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Action on Smoking and Health
A National Legal-Action Antismoking Organization Entirely Supported by Tax-Deductible Contributions
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A proposal to ban smoking by women who are pregnant got a boost when Arkansas Governor Mike Huckabee -- who just signed a law banning smoking in a car when children are present -- endorsed the concept, saying that it makes sense from a health point of view. He called for a study to determine whether such a legislative proposal -- designed to protect the health of the fetus and to reduce the huge costs of treating babies born prematurely and/or with birth defects caused by maternal smoking -- would be lawful.
But law professor John Banzhaf, who has successfully led a movement which has spread smoking bans outdoors, into private homes (in custody cases and where foster children live), into apartments (when neighbors complain), and into cars (when children are present), says expanding it into wombs would be constitutional.
"Since court after court has held that smoking is not a fundamental right like voting, and that smokers are not a protected class like African Americans or women, the government has wide leeway in fashioning a remedy for whatever it concludes is a problem requiring corrective legislation," says Banzhaf.
The law is clear, he says, that governments are free to ban one cause of a problem which not regulating another. For example, governments may ban talking on a hand-held cell phone while driving, even though using a hands-free phone or engaging in other activities may be as dangerous.
Thus, a state could ban smoking by pregnant women while not banning other activities potentially dangerous to her fetus such as excessive alcohol consumption, certain athletic activities, etc.
To the concerns -- often called the "slippery slope" argument -- that such a law would inevitably lead to restrictions on many other activities by pregnant women, Banzhaf notes that legislators can and do draw lines. The ban on TV advertising for cigarettes has not spread to other products, handguns -- but not shotguns -- are banned in certain situations, knives of one length but not another are often illegal, drinking is legal at age 21 but not at age 20, etc.
"The mere fact that legislators have banned the smoking of marijuana, but not the smoking of tobacco -- even though few would argue that marijuana smoking is substantially more dangerous than tobacco smoking
-- demonstrates the tremendous discretion legislators have in choosing to prohibit one activity but not another."
To those who argue that a ban on smoking by pregnant women would constitute an invasion of her constitutional right of privacy, Banzhaf notes that her so-called privacy rights are inextricably bound up with the right of the child not to be subjected to dangerous unnecessary health risks, if not death itself.
Also, he notes, there are many other situations in which governments impose restrictions on what many would regard as strictly private choices. These include wearing seat belts or motorcycles helmets, refraining from using many drugs, even by the terminally ill, the right to "death with dignity," etc.
Another argument against such laws is the suggestion that it would be unconstitutional to punish a behavior which in many smokers is caused by an addiction. But the U.S. Supreme Court has held that addiction to alcohol is not a defense to crimes involving public intoxication.
Moreover, says Banzhaf, women may be addicted to the drug nicotine,but never to the activity of smoking. Thus even women who are addicted could comply with a law banning smoking by administering nicotine to themselves with patches, gums, etc. "While no one suggests that pregnant women should ingest a drug like nicotine, it is obviously far safer for both themselves and for the fetus if they get their nicotine from a patch rather than through active smoking."
Finally, says Banzhaf, some have suggested that a woman's constitutional right to choose an abortion means that she has a right to inflict harm or risk to the fetus because that's less serious than killing it. But the Supreme Court has said that the right to an abortion exists only so that a woman can avoid the pain and problems of having a child. "Once a women has chosen to give birth rather than to abort, she has no constitutional right to endanger the fetus' health," argues Banzhaf.
"Reasonable people may disagree with Gov. Huckabee's view that a law banning smoking by pregnant women would be desirable or even feasible, but it seems reasonably clear that, if enacted, such a law would be constitutional and withstand any challenge in the courts," predicts Prof. Banzhaf.
LAW PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
2013 H Street, NW, Wash. DC 20006
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