X. It's understandable they make themselves immune to the law, though. The only other one on your list that is at all comparable is making law without being licensed to practice it. The others are more general, not trying to do the actions that need to be licensed. – Loren Pechtel Mar 3 '17 at 5:48

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