1. See e.g. the descriptions of healing ministries of Catholic saints in Butler, Alban, Butler's Lives of the Saints (The Liturgical Press 2000)Google Scholar.

2. See e.g. Myss, Caroline M. & Shealy, C. Norman, The Creation of Health: Merging Traditional Medicine with Intuitive Diagnosis 72–76 (Three Rivers Press 1993)Google Scholar.

3. Janiger, Oscar & Goldberg, Philip, A Different Kind of Healing: Doctors Speak Candidly About Their Successes With Alternative Medicine 123, 128–132 (G.P. Putnam's Sons 1993)Google Scholar.

4. See generally Krieger, Dolores, Therapeutic Touch as Transpersonal Healing (Lantern Books 2002)Google Scholar.

5. See e.g. Weaver, D.F., Nurses' Views on the Meaning of Touch in Obstetrical Nursing Practice, 19 J. Obstet. Gynecol. Neonatal Nurs. 157 (1990)CrossRefGoogle ScholarPubMed; King, C.E., Healing Pathways Through Energy Work in the Perianesthesia Care Setting, 11 CRNA 180 (2000)Google ScholarPubMed; McSweeney, M., Midwifery and the Gift of Healing Touch, 15 Birth Gaz. 28 (1999)Google ScholarPubMed; Umbreit, A.W., Healing Touch: Applications in the Acute Care Setting, 11 AACN Clin. Issues 105 (2000)CrossRefGoogle ScholarPubMed; Villaire, M., Healing Touch Therapy Makes a Difference in Surgery Unit, 19 Crit. Care Nurse 104 (1999)Google ScholarPubMed; Wilkinson, D.S., Knox, P.L., Chatman, J.E., Johnson, T.L., Barbour, N., Myles, Y., & Reel, A., The Clinical Effectiveness of Healing Touch, 8 J. Alt. & Comp. Med. 33 (2002)CrossRefGoogle ScholarPubMed.

6. See e.g. Kennedy, P., Working With Survivors of Torture in Sarajevo With Reiki, 7 Comp. Ther. Nurs. Midwif. 4 (2001)CrossRefGoogle ScholarPubMed.

7. Alternative medical practices initially were defined as therapies not commonly used in U.S. hospitals or taught in U.S. medical schools. See Eisenberg, David M., Kessler, R.C., Foster, C., Norlock, F.E., Calkin, D.R., & Delbanco, T.L., Unconventional Medicine in the United States: Prevalence. Costs, and Patterns of Use, 328 N. Engl. J. Med. 246, 256 (1993)CrossRefGoogle ScholarPubMed. However, as these therapies gained greater footing in U.S. hospitals and in medical school curricula, and consumer use of such therapies dramatically expanded, “complementary and alternative medicine” (CAM) gained recognition as a consensus term for a broad range of therapies that historically had fallen outside of biomedicine. Cohen, Michael H., Future Medicine: Ethical Dilemmas. Regulatory Challenges, and Therapeutic Pathways to Healthcare and Healing in Human Transformation (U. Mich. Press 2003)Google Scholar.

The reasons for defining modalities as “CAM therapies” are not only scientific, but also “political, social, or conceptual.” Jonas, Wayne B., Policy, The Public, and Priorities in Alternative Medicine Research, 583 Ann. Am. Acad. Pol. & Soc. Sci. 29, 33 (2002)CrossRefGoogle Scholar. These include lack of a generally accepted explanatory model; the fact that the origin of the practice is outside of the dominant system (e.g. acupuncture); the amount of data or type of data is considered insufficient or otherwise inadequate (e.g. herbalism, megavitamin therapy); the use of the practice is marginalized in that it is not available within conventional hospitals (e.g. relaxation techniques); the teaching of the practice is marginalized in that it is not generally taught within medical, nursing, or graduate schools of the dominant institutions (e.g. nutritional therapy); the amount of research funding, infrastructure, and capacity for investigating the practice is low (e.g. cancer, chiropractic); the practice is not reimbursed by insurance companies and third-party payers; the practice is not readily used for feasibility, acceptability, or other reasons (e.g. clinical ecology, complex lifestyle programs); the practice is not regulated or licensed in most states (e.g. naturopathy); and an aspect of the therapy is marginalized though it is studied under other names or subdivisions (e.g. antineoplastons, shark cartilage). Id. at 33.

8. See e.g. Guorui, Jiao, Qigong Essentials for Health Promotion (Wayfarer Publications 2002)Google Scholar; Aung, Steven K.H., Medical Qi Gong (World Nat. Med. Found. 1996)Google Scholar.

9. See e.g. Jamison, J.R., Chiropractic's Functional Integration Into Conventional Health Care: Some Implications, 10 J. Manipulative Physiol. Ther. 5 (1987)Google ScholarPubMed.

10. See e.g. Rexilius, S.J., Mundt, C., Erickson, M. Megel, & Agrawal, S., Therapeutic Effects of Massage Therapy and Handling Touch on Caregivers of Patients Undergoing Autologous Hematopoietic Stem Cell Transplant, 29 Oncol. Nurs. Forum E35 (2002)CrossRefGoogle ScholarPubMed.

11. Alternative Medicine: Expanding Medical Horizons (A Report to the National Institutes of Health on Alternative Medical Systems and Practices in the United States) 136–137 (09 14-16, 1992) [hereinafter Chantilly Report]Google Scholar.

12. Id. at 134-142. While far from definitive, the report helped catalogue the nature and extent of the field of “alternative medicine.”

13. Id.

14. For some of the unresolved definitional conundrums, see infra n. 16.

15. See infra Parts 1 & 2; see Cohen, Michael H., A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing, 27 Ariz. St L. J. 79, 134–137 (1995)Google Scholar (discussing applicability of tort rules for fraudulent conduct by healers).

16. Despite attempts by numerous scholars—as further discussed in Part 1—to provide rigorous definitions for terms such as “religion,” “spirituality,” and “healing,” such definitions are subject to critique as ultimately ambiguous, overlapping, and/or circular. Notably, the United States Supreme Court has had difficulty defining religion—and has even “avoided attempting to define ‘religion’ and the ‘religious.’” Jefferson, Paul, Strengthening Motivational Analysis Under the Establishment Clause: Proposing a Burden-Shifting Standard, 35 Ind. L. Rev. 621, 644 (2002)Google Scholar. Further, definitions of religion seem to change according to the context—for example, the Free Exercise Clause and the Establishment Clause of the First Amendment seem to demand incongruent definitions, so as to “maximize individual liberty, protect individual religious conduct, and limit the constraints on government.” Id. Even the attempt to assess whether something is “religious,” according to whether the activity is associated with prevailing doctrines of a particular religion, is problematic, because religion is “essentially a personal experience and one may have individual beliefs outside the canon of a particular religion.” Id. at 645.

Indeed, not only does a monolithic interpretation seem impossible, but also, more generally, “[d]efining the term ‘religious,’ especially at the fringes of its meanings, is an almost Sisyphean task.” Id. at 644. Moreover, from a psychoanalytic perspective, some would argue religion is merely a “socially constructed and maintained system of internal objects,” and that moreover, such internal objects have “no material existence,” but rather, are “elaborated over time to meet the experience of practitioners.” Black, D.M., What Sort of a Thing is a Religion? A View From Object-Relations Theory, 74 Int. J. Psych-Anal. 613, 624 (1993)Google ScholarPubMed; see Paul, Joel R., Cultural Resistance to Global Governance, 22 Mich. J. Intl. L. 1, 24 (2000)Google Scholar (religious culture, like national culture, is an “artificial social construct”); West, Robin, Law, Rights, and Other Totemic Illusions: Legal Liberalism and Freud's Theory of the Rule of Law, 134 U. Pa. L. Rev. 817, 869 (1986)CrossRefGoogle Scholar (religion, conscience, and rule of law are social constructs). To denote religion as a “social construct” suggests perhaps that religious beliefs are erroneous, trivial, or at the least, beyond scientific proof and therefore not subject to serious debate. Personal Communication from Bonnie B. O'Connor (Nov. 20, 2002).

Further, even to denote a particular healing practice or set of health care practices as “religion” or “religious” may be imposing a Western, medical bias on particular modes of existence, since practitioners may experience themselves as simply “being” rather than subscribing to a particular, identifiable set of beliefs. Personal Communication from Bonnie B. O'Connor (Nov. 14, 2002). For example, while Hmong culture does not have a separate category for religion, a Hmong shaman is certainly recognized within the community as practicing a specialized knowledge of certain spiritual matters.

In many cultural frameworks one does not, or need not, identify as “religious” or “spiritual” in a way that is separate from one's cultural or ethnic identity, because the latter identity entails religious and/or spiritual worldviews, interpretations, actions. This is true even in those cultures whose languages may not have a world for “religion” or who do not consider religion a separate “department” of culture in the way so-called “Western” cultures do. Personal Communication from Bonnie B. O'Connor (Nov. 20, 2002).

All sorts of disciplines seem to have their own approach to the definition of religion, and such definitions generally reflect each discipline's particular disciplinary orientation, and that discipline's foundational assumptions. Id.

Despite the above caveats, and without attempting to craft definitive responses to the above conundrums, this article attempts to draw preliminary, working distinctions to help frame the way health care practices once considered “religious” or “spiritual” are penetrating mainstream clinical care; hence the title's emphasis on practices at the “borderland” of what historically has been considered, in many camps, “medicine” as opposed to “religion.” In so doing, the article in no way advocates particular practices or beliefs, but rather evaluates some legal, regulatory, and ethical conundrums arising out of the integration of beliefs and practices into contexts that generally are considered predominantly secular and mundane.

17. See e.g. Sered, Susan, Women of the Sacred Groves: Divine Priestesses of Okinawa (Oxford U. Press 1999)Google Scholar; Sered, Susan, Women as Ritual Experts: The Religious Lives of Elderly Jewish Women in Jerusalem (Oxford U. Press 1992)Google Scholar.

18. See e.g. John 9 (healing of the blind man); Jas 5: 14 (“Is any one of you sick? He should call the elders of the church to pray over him and anoint him with oil in the name of the Lord.”). (N.I. V.). For a list of healings in the New Testament, see <http://www.healinescripture.com.HealineRecord.shtml> (accessed Mar. 1, 2003).

19. Aldridge, David, Spirituality, Healing and Medicine: Return to the Silence 32–33 (Jessica Kingsley Publishers 2000)Google Scholar. Aldridge traces the historical rise of medicine and consequent decline of church authority over understandings of life, birth, death, and the body—a “rift in the ecology of ideas”—and the recent return, in holistic notions of health, “to the idea that body, mind and spirit are not separate.” Id. at 34.

20. Id. at 56 (quoting respectively, Doyle, D., Have We Looked Beyond the Physical and Psychosocial?, 7 J. Pain Symptom Mgt. 302, 303 (1992)Google ScholarPubMed; Lukoff, D., Provenzano, R., Lu, F. & Turner, R., Religious and Spiritual Case Reports on Medicine: A Systematic Analysis of Records from 1980 to 1996, 5 Alt. Therapies 65 (1999)Google ScholarPubMed; and King, M. & Dein, S., The Spiritual Variable in Psychiatric Research, 28 Psychol. Med. 1259 (1968))CrossRefGoogle Scholar.

21. Id. at 27 (quoting D. Doyle, supra n. 20, at 303).

22. Id. (quoting Emblen, J., Religion and Spirituality Defined According to Current Use in Nursing Literature, 8 J. Prof. Nursing 41, 43 (1992))Google ScholarPubMed.

23. Id. (quoting Lerner, Michael, Choices in Healing 115 (MIT Press 1994))Google Scholar.

24. Id. (quoting McSherry, W. & Draper, P., The Spiritual Dimension: Why the Absence Within the Nursing Curricula? 17 Nurse Educ. Today 413, 413 (1997))CrossRefGoogle ScholarPubMed.

25. Id. (quoting Joseph, M., The Effect of Strong Religious Beliefs on Coping With Stress, 14 Stress Med. 219, 220 (1998))3.0.CO;2-H>CrossRefGoogle Scholar. Aldridge draws the distinction this way:

Where spirituality is seen as subjective, religion is seen as being social and means subscribing to a set of doctrines that are institutionalized. Thus some people may be spiritual in that they have a sense of being related to the sacred but do not take part in any organized religion. Conversely, others may perform the expected rituals of religious observance but have no personal experience of the divine. Id. at 66.

26. See e.g. Benedikt, Heinrich E., Spirituality Versus Religion: Principles of Interreligious Understanding and Self Realization (Verlag Lotus Publications 1995)Google Scholar (available on-line at <http://www.heinriclischwabverlag.de>) (accessed Mar. 21, 2003) (proposing that many “get caught in nationalistic slogans or doctrines or religious creeds and dogmas which cause rather painful and violent disturbances and even warlike antagonisms in our already deeply shaken world,” but that it is only through “a spiritual understanding which goes to the root and source of religion itself, which is God, that we can discover the goal of our quest”).

27. Booth, Leo, When God Becomes a Drug: Breaking the Chains of Religious Addiction and Abuse 3, 20 (Jeremy P. Tarcher, Inc. 1991)Google Scholar. The author is a “recovering” Anglican priest and alcoholic who has recognized within himself an addictive propensity to use religion “to escape loneliness, low self-esteem, and fear of reality … [as a] drug.” Id. at 9. He has created programs to help individuals recover from religious addiction and abuse. He attributes spiritual abuse and addiction, among other things, to the “growing awareness of the spiritual emptiness felt by many people—the alienation and shame produced by the negative messages religion often gives,” and his model draws on the Alcoholics Anonymous system of healing. See id. at 23; see infra Part III(B).

28. Cohen, Cynthia B., Wheeler, Sondra E., Scott, David A. & the Anglican Working Group in Bioethics, Walking a Fine Line: Physician Inquiries into Patients' Religious and Spiritual Beliefs, 31 Hastings Ctr. Rpt. 29, 31–32 (2001)Google ScholarPubMed.

29. Again, the caveat is given that the article is drawing preliminary, working definitions for purposes of drawing useful distinctions that help analysis of legal rules and regulation. Some actually conflate religion and spirituality—for example, one dictionary defines spirituality as “sensitivity or attachment to religious values.” Merriam-Webster Dictionary <www.m-w.com/cgi-bin/dictionary> (accessed July 8, 2003).

30. Increasingly there is recognition that healing rituals may have powerful, therapeutic effects. See e.g. Roche, J., Creative Ritual in a Hospice, 75 Health Prog. 45 (1994)Google Scholar; Kaptchuk, Ted J., The Placebo Effect in Alternative Medicine: Can the Performance of a Healing Ritual Have Clinical Significance? 136 Ann. Int. Med. 817 (2002)CrossRefGoogle ScholarPubMed. On the other hand, exclusive reliance on rituals—to the exclusion of conventional care—can be destructive. See e.g. Pfeifer, S., Belief in Demons and Exorcism in Psychiatric Patients in Switzerland, 67 Br. J. Med. Psychol. 247 (1994)CrossRefGoogle ScholarPubMed (finding that although patients experienced rituals as positive, a negative outcome, such as psychotic decompensation, was associated with exclusion of medical treatment and coercive forms of exorcism). The destructive possibilities of over-reliance on spiritual, to the exclusion of medical, means of healing, is a sub-theme of this article; see infra Part 4(A)(1).

31. Koenig, Harold G., Foreword, in King, Dana E., Faith, Spirituality and Medicine: Toward the Making of the Healing Practitioner xiii (Haworth Pastoral Press 2000)Google Scholar.

32. Eliade, Mircea, Waiting for the Dawn, in Waiting for the Dawn: Mircea Eliade in Perspective 11,13 (Carrasco, David & Law, Jane Marie eds., U. Press Colo. 1991)Google Scholar.

33. Id. at 12.

34. The shaman travels through realms of consciousness to bring healing. Hamer, Michael, The Way of the Shaman 44 (HarperSanFrancisco 1990)Google Scholar. See infra Part IIIB).

35. Eliade, supra n. 32, at 15.

36. Id. at 15-16.

37. See e.g. Smith, Linda L., Called Into Healing: Reclaiming Our Judeo-Christian Legacy of Healing Touch (Healing Touch Spiritual Ministry Program 2000)Google Scholar.

38. See e.g. Sui, Choa Kok, Pranic Healing (Samuel Weiser 1990)Google Scholar. Kok Sui “does not believe that any special, inborn healing power is needed to perform paranormal cures …. All that one needs is the willingness to heal.” Id. at xv.

39. See Astin, John, Harkness, E. & Ernst, Edzard, The Efficacy of Distant Healing: A Systematic Review of Randomized Trials 132 Ann. Int. Med. 903 (2000)CrossRefGoogle ScholarPubMed (concluding that “[t]he methodologic limitations of several studies make it difficult to draw definitive conclusions about the efficacy of distant healing. However, given that approximately 57% of trials showed a positive treatment effect, the evidence thus far merits further study”); see Cohen, supra n. 7, (citing literature). All this could, however, clearly shift in either direction. See e.g. Healing, , Intention and Energy Medicine (Jonas, Wayne & Crawford, Cindy eds., Churchill Livingstone 2003)Google Scholar.

40. Eliade likely would insist that irrespective of the level of scientific evidence for a given therapy, one studying such a therapy should have an actual “encounter” with it, and thus have “passed beyond the stage of pure erudition—in other words, when, after having collected, described, and classified his documents, he has also made an effort to understand them on their own plane of reference” Mircea Eliade, A New Humanism, in supra n. 32, at 35, 38 (referring to study of religious phenomena by the historian of religion). Eliade adds: “Works of art, like ‘religious data,’ have a mode of being that is peculiar to themselves; they exist on their own plane of reference, in their particular universe. The fact that this universe is not the physical universe of immediate experience does not imply their nonreality.” Id. at 39.

41. United States v. Seeger, 380 U.S. 163, 166(1965).

42. Of course, arguments have been made that scientific inquiry can be faith-based, in the sense of assuming certain premises and dismissing worldviews incompatible with these assumptions. See e.g. Wolpe, Paul Root, The Maintenance of Professional Authority: Acupuncture and the American Physician, 32 Soc. Prob. 409 (06 1985)CrossRefGoogle Scholar. Thus, for example, when acupuncture came to the forefront of medical attention in the U.S. in the early 1970s, physicians and medical societies dismissed acupuncture principles as “‘Oriental hocus-pocus.’” Id. at 587-588 (quoting Ulett, George A., Acupuncture Treatments for Pain Relief, 245 JAMA 768, 769 (1981))CrossRefGoogle ScholarPubMed.

43. See e.g. Rubik, Beverly, Energy Medicine and the Unifying Concept of Information 1:1Alt. Ther. in Health & Med. 34, 37 (03 1995)Google Scholar. Similarly, the Samueli Institute is a nonprofit organization, with links to laboratories in academic research centers internationally, that is attempting to elucidate scientific explanations for mechanisms underlying healing phenomena, including those associated with healing. The Samueli Institute defines “healing” as: “those physical, mental and spiritual processes of recovery, repair and renewal that increase order, coherence and wholism in the individual, the group and the environment.” <www.siib.org/vision.asp> (accessed July 8, 2003).

44. See e.g. Talbot, Michael, The Holographic Universe (HarperCollins Pub. 1992)Google Scholar.

45. See e.g. Frohock, Fred M., Moving Lines and Variable Critieria: Differences/Connections Between Allopathic and Alternative Medicine, 583 Ann. Am. Acad. Pol. & Soc. Sci. 214 (2002)CrossRefGoogle Scholar (summarizing some of the relevant clinical trials and challenges posed by some current, explanatory propositions).

46. See generally Krieger, Delores, The Therapeutic Touch: How to Use Your Hands to Help or Heal (Prentice-Hall 1979)Google Scholar; Therapeutic Touch (Scheiber, Béla & Selby, Carla eds., Prometheus Books 2000)Google Scholar.

47. Krieger, supra n. 4; see infra Part C.

48. Kok Sui, supra n. 38, at xvii.

49. Id.

50. Cf. Eck, Diana L., A New Religious America (Harper SanFrancisco 2001)Google Scholar (exploring how Americans of all faiths and beliefs can engage with one another to shape a positive religious pluralism).

51. See generally Lübeck, Walter, Petter, Frank A. & Rand, William L., The Spirit of Reiki: The Complete Handbook of the Reiki System: From Tradition to the Present: Fundamental, Lines of Transmission, Original Writings, Mastery, Symbols, Treatments, Reiki as a Spiritual Path in Life, and Much More (Grimm, Christine M. trans., Lotus Press 2001)Google Scholar.

52. See e.g. Koenig, Harold G., McCullough, Michael E., & Larson, David B., Handbook of Religion and Health (Oxford U. Press 2001)CrossRefGoogle Scholar (citing studies); The Link Between Religion and Health: Psychoneuroimmunology and the Faith Factor (Koenig, Harold G. & Cohen, Harvey J. eds., Oxford U. Press 2002)CrossRefGoogle Scholar; Chamberlain, Theodore J. & Hall, Christopher A., Realized Religion: Research on the Relationship Between Religion and Health (Templeton Found. Press 2000)Google Scholar.

53. See e.g. Dossey, Larry, The Dark Side of Consciousness and the Therapeutic Relationship, 8 Alt. Ther. in Health & Med. 118 (2002)Google ScholarPubMed.

54. See e.g. Koenig, et al., supra n. 52.

55. See e.g. Sollod, Robert N., Integrating Spiritual Healing Approaches and Techniques into Psychotherapy, in Comprehensive Handbook of Psychotherapy Integration (Strieker, George & Gold, Jerold eds., Plenum Press 1993)Google Scholar.

56. One could also argue that professions such as osteopathy, which have become mainstream and comparable to the medical profession in status and legal authority, represent the gradual secularization of practices initially based in spiritual discoveries. See Cohen, Michael H., Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives 140, n. 67 (Johns Hopkins U. Press 1998)Google Scholar (noting shift from AMA policy of forbidding physician association with osteopaths, to judicial criticism of a state board rule that attempted to perpetuate a distinction between M.D.s and D.O.s); Kaptchuk, Ted J. & Eisenberg, David M., Varieties of Healing 2: A Taxonomy of Unconventional Healing Practices, 135 Ann. Int. Med. 196, 198 (2001)CrossRefGoogle ScholarPubMed (noting that osteopathy has “reconfigured itself and has become ‘conventional,’ in the sense of DO's having ‘equivalent status’ to M.D.s”). Ironically, the discoveries of Andrew Taylor Still, the founder of osteopathy, had roots, like those of Palmer, the founder of chiropractic, in magnetic healing.

57. See e.g. Santorelli, Saki, Heal Thy Self: Lessons on Mindfulness in Medicine (Bell Tower 1999)Google Scholar.

58. For example, a recent conference at the Pepperdine School of Law had a workshop on “mindfulness in mediation.” See <http://law.pepperdine.edu/straus/conferences/workshops.shtml#6> (accessed Mar. 2003). The program notes state that:

Mediators aspire to provide the most appropriate service to the parties, but face many barriers to fulfilling that aspiration. One major barrier is that they often have trouble concentrating and listening—to others and to themselves. They are distracted by a welter of thoughts, emotions, bodily sensations and habitual modes of reacting. Often these factors are beneath conscious awareness. Mindfulness—a systematic method of paying attention, deliberately, in the moment, without judgment—can help mediators gain awareness of their mental and emotional processes and their habitual reactions, ultimately enabling them to perform better and to get more satisfaction from their work. Similarly, a workshop on Mindfulness in the Law and ADR (Alternative Dispute Resolution) recently was presented at the Program on Negotiation in Harvard Law School. See <http://www.pon.harvard.edu/news/2002/riskinmindfulness.php3> (accessed July 8, 2003).

59. See e.g. Frew, David R., Management of Stress: Using TM at Work (Nelson-Hall 1977)Google Scholar; Kory, Robert B., The Transcendental Meditation Program for Business People (Am. Mgt. Assn. 1976)Google Scholar.

60. Aldridge, supra n. 19, at 94-95.

61. Id. at 95 (citing the work of Herbert Benson); see Benson, Herbert, The Relaxation Response, in Mind Body Medicine 233–257 (Goleman, Daniel & Gurin, J. eds., Consumer Reports Books 1993)Google Scholar.

62. The funding helped establish a Center for Natural Medicine and Prevention, with a proposed research agenda to include: “basic study of mechanisms of meditation on atherosclerotic CVD [(arterial vasomotion, cardiac autonomic tone, and psychosocial risk factors); a clinical trial of effects of meditation on carotid arteriosclerosis, CVD risk factors, physiological mechanisms, psychosocial risk factors, and quality of life in older Black women with CVD].” See <http://nccam.nih.gov/training/centers/descriptions.htm#4> (accessed July 8, 2003) and the website for the Center <www.mum.edu/CNMP> (accessed July 8, 2003).

63. See generally Pargament, Kenneth I., The Psychology of Religion and Coping: Theory, Research, and Practice (The Guilford Press 1997)Google Scholar (reviewing the literature on use of religion in coping with crisis); The Handbook of Religion and Mental Health (Koenig, Harold G. ed., Academic Press 1998)Google Scholar (examining the relationship between religion and stress, depression, anxiety, schizophrenia, and substance abuse); Religion and the Clinical Practice of Psychology (Shafranske, Edward P. ed., Am. Psychol. Assn. 1996)CrossRefGoogle Scholar.

64. One recent attempt involves using complexity theory to explain phenomena previously understood only through the lens of CAM disciplines. See e.g. Jianping, Zhu & Rose, Ken, Chinese Medicine and Complexity, 3 Clin. Acupuncture & Oriental Med. 77 (2002)CrossRefGoogle Scholar.

65. Theoretically, an atheist or agnostic could practice Therapeutic Touch, although this assertion would be debated by those who believe that to practice a technique such as Therapeutic Touch is to adopt a particular set of beliefs akin to those adopted by the “religious.” In a sense, this harks back to the earlier tautology (if it is not scientific, it is religious), and to the earlier argument as to what is “religious,” both of which may be essentially unsolvable. A similar problem arises when one tries to define Spirit or spirit—or what it means to be spirited, or to practice mind-body-spirit medicine; again, the definition might differ depending on who is invoking the definition (for example, a practitioner of Christian Science, a Navajo healer, a minister, a practitioner of Japanese acupuncture, a physician in the emergency room). The problem is compounded by the fact that some practices involve actual “laying on of hands” whereas others do not necessarily require contact with the physical body, and, according to proponents, can even be done from a distance (as in so-called “distant healing,” which relies, according to some theorists, on “non-local consciousness,” the notion that information and healing accessed through consciousness is not dependent on limitations of space and time). See infra n. 229 and accompanying text.

66. Much of the discussion also uses the words “spiritual healer” and “spiritual healing,” to denote healing practices by both religious and secular personnel.

67. Cohen, Michael H., Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution 72 (U. Mich. Press 2000)CrossRefGoogle Scholar.

68. Cohen, supra n. 7, at 129. This can be conceptualized as including at least three different, but somehow linked, kinds of phenomena: (1) potentially explainable transmissions of informational patterns between humans in the form of bio-electromagnetic energy; (2) transmissions of informational patterns that are physically, emotionally, and spiritually mediated between individuals in close proximity—for example, by laying on of hands—that presently cannot yet wholly be accounted for in material or physical terms; and (3) nonlocal phenomena such as distance healing that may or may not be phenomena of body, mind, or spirit (however one defines each of these concepts). Id. at 10. Recently, the Samueli Institute for Informational Biology sponsored a symposium which organized a list of working definitions and terms, ranging from “attention,” to “biofield,” to “nonlocality” in healing, to “healing” (“those physical, mental, social, and spiritual processes of recovery, repair, renewal, and transformation that increase wholeness, and often (though not invariably), order and coherence”), to “spirituality” (“feelings, thoughts, experiences, and behaviors that arise from a search for that which is generally considered sacred or holy”). Dossey, Larry, Samueli Conference on Definitions and Standards in Healing Research: Working Definitions and Terms, 9 Alternative Therapies A10–A12 (05/June 2003)Google ScholarPubMed.

69. A separate set of issues arises regarding the ethical implications of clinicians discussing religion with patients as part of medical diagnosis and treatment. These include, for example, questions regarding potential imposition of the provider's beliefs on the patient, potential coercion, violation of therapeutic boundaries, and management of intraprofessional boundaries. Koenig, supra n. 31, at xiii; see generally Harold Koenig, G., Spiritual in Patient Care: Why, How, When, and What (Templeton Found. Press 2002)Google Scholar. Asking patients questions about their spirituality, and taking their responses into account, is “not ‘alternative medicine,’“ King, supra n. 31, at 7, and thus differs from using energy healing as a diagnostic or therapeutic modality. Rather, assessing patients' religious beliefs and practices can help clinicians understand patient interpretation of disease and therapy. Id. at 49. On the other hand, praying with patients may overlap with energy healing practices, since conceptually, energy healing includes accessing nonphysical forces of healing to improve health or wholeness. See Cohen, supra n. 7, at 134-136.

70. Several tools and indices have been adopted to take a patient's “spiritual history,” either as part of a social history or in response to various events in the patient's medical life and/or the therapeutic relationship. See King, supra n. 31, at 56-62. See Cohen et al., at supra n. 28, at 34-37, (offering guidelines for professional inquiries by physicians regarding patients' spiritual beliefs). Yet, although such tools may be useful, it must be remembered that medicine “is not a form of religion, and physicians are not priests”; thus, counseling patients inappropriately or invasively concerning spiritual care “opens wide the door to coercion,” and physicians (and other health care providers) must “walk a fine line between the practice of medicine and the practice of religion and between sympathetic response to patients' spiritual needs and professional coercion.” Id. at 36-37.

71. See Eisenberg, David M., Cohen, Michael H., Hrbek, Andrea, Grayzel, Jonathan, van Rompay, Maria & Cooper, Richard A., Credentialing Complementary and Alternative Medical Providers, 137 Ann. Int. Med. 965, 968, 969 (2002)CrossRefGoogle ScholarPubMed.

72. See generally id. (suggesting importance of strong, national professional organizations for licensure).

73. The Chantilly Report catalogues a variety of modalities, their theory and practice, and their sponsoring, educational institutions. See Chantilly Report, supra n. 11, at 134-142.

74. The above-described training is offered by the High Touch Healing Arts Academy in Huntington Beach, Cal. (information available at <www.schools.naturalhealers.com/hiehtouch> <Spiritnetwork.com/hightouch/healing.html> (accessed July 29, 2003)).

75. The above-described training is offered by North Shore Hypnosis & Reiki, in East Northport, N.Y. (information available at <www.schools.naturalhealers.com/northshore> (accessed July 29, 2003)).

76. See e.g. Brennan, Barbara A., Hands of Light: A Guide to Healing Through the Human Energy Field 81–88 (Bantam Books 1988)Google Scholar.

77. Practitioners commonly offer these results from their treatment. See e.g. Healing Spirit Nursing Services <www.healingspiritnursing.com> (accessed July 29, 2003); Reiki Holistic Healing <www.portalsofspirit.com/ReikiHolisticHealing.htm> (accessed July 29, 2003).

78. Chantilly Report, supra n. 11, at 134. As noted, The Report uses the term “biofield therapeutics,” a term that has not been widely adopted. Interestingly, the Report classified biofield therapeutics as a “manual therapy,” while it puts prayer in another classification (i.e. as a “mind-body” therapy). The typical presence (or absence) of human touch appears to be the reason for these classifications, although the Report does observe that “mental healing, psychic healing, distance healing, nonlocal healing, and absent healing” are part of biofield therapeutics. Id. at 135.

79. See e.g. Brennan, supra n. 76, at 5.

80. Id. at 49-54.

81. Wytias, Charlotte A., Therapeutic Touch in Primary Care, 5 Nurse Practitioner Forum 91, 93 (06 1994)Google ScholarPubMed.

82. Id. at 93-94.

83. In Therapeutic Touch, this step is known as “directing and modulating energy.” Id. at 94.

84. See Aldridge, supra n. 19, at 16 (discussing how Larry Dossey has been “criticized by churchgoers for his support of psi phenomena,” and how an English bishop interested in laying-on-of-hands was criticized for importing “Eastern spirituality”).

85. NCCAM's “frontier medicine” research program is described in a Request for Applications entitled, Exploratory Program Grants for Frontier Medicine Research (2002) (available at <http://grantsl.nih.gov/grants/guide/rfa-files/RFA-AT-00-002.html> (accessed July 29, 2003)).

86. Id.

87. NCCAM further defines the program areas within “frontier medicine” as: Bioelectromagnetic Therapy (e.g. diagnostic and therapeutic application of electromagnetic (EM) fields including pulsed EM fields, magnetic fields, Direct Current (DC) fields, artificial light therapy, etc. Note: This category does not include the study of electromagnetic fields as risk factors for disease); Biofield (e.g. energy healing, etc. Note: This category involves systems that use “subtle energy” fields in and around the body for medical purposes. Examples include Therapeutic Touch, Reiki, Huna, laying-on-of-hands, external Qi-Gong, etc.); Homeopathy; or Therapeutic Prayer; Spiritual Healing; Distance Healing; or other examples of prayer and/or spirituality as direct clinical interventions. Id.

88. Id.

89. Aldridge, supra n. 19, at 42.

90. Id.

91. Cohen, supra n. 67, at 81.

92. Cf. Aldridge, supra n. 19, at 43 (defining healing as “the intentional influence of one or more persons upon a living system without using known physical means of intervention”) (quoting Benor, Daniel, Spiritual Healing in Clinical Practice, 87 Nurs. Times 9 (1991))Google ScholarPubMed.

93. “The names of the energies change—life force, universal innate intelligence, psychic, parapsychological, psi astral, spiritual vital force—but they inevitably elude scientific detection.” Kaptchuk & Eisenberg, supra n. 56, at 199. The authors offer a taxonomy that distinguishes such “New Age healing” from “mind-body medicine,” “religious healing” (use of “religion for salutary effects on … health”), “folk medicine practices,” “ethno-medicine,” and categories such as non-normative scientific enterprises, popular health reform, and professional or distinct medical systems.

94. See Kaptchuk, Ted J. & Eisenberg, David M., The Persuasive Appeal of Alternative Medicine, 129 Ann. Int. Med. 1061 (1998)CrossRefGoogle ScholarPubMed.

95. See Kaptchuk, supra n. 30, at 821-822 (suggesting that “the question of enhanced placebo effects raises complex ethical questions concerning what is ‘legitimate’ healing, and what kinds of measurement embody cultural judgment on what is ‘correct’ healing.”).

96. See e.g. Klotz, Myriam, Jewish Healing Services, 63 The Reconstructiorust: J. Contemporary Jewish Thought & Practice (Spring 1999)Google Scholar (available on-line at <http:/www.rrc.edu/journal/recon632/klotz.htm> (accessed July 29, 2003)); see generally O'Connor, Bonnie Blair, Healing Traditions: Alternative Medicine and the Health Professions (U. Perm. Press 1995)Google Scholar.

97. Cohen, supra n. 56, at 39.

98. Chantilly Report, supra n. 11, at xi-xiii.

99. Cohen, supra n. 56, at 24-26.

100. 197 U.S. 11, 26(1905).

101. Id. at 27.

102. See e.g. Rutherford v. United States, 438 F. Supp. 1287 (W.D. Okla. 1977), remanded, 582 F.2d 1234 (10th Cir. 1978), cert, denied, 449 U.S. 937 (1980), later proceeding, 806 F.2d 1455 (10th Cir. Okla. 1986); Cohen, supra n. 56, at 23-24.

103. Cohen, supra n. 56, at 25-26.

104. Id. at 22.

105. 117 P. 612 (Colo. 1911).

106. Cohen, supra n. 56, at 81-82 (citing cases).

107. See infra Part IV(A). (Medical Licensure).

108. Aldridge, supra n. 19, at 9.

109. See infra Part IV(A) (Medical Licensure).

110. Supra n. 108.

111. See Cohen, supra n. 56, at 15-23 (citing cases, and observing that “references to chiropractic and other modalities as ‘sorcery’ and ‘voodoo’ have continued to find their way into biomedical and legal discourse”). See infra Part IV(A). More recently, the increasing prevalence of CAM therapies also has resulted in calls for a more “pluralistic system of health-care deliver” that includes “spiritual, as well as physical, psychological and social” definitions of illness, health and healing. Aldridge, supra n. 19, at 10.

112. Aldridge, supra n. 19, at 30 (citing Leeuwen, E. van & Ksima, G., Philosophy of Medical Practice: A Discursive Approach, 18 Theoretical Med. 18, 19–22 (1997))Google ScholarPubMed.

113. See Cohen, supra n. 56, at 15-23.

114. At least in the arena of CAM therapies, acupuncturists and massage therapists are increasingly finding themselves subject to state licensure. See Eisenberg et al., supra n. 71, at 967, 969.

115. See infra Part IV(A)(1); see Blevins, Sue A., The Medical Monopoly: Protecting Consumers or Limiting Competition?, Policy Analysis No. 246 (Cato Instil. 1995)Google Scholar; Locke, Edwin A.et al., The Case against Medical Licensing, 8 Medicolegal News 13, 15 (10 1980)CrossRefGoogle ScholarPubMed.

116. Eisenberg et al., supra n. 71, at 971-972.

117. Id.

118. Id.

119. See Cohen, supra n. 56, at 35.

120. Indeed, it has been argued that since the Medicare Act allows Christian Science faith healers to receive Medicare benefits, the patient's visit to a Christian Science faith healer is “primarily … a medical one, not a religious one, or arguably both.” Greenberg, Lauren A., In God We Trust: Faith Healing Subject to Liability, 14 J. Contemp. Health L. & Policy 451, 469 (1998)Google ScholarPubMed. Greenberg argues that Christian Science faith healers therefore should be “held accountable under the medical licensing laws, be regulated under the provisions regarding health care providers, and be liable for medical malpractice for negligence.” Id. Alternatively, she argues, if such faith healers are to be exempt from licensing laws and other regulation, their patient visits should not be covered under Medicare.

121. 211 Cal. App. 3d 1346, 260 Cal. Rptr. 113 (1989).

122. See infra Part IV(A)(1).

123. Cohen, supra n. 56, at 22-23.

124. See the discussion infra, Part IV(A), of new state laws regulating non-licensed CAM providers.

125. See Schultz, Marjorie, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219 (1985)CrossRefGoogle Scholar; Cohen, supra n. 56, at 60-61.

126. See generally Karpman, Anna, Informed Consent: Does the First Amendment Protect a Patient's Right to Choose Alternative Treatment, 16 N.Y.L. Sch. J. Hum. Rights. 933 (2000)Google ScholarPubMed.

127. In the faith healing context involving a practitioner of Christian Science, an early case noted that the applicable standard would be the “standard of care, skill and knowledge of the ordinary Christian Scientist, insofar as he confined himself to those methods.” Spead v. Tomlinson, 59 A. 376, 378 (N.H. 1904).

128. Countering the trend toward increasing licensure of health care providers is a movement to reduce the bureaucracy, restrictiveness, and professional turf battles caused by licensure, by creating a new class of “unlicensed” CAM providers that are regulated largely by registration. See infra nns. 184-192 and accompanying text. By creating a large group of providers not subject to the more rigorous criteria for state licensure (as opposed to mere registration), such statutes may counteract a historical trend of using state licensing laws to maintain professional monopolies and exclude undesirable competitors. See Cohen, supra n. 56, at 15-23 (describing use of licensing laws to maintain economic control over professional health care services).

129. See Cohen, supra n. 7, at 72-78. In medicine, physicians:

hold a near monopoly on a sort of power that can make the difference between sickness and health to persons who have been made vulnerable by pain, uncertainty, grief, anxiety, or simply by their dependence on others for care …. Fidelity to patients requires that physicians use their power in ways that avoid inadvertent or deliberate coercion.

Cohen et al., supra n. 28, at 36.

While informed consent has been heralded as a limitation on the potential for physician abuse of power, misconduct can infuse more subtle dimensions of the therapeutic relationship, and arguably require vigilance beyond the sanction of legal and ethical rules. See generally Brody, Howard, The Healer's Power (Yale U. Press 1992)Google Scholar.

130. “Over the past decade clergy malfeasance has been discussed largely within a narrow sexual paradigm—the sexual exploitation of youth by pedophiles or of vulnerable females by male clerics.” Shupe, Anson, The Dynamics of Clergy Malfeasance, in Wolves Within the Fold: Religious Leadership and Abuses of Power 1, 2 (Shupe, Anson ed., Rutgers U. Press 1998)Google Scholar.

131. Id. at 1.

132. Id. at 1-2.

133. Id. at 3 (citing Simon, David R. & Eitzen, Stanley, Elite Deviance (Allyn & Bacon 1990)Google Scholar).

134. Id.

135. Id. at 4. Psychotherapists who violate sexual space with clients tend to have unmanageable levels of personal vulnerability, fear of intimacy, crises in personal relationships, feelings of failure, low self-esteem, poor impulse control, professional isolation, and depression. Cohen, supra n. 7, at 175-180 (citing Keith-Spiegel, Patricia & Koocher, Gerald P., Ethics in Psychology: Professional Standards and Cases 256 (Random House 1985))Google Scholar.

136. Shupe, supra n. 130, at 4.

137. Id. at 5.

138. Id.

139. Id. at 6.

140. Anson Shupe, Economic Fraud and Christian Leaders in the United States, in Shupe, Wolves, supra n. 130, at 49-64.

141. Id.

142. Shupe, Dynamics, supra n. 130, at 7.

143. Id.

144. Id. at 7.

145. Arterburn, Stephen & Felton, Jack, Toxic Faith: Experiencing Healing From Painful Spiritual Abuse 19 (WaterBrook Press 2001)Google Scholar. The authors, like Booth, agree that “[p]eople broken by various experiences, people from dysfunctional families, people with unrealistic expectations, and people out for their own gain or comfort seem especially prone to … abusive and manipulative and … addictive” involvement with spirituality. Id. The authors list four common characteristics of “religious addicts”: having had rigid parents, having a deep wound from a major disappointment, feeling low self-worth, and being a victim of abuse. Id. at 20. They include as forms and variations of toxic faith: compulsive religious activity, laziness, giving to get, self-obsession, extreme intolerance, and addiction to a religious high. Id. at 24-31. Ironically, they argue, “toxic faith” erects barriers between individuals and genuine spiritual growth. Id. at 20.

146. Id. The book's title, which refers to “Spiritual Abuse,” implies as much. Since autonomy is voluntarily relinquished, however, and not invaded, legal rules such as those governing informed disclosure arguably are inapplicable.

147. As suggested, it is not simply the attribution of physical illness to religious compliance (or lack thereof) that is abusive, but rather the control and manipulation of individuals' expectations, beliefs, and conduct, in order to achieve submission to the authority of individual human personalities or to the authority of designated organizations. The religious affiliation, thus, becomes a dangerous and destructive involvement that controls the subject's life, rather than enhancing welfare. See id.

148. See generally Peterson, Marilyn R., At Personal Risk: Boundary Violations in Professional-Client Relationships (W.W. Norton & Co. 1992)Google Scholar; cf. Williams, Martin H., Boundary Violations: Do Some Contended Standards of Care Fail to Encompass Commonplace Procedures of Humanistic, Behavioral and Eclectic Psychotherapies? 34 Psychoth. 238, 238 (1997)CrossRefGoogle Scholar (arguing that although

[h]ugging, dining with, self-disclosing to, or making house calls to patients are among behaviors which have been termed ‘boundary violations’ in psychotherapy … some of the activities in question are consistent with the ethical practice of humanistic and behavioral psychotherapies, as well as with eclectic approaches deriving from those schools.)

149. See e.g. The Ethical Principles of Psychologists and Code of Conduct (Am. Psychol. Assn. 1992) (available on-line at <http:/www.apa.org/ethics/code1992. html> and the 2002 Code of Conduct available on-line at <http://www.apa.org/ethics/code2002.html>. which went into effect on June 1, 2003 (both accessed Aug. 4, 2003). Indeed, these rules have now evolved to address issues of on-line (Web-based) counseling. Ethical rules from various professional organizations for counseling, that address the foregoing, are collected at New Therapist, The Ethics and law of online therapy, <http://www.newtherapist.com/ethicsonline.html> (accessed Aug. 4, 2003).

150. Cohen, supra n. 7, at 175-180.

151. Id.

152. Id.

153. Id. at chs. 5-6. The closest the American Psychological Association comes to defining abuse of authority as described in this article is Standard 1.15, Misuse of Psychologists' Influence, which states: “Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence.” Am. Psychol. Assn., Code 1992, supra n. 149.

154. See e.g. Gallo, Fred P., Energy Psychology: Explorations at the Interface of Energy. Cognition. Behavior, and Health (CRC Press 1999)Google Scholar.

155. Freud apparently initiated the debate about appropriate use of touch in mental health care, and raised “questions that still cannot be definitively answered: Where is the line that demarcates non-erotic touching from erotic contact or sexual intimacy?” See Cohen, supra n. 7, at 176 (quoting Keith-Spiegel, Patricia & Koocher, Gerald P., Ethics in Psychology: Professional Standards and Cases 253 (McGraw-Hill, Inc. 1985))Google Scholar.

156. See Cohen, supra n. 7, at 137-142 (citing sources).

157. Chantilly Report, supra n. 11, at ix.

158. This is what Krieger calls “centering.” See generally Krieger, supra n. 4.

159. Brennan, supra n. 76, at 185. According to Brennan, healing occurs through “harmonic induction”: As long as the healer's voltage is higher than the patient's, the healing energy flows from the healer to the patient; but if the healer is tired, weak, and unhealthy, the healer could pick up the patient's negativities, or, presumably, drain the patient. Id.

160. Cohen, Michael H., Toward a Bioethics of Compassion, 28 Ind. L.J. 667, 685 (1995)Google Scholar (citing Harner, Michael, The Way of the Shaman xvii–xix (Bantam Books 1990))Google Scholar. The health care professional in biomedicine, in contrast, typically helps individuals “by manipulating technological or institutional know-how,” though physicians, like other caregivers, may have a dual identity—professional and shaman. Id. at 685-686.

161. See Brennan, supra n. 76, at 153-156. See generally Bruyere, Roslyn L., Wheels of Light: A Study of the Chakras vol. I (Bon Productions 1991)Google Scholar; Schwartz, Jack, Human Energy Systems: A Way of Good Health (Penguin Books 1980)Google Scholar. Some would critique the assertion of such powers as exercises in “magical thinking,” a category of pathological delusion articulated in DSM-IV. Cf. Booth, supra n. 27, at 35-36 (describing the abuse of power by Jimmy Swaggart), though this also may reflect negative bias against religious proclivities. See Cohen, supra n. 7, at 295-296. Interestingly, some place “messages from God” in the category of delusional or pathological behavior, Booth, supra n. 27, at 45; yet, energy healers frequently rely on intuitive sources of information to locate sources of imbalance and attempt to bring healing. The controversy over the epistemological legitimacy of intuition and other such “spiritual gifts,” including “messages” from another source, is beyond the scope of this article, although it mirrors attempts to distinguish “faith and fanaticism, healthy religiosity and addiction.” Id. at 57. Notably, the conflict has been played out historically, perhaps most visibly in the Inquisition's trial of Joan of Arc. See Cohen, supra n. 67, at 76.

162. Theresa Krebs, Church Structures That Facilitate Pedophilia Among Roman Catholic Clergy, in Shupe, supra n. 130, at 15, 17. Although Krebs is discussing how institutional structures in the Roman Catholic Church facilitate sexual malfeasance, this paper extends a part of that analysis to spiritual healing in the secular arena.

163. In the religious context, “the local authority of individual clergy is an extension of a bureaucratic authority that legitimizes it.” Id. (citing Shupe, Anson, Opportunity Structures, Trusted Hierarchies, and Religious Deviance: A Conflict Theory Approach 19 (Paper presented at annual meeting of the Society for the Scientific Study of Religion, Raleigh, N.C. 1993))Google Scholar. When spiritual healing is presented in a secular context—such as the hospital—the local authority of the individual practitioner could be viewed as an extension of the profession as a whole (e.g. nursing) that sanctions the technique (e.g. Therapeutic Touch) and/or the institutional bureaucracy (e.g. hospital credentialing committee) that authorizes its use.

164. Again, the potential for the “dark side” presumably is analogous in the physician-patient relationship. See generally Brody, supra n. 129.

165. See e.g. Myss & Shealy, at 72-76. Powers may include “the ability to prophesy, see and hear at great distances, bend the flame of a candle at will, transmit his emotions to others, change the weather, and heal sickness.” Robert Kisala, The AUM Spiritual Truth Church in Japan, in Shupe, supra n. 130, at 33, 36 (providing description of claims of the founder of AUM Shinrikyo). In the case of destructive religious groups, promises may be made that the client (or follower) will attain the psychic powers the leader already has attained by following the leader's training. Id.

166. Interestingly, in assessing why followers have joined destructive religious groups to the point of engaging in criminal activity, some have rejected theories based on claims of social tension and/or mind control. Id. at 34. Indeed, “techniques of psychological manipulation,” such as fasting, sleep deprivation, isolation, and image training, are “not unique to destructive religious groups and have been found useful in presumably healthy contexts,” such as meditation by mainline religious groups and training by athletes. Id. at 42. Instead, it has been argued, “ultimately the dynamics of religious faith, supported by elements” within a nation's indigenous religious and cultural heritage, motivate the criminal activity. Id. at 34. Thus, for example, AUM Shinrikyo was founded by an acupuncturist and masseur who was convicted of manufacturing and selling harmful and deceptive remedies for various ailments; “[I]n the wake of his conviction his business went bankrupt, and he apparently turned to religion.” Id. at 35.

167. It has been argued that both parties—healer and client—can share some responsibility in abusive situations that occur on a mass scale. See e.g. Dushkin v. Desai, 18 F. Supp. 2d 117 (D. Mass. 1998). In Dushkin, the court granted motions by defendant, a yoga teacher, spiritual healer, and leader of a spiritual community, to dismiss claims for intentional infliction of emotional distress, breach of fiduciary duty, and breach of contract.

168. In another sense, abuse of religious authority parallels abuse in other contexts—and similarly, it has been argued, “religious addiction” parallels addiction to mood-altering behaviors and substances. See e.g. Booth, supra n. 27, at 2. Religious addiction is defined as

using God, a religion, or a belief system as a means both to escape or avoid painful feelings and to seek self-esteem. It involves adopting a rigid belief system that specifies only one right way, which you feel you must force onto others by means of guilt, shame, fear, brain-washing, and elitism.

Id.

169. A contractual relationship between healing professional and patient also may be possible, triggering contract, rather than tort, obligations and potential liabilities. Contracting principles may be especially appropriate when healing practices rely on consensus and mutual responsibility. Cohen, supra n. 15, at 152 (citing Rian, Heidi, An Alternative Contractual Approach to Holistic Health Care, 44 Ohio St. L.J. 185, 187 (1983))Google Scholar.

There are limits, however, as to what rights courts will permit patients to contract away, and negligence principles may still apply if practices are below prevailing standards of care. Such cases further blur the borderland between contract and tort. See Cohen, Michael H., Reconstructing Breach of the Implied Covenant of Good Faith and Fair Dealing as a Tort, 73 Cal. L. Rev. 1291 (1985)CrossRefGoogle Scholar (proposing tort remedies, or at the least, expanded contractual remedies, for bad faith and unreasonable breaches involving denial of the existence of a contract, and other situations involving obstruction of the injured party's interest in securing the compensatory value of the agreement).

170. See Cohen, supra n. 56, at 29.

171. Id. at 15 (quoting Beck, T. Romeyn, A Sketch of the Legislative Provision of the Colony and State of New-York, Respecting the Practice of Physic and Surgery, N.Y. J. Med. 139 (1822))Google Scholar.

172. Id. at 22 (citing cases). The statutory definition of practicing medicine varies by state, but typically includes: (1) diagnosing, preventing, treating, and curing disease; (2) holding oneself out to the public as able to perform the above; (3) intending to receive a gift, fee, or compensation for the above; (4) attaching such titles as M.D. to one's name; (5) maintaining an office for reception, examination, and treatment; (6) performing surgery; and (7) using, administering, or prescribing “drugs” or medicinal preparations. Id. at 26-29 (citing cases). The third element, involving receipt of compensation for the healing service, is not a necessary element in all states. Id.

173. id. at 15.

174. Id. at 17, 34-35.

175. Id. at 17 (quoting Shryock, Richard H., Medical Licensing in America, 1650-1965 (Johns Hopkins Press 1967))Google Scholar.

176. Id. at 34-35 (citing sources). For a seminal critique of licensure, see Gelhorn, Walter, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6 (1976)CrossRefGoogle Scholar.

177. See Cohen, supra n. 7, at 86-87.

178. See Cohen, supra n. 56, at 35 (citing cases).

179. Id.

180. See Cohen, supra n. 15, at 117, n. 272 (citing cases); see discussion of People v. Smith, infra.

181. See Nobel, Barry, Religious Healing in the Courts: The Liberties and Liabilities of Patients, Parents, and Healers, 16 U. Puget Sound L. Rev. 599 (1993)Google ScholarPubMed; see D.C. Code § 3-1201.03 (2002) (exempting any

minister, priest, rabbi, officer, or agent of any religious body or any practitioner of any religious belief engaging in prayer or any other religious practice or nursing practiced solely in accordance with the religious tenets of any church for the purpose of fostering the physical, mental, or spiritual well-being of any person).

182. Greenberg, supra n. 120, at 457, (citing Crane v. Johnson, 242 U.S. 339 (1917)). Thus, a faith healer who also prescribed herbal medicine and applied a personally patented medication was held liable for practicing medicine unlawfully, since the healer arguably had exceeded the bounds of religious practice. Id. at 458 (citing People v. Vogelgesang, 221 N.Y. 290 (1917)).

183. Cohen, supra n. 67, at 78-79. Presumably, however, the Native American medicine man and Christian faith healer would retain the exemption, since they purport to practice within a religious tradition. Id.

184. See e.g. 2002 Cal. Stat. 820, enacting Cal. Bus. & Prof. Code §§ 2053.5, 2053.6 (also stating the purpose of the legislation). The legislation provides that a person is not in violation of specified provisions of the Medical Practice Act that prohibit the practice of medicine without being licensed as a physician, as long as the person does not engage in specified acts, and also makes specified disclosures to each client, for which the client must acknowledge receipt in writing.

185. R.I. Gen. Laws § 23-74-1(3). The statute provides that “unlicensed health care practices” do not include:

surgery, x-ray radiation, prescribing, administering, or dispensing legend drugs and controlled substances, practices that invade the human body by puncture of the skin, setting fractures, any practice included in the practice of dentistry, the manipulation or adjustment of articulations of joints, or the spine, also known as chiropractic medicine …, the healing art of acupuncture …, or practices that are permitted under [two other, specific statutes].

Id.

186. Id. at § 23-74-1(4)(d).

187. Id. at § 23-74-1(4).

188. See Cohen, supra n. 56, at 29-31 (citing cases, describing legal action against the non-licensed CAM provider), and id. at 47-55 (citing cases, describing legal action against the licensed CAM provider).

189. California's legislation allows prosecution if the provider:

(1) Conducts surgery or any other procedure on another person that punctures the skin or harmfully invades the body. (2) Administers or prescribes x-ray radiation to another person. (3) Prescribes or administers legend drugs or controlled substances to another person. (4) Recommends the discontinuance of legend drugs or controlled substances prescribed by an appropriately licensed practitioner. (5) Willfully diagnoses and treats a physical or mental condition of any person under circumstances or conditions that cause or create a risk of great bodily harm, serious physical or mental illness, or death.…(8) Holds out, states, indicates, advertises, or implies to a client or prospective client that he or she is a physician, a surgeon, or a physician and surgeon.

Cal. Bus. & Prof. Code § 2053.5(a) (2002) (available at <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=02001-03000&file=2050-2079> (accessed Aug. 4, 2003)).

190. R.I. Gen. Laws § 23-74-4(2). When therapies necessarily involve healing touch, such contact may be more ambiguous than the present statutory language allows. See Cohen supra n. 7, at 167-211.

191. Id. at § 23-74-4(6).

192. See supra n. 188.

193. Cohen, supra n. 56, at 39-40.

194. Id. at 40-44 (citing statutes).

195. Id. at 39.

196. Id. at 68-69 (citing cases).

197. Id. at 47-49 (citing Matter of Stockwell, 622 P.2d 910 (Wash. App. 1981); Foster v. Georgia Bd. of Chiropractic Examiners, 359 S.E.2d 877 (Ga. 1987)).

198. See id.

199. Again, the medical licensing statutes do not seem to make a distinction between the narrower notion of “curing,” and the broader realm of “healing” (the latter implying a restored psychosocial and spiritual wholeness).

200. A similar issue arises in trying to conceptualize distinctions between “structure-function” claims, which are permissible for dietary supplement labels under the Dietary Supplements Health Education Act of 1994, and “disease claims,” which are impermissible, and bring the supplement in question within the definition of a “drug.” See Cohen, supra n. 56, at 81 (citing sources); Cohen, supra n. 67, at 114-115. Structure-function claims describe the role of a nutrient or dietary ingredient intended to affect the structure and function in human beings (for example, “saw palmetto maintains prostate health”); whereas disease claims link the dietary supplement to the diagnosis, mitigation, cure, or treatment of a disease (for example, “saw palmetto cures prostate cancer”). Cohen, supra n. 67, at 114.

201. Cohen, supra n. 56, at 109-110.

202. Mass. Bd. of Registration in Nursing, Adv. Ruling No. 9801, Holistic Nursing Practice and Complementary Therapies, <http://www.state.ma.us\reg\boards\rn\advrul\rulcomp.htm> (accessed Aug. 6, 2003).

203. Cf. Ohio State Board Chiropractic Examiners v. Fulk, 617 N.E.2d 690 (Ohio App. 1992) (interpreting practice of chiropractic expansively—as permitting colonic irrigation even though not expressly authorized in the licensing statute).

204. Cohen, supra n. 56, at 87 (citing statutes).

205. One could consider the case of states such as California, Minnesota, and Rhode Island, as an exception; as noted, these states recently have enacted statutes allowing a broad range of CAM providers to offer services, without requiring them to obtain licensure, but requiring them to register with a state agency that can receive consumer complaints. See e.g. Minn. Stat. § 146A (2002). Conceptually, however, the distinction between “licensure” and simple “registration” of the unlicensed may be one of degree and not substance. See Cohen, supra n. 56, at 35-37 (discussing differences between mandatory licensure, permissive certification, and registration).

206. Alaska Stat. § 08.64.32(a)(8)(A) (2002).

207. Colo. Rev. Stat. § 12-36-117 (2002). Additional statutes are collected at Health Lobby, Health Freedom States <http://www.healthlobby.com/statelaw.html> (accessed Aug. 11, 2003).

208. See Cohen, supra n. 56, at 92-95 (discussing some differences among statutes).

209. New guidelines by the Federation of State Medical Boards concerning physician use of CAM therapies provide that in considering professional discipline, the medical board should evaluate whether the physician is using a treatment that is:

-effective and safe? (having adequate scientific evidence of efficacy and/or safety or greater safety than other established treatment models for the same condition)

-effective, but with some real or potential danger? (having evidence of efficacy, but also of adverse side effects)

-inadequately studied, but safe? (having insufficient evidence of clinical efficacy, but reasonable evidence to suggest relative safety)

-ineffective and dangerous? (proven to be ineffective or unsafe through controlled trials

or documented evidence or as measured by a risk/benefit assessment)

Federation of State Medical Boards, Model Guidelines for the Use of Complementary and Alternative Medical Therapies in Medical Practice, Section I. Preamble (04 2002)Google Scholar <www.fsmb.org> (accessed Aug. 11, 2003).

210. See Cohen, supra n. 67, at 23-26.

211. 660 N.Y.S.2d 665, 668 (N.Y. Sup. 1997).

212. Id. The decision was affirmed, but modified on appeal to vacate the punitive damages award, 673 N.Y.S.2d 685 (App Div. 1998).

213. See Cohen, supra n. 56, at 58-59, 62-62 (citing cases, and discussing the potential application of these defenses to useof CAM therapies).

214. Moore v. Baker, 1991 U.S. Dist. LEXIS 14712, at *11 (S.D. Ga., Sept. 5, 1991), aff'd, 989 F.2d 1129(11th Cir. 1993).

215. See Speiser, Stuart M.et al., The American Law of Torts, § 32.1, at 207 (1992)Google Scholar, cited in Cohen, supra n. 15, at 134.

216. A related question is how to assess spiritual groups and determine when healthy religiosity crosses the line and becomes religious addiction. Cf. Arterburn & Felton, supra n. 145, at 137-159 (listing the characteristics of a toxic-faith system, including a claim that its members have “special” character, abilities or knowledge; authoritarian leadership; oppositional status toward the world; a punitive nature; demands of members to give overwhelming service; lack of objective accountability; and use of labeling to discount those who oppose the beliefs of the group).

217. To some extent, all these forms of abuse overlap and intersect; they have been separated for clarification. Legal rules such as malpractice and professional discipline similarly overlap, in that an act of gross negligence, for example, can subject the perpetrator to potential malpractice liability as well as professional discipline, resulting in monetary payment to a civil plaintiff as well as loss of licensure to the state.

218. See Cohen, supra n. 67, at 62-64 (discussing credentialing mechanisms to ensure provider competence). Assuming the unlicensed provider, even if within the hospital, works closely with medical staff, the hospital arguably could help immunize itself from claims of aiding and abetting unlicensed medical practice. Thus, the location of the provider offering energy healing—i.e. living room, vs. community center, church basement, or hospital or clinic—could make a difference.

219. As noted earlier, though, nursing regulations in some states—such as Massachusetts— would authorize CAM practices in general, or even specific modalities such as Therapeutic Touch. Interestingly, the suggestion has been raised that distance healing (or non-local healing)—the application of energy healing through intentionality at a distance, as opposed to through touch and contact—might raise regulatory issues similar to the telemedicine and/or practice of law at a distance (i.e. via Internet). Personal Correspondence to Kathi Kemper (2002). From a regulatory perspective, however, the above discussion suggests that the issues raised by energy healing have less to do within physical distance and more to do with questions of competence, professional boundaries, and standard of care.

220. Cohen, supra n. 56, at 40.

221. This argument recapitulates arguments made by medical boards for therapies such as homeopathy, which similarly rely on theories historically outside biomedical convention and proof. See e.g. In re Guess, 393 S.E.2d 833 (N.C. 1990) (affirming conviction of a licensed physician for administering homeopathic remedies), cert, denied. Guess v. North Carolina Bd. Med. Examin., 498 U.S. 1047 (1991), later proceeding, Guess v. Bd., Med. Examin., 967 F.2d 998 (4th Cir. 1992).

222. See Cohen, Michael H. & Eisenberg, David M., Potential Physician Malpractice Liability Associated With Complementary and Integrative Medical Therapies, 136 Ann. Int. Med. 596 (2002)CrossRefGoogle ScholarPubMed. The article offers several liability management strategies for institutions offering CAM therapies or authorizing CAM providers to deliver clinical services. Additional suggestions for institutions may be found in Cohen, Michael H., Legal Issues in Alternative Medicine: A Guide for Clinicians, Hospitals and Patients (Trafford 2003)Google Scholar.

223. Cohen, supra n. 15, at 135-157.

224. Cohen, supra n. 56, at 112-113.

225. See Cohen, supra n. 15, at 134-157 (applying tort elements to specific scenarios involving CAM practices).

226. See Cohen, supra n. 56, at 110 (suggesting that legislative scope of practice for emerging providers challenges the drafter to be specific enough to cover areas of potential ambiguity, yet broad enough to support holistic practice).

227. See e.g. Guess, 393 S.E.2d at 833.

228. Yet another arena of sensitivity is how to approach patients who have suffered from religious abuse, as they “may react strongly to having chaplains, ministers, nuns,” Booth, supra n. 27, at 254—or, presumably, to medical personnel querying them as to whether they object to leceiving energy healing.

229. See Cohen, supra n. 7, at 55-57 (proposing to distinguish “spiritual” from “physical” notions of efficacy). One also could consider tie various levels of “efficacy” yet another way to understand the distinction articulated between healing and curing—sometimes a patient may be cured, without being healed, and sometimes the reverse may occur. From another vantage, Eliade describes the “effectiveness” of a medicinal plant as containing the “threefold effectiveness of the moon, the waters, and vegetation,” each of which works on multiple levels (vegetation, for instance, implying “notions of death and rebirth, of light and darkness … of fecundity and abundance, and so on”), Eliade, Sky, Moon, and Egg, in Eliade, supra n. 32, at 45, 55-56, whereas modern pharmacology would only consider the effectiveness of the medicinal plant in terms of the effect of its identified, active ingredient. Thus, from a mythological perspective, “[e]verything hangs together, everything is connected, and makes up a cosmic whole.” id. at 56; there is no differentiation of efficacy into separate, component parts. The drive to chronicle the world, and what happens in one's own soul, is, according to Eliade, a need organic to the human condition. Eliade, Literary Imagination and Religious Structure, in Eliade, supra n. 32, at 17, 21-22.

230. See e.g. NFSH, National Federation of Spiritual Healers Code of Conduct (Sunbury on Thames, NFSH).

231. King, supra n. 31, at 69 (referring to prayer and spiritual ministry).

232. The hypothetical comes from Cohen, supra n. 7, at 165. Admittedly, by using the word “God,” the hypothetical suggests religion, rather than the broader notion of spirituality as earlier defined; one could easily, however, substitute the notion of turning to one's innate wisdom, and the principle would be the same: “Depending on the manner in which this information (or opinion) was conveyed, it may have been helpful or hurtful, inspiring or intrusive.” Id.

233. Booth, supra n. 27, at 2 quoted supra, Part IJJ(A); see Jeanne M. Miller, The Moral Bankruptcy of Institutionalized Religion, in Shupe, supra n. 130, at 152-172 (describing experiences with sexual abuse and its later denial by church members and officials). As suggested, this is a variation on the definition of “abuse of authority” offered in Part 1(A).

234. See Arterbum & Felton, supra n. 145, at 39-42 & 49-50 (2001) (listing 21 typical “toxic beliefs” held by religious addicts, including, “If I have real faith, God will heal me or someone I know,” and “Problems in my life result from some particular sin”).

235. See e.g. Huffaker, M. Lee, Recovery for Infliction of Emotional Distress: A Comment on the Mental Anguish Accompanying Such a Claim in Alabama, 52 Ala. L. Rev. 1003 (2001)Google Scholar (citing cases).

236. Most likely, the healer would be held criminally liable for practicing “medicine” without a license—or, if a physician, would be held negligent and likely would receive professional discipline. In the arena of parental care for children, abuse and neglect laws likely would be triggered.

237. Cf. Aldridge, supra n. 19, at 13 (“I am not arguing for idealism but a transformation of consciousness, which will demand a compassionate acceptance of the material world as it relates to an understanding of the spiritual.”).

238. Karpman, supra n. 126, at 939 (citing sources).

239. See e.g. Radin, Dean, The Conscious Universe: The Scientific Truth of Psychic Phenomena 159 (HarperCollins 1997)Google Scholar (arguing that “the idea of field consciousness suggests a continuum of nonlocal intelligence, permeating space and time”); see Bohm, David, Wholeness and the Implicate Order (Routledge 1993)Google Scholar.

240. See generally Brennan, supra n. 76; Shealy & Myss, supra n. 2.

241. See Cohen, supra n. 67, at 166.

242. See generally Jonas & Crawford, supra n. 39.