Are Abortions and Smoking Constitutional Rights?; Public Tobacco Use Is More Deeply Rooted in U.S. History and Traditions
Is Abortion A Constitutional Right?
WASHINGTON, D.C. (July 21, 2022) – Justice Samuel Alito, in his majority opinion for the Supreme Court striking down Roe v. Wade, announced the following test: if a right is not explicitly mentioned in the Constitution [“unenumerated”], it can exist only if it is “deeply rooted in this nation’s history and traditions and implicit in the concept of ordered liberty,” notes public interest law professor John Banzhaf.
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But if this is the legal test for any claimed unenumerated constitutional right, a much stronger argument can be made that smoking - not only in public places, but even in private homes and apartments where it is now sometimes banned - meets those criteria much more strongly than abortion, says Banzhaf, who started and then led the battle to ban smoking in many places, and who has faced and defeated such smoking-is-a-constitutional-right argument many times.
The history of abortions in the U.S., and of legal restrictions placed on the practice, appears mixed at best, with both pro-life and pro-choice supporters able to cite some snippets of history to back up their respective claims. Thus, if there is some evidence - but it's inconclusive - on both sides, it would seem that the right to an abortion was at least not DEEPLY rooted, he suggests.
But history is very clear that smoking, especially in public places such as taverns, was widely practiced and accepted without legal limits when the Constitution was first adopted, and also when the Fourteenth Amendment (making many of its protections also applicable to state laws) was adopted.
Indeed, up until Banzhaf and his law students got smoking restricted and then banned on commercial airline flights, the practice was freely permitted except in very limited situations, and then only to prevent fires or explosions.
Moreover, even organizations most strongly opposed to smoking - e.g., the American Cancer Society [ACS] and the American Heart Association [AHA] - argued that smokers had such a fundamental right to smoke that the practice should not be banned, even for a few hours at a time, on commercial airline flights, despite the recognized harm it was then known to cause to other passengers.
Indeed, says Banzhaf, this idea that there was a fundamental right to smoke - arguably the equivalent of being "implicit in concept of ordered liberty" - was so strongly held that the ACS refused to even ban smoking at the meetings of its own board of directors, even though this meant that at least one board member could never attend a meeting because of his severe allergic reactions to even the small amounts of tobacco smoke generated by other board members smoking during the meeting.
So it is not at all surprising that the tobacco industry and smokers' groups tried many times to oppose our eventually-successful efforts to ban smoking in workplaces and public places, and later also in private apartments and homes, by arguing that this would violate a constitutional right to smoke, recounts the law professor.
Right To Smoke
Even though a right to smoke was, of course, not mentioned in the Constitution, it could be found in the penumbras of other rights in the Constitution, the same place and argument used to find a constitutional right to an abortion in Roe, claimed those who opposed laws and governmental actions prohibiting smoking.
Needless to say, the courts uniformly rejected all such arguments, sometimes calling them ridiculous or worse, but pure legal reasoning might lead to the conclusion that such arguments for a constitutionally protected right to smoke are stronger and more persuasive than those made to support finding a right unenumerated in the Constitution to an abortion.
Indeed, even feminist Ruth Bader Ginsburg called Roe a faulty decision. As the Washington Post reported, "Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court."
Further evidence that abortion is hardly a fundamental right "implicit in the concept of ordered liberty" is that quintessential liberal Joe Biden, while a U.S. senator, and after taking a solemn oath to uphold and defend the Constitution, voted for a bill which "declares that the Constitution does not secure a right to abortion."
So anyone seeking to argue that having an abortion is constitutionally protected under the current test for an unenumerated right would have to explain why smoking is not, and why legislative bodies restricting smoking in virtually any place would have to at the very least provide a smoking section for those who smoke, including those who are addicted, suggests Banzhaf, perhaps somewhat tongue-in-cheek.
