WASHINGTON, D.C. (December 21, 2019) – In a new ruling, a federal judge has held, in upholding a no-smoking policy in HUD-funded public housing, that there is no constitutional or other legal right to smoke, notes public interest law professor John Banzhaf, who says it’s nothing new.
The rule prohibits lit tobacco products in all living units, as well as in indoor common areas.
A tenant had argued that the regulation violated the First, Fourth, Fifth, and Tenth Amendments, and the Administrative Procedure Act, but the judge summarily dismissed all of this claims, citing many previous cases where bans on smoking had been upheld.
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Indeed, courts both here and abroad have held that smoking can be banned in prisons, in medical institutions where the patients are not physically able to go outside to have a smoke, on airplanes where passengers – for long periods of time – likewise cannot step outside and smoke, despite the freedom to travel protected by the Constitution, and in many other places and situations.
Ramifications of no legal right to smoke ruling
Court have held that smoking can even be banned in private apartments and condos if even small amounts of smoke drift into nearby apartments, and in private homes to protect children residing or even just visiting there. Indeed, some parents have even lost custody of their children for smoking in their presence in private dwellings.
Courts have also held that employers – including governmental bodies – are free to refuse to hire smokers, especially since a court found, in a case in which Banzhaf had participated, that a single smoking employee can cost his employer (and thus, indirectly, his co-workers) some $12,000.00 a year in extra costs.
Banzhaf says that there is no constitutional or other legal right to smoke, simply because many people do it and derive pleasure and satisfaction from doing it. If that’s all it took to create a right, he argues, there might have to be masturbation and no-masturbation sections, as well as nudist and non-nudist sections, in restaurants and workplaces.
With all of the restrictions on activities which result in outdoor air pollution, it would be bizarre for any court to hold that there is a right to pollute indoor air with a pollutant which is even more deadly, since the government has established that tobacco smoke pollution kills thousands of nonsmokers – including many children – each year, says Banzhaf.