To our knowledge, this has not been tested in the courts and the interpretation would ultimately remain with the court. One avenue for Constitutional protection which allows one to actively engage in the practice of medicine in absence of any state authority to do so, is under Freedom of Religion protection if a practitioner can show that the use of herbs is an integral part of their religious doctrine. The level of protection may vary state to state depending upon the specifics of individual state freedom of religion acts. Such a decision was upheld in the state of Colorado in which an elderly herbal practitioner was denied the right to practice herbal medicine out of her business, which is under the jurisdiction of the state, but was allowed to continue to practice out of her home. Legality vs. Reality When engaged in litigation, it is often not whether one wins or loses, but rather, whether one survives the process.
Litigation is very costly, time-consuming, and can disrupt a person's life for many years.
America is the most litigious of all societies. Numerous courts have awarded plaintiffs large settlements based on situations that the plaintiff themselves were responsible for. Examples include a gentleman being awarded retribution from the tobacco industry after he developed lung cancer from smoking for forty years. The settlement was awarded because the bottle did not specifically state the liquid cleaner was not meant for human consumption. In litigation against health professionals, many physicians and nurses have had their licenses revoked for utilizing non-conventional therapies.