Smoking Even in Privately-Owned Homes Has Long Been Prohibited, Says Expert

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Right to smoke Myth Shattered by HUD’s National Smoking Ban

Under new orders by the Department of Housing and Urban Development [HUD], smokers nationwide will not be able to light up even in their own public housing units, nor anywhere near such buildings; a move estimated to save public agencies and taxpayers an estimated $153 million every year in costs related to health care due to secondhand smoke, as well as repairs and losses from preventable fires, according to the Centers for Disease Control and Prevention.

As the late Johnny Cochran might sum up HUD’s new policy – “if you don’t quit, we must evict!”

In any event, the new ban will reportedly affect more than 940,000 public housing units across the country.

Not surprisingly, smokers groups – this time even joined by Reason magazine – continue to insist that such bans are unconstitutional or otherwise illegal, and that there is some kind of right to smoke. For example, in a so far unsuccessful law suit against HUD’s new action, the complaint states that the policy violates “the fundamental right to engage in a legal activity in a private home,” an aspect of liberty protected by the Fifth and 14th amendments as well as the Fourth, and adds an alleged violation of the 10th amendment to the mix.

But in law suit after law suit, including many in which public interest law professor John Banzhaf participated, courts and other governmental bodies have held that there is no legal right to smoke, and that smoking may be banned even when it prevents inmates, people in treatment facilities who cannot leave their residences to smoke elsewhere, and tenants who are likewise effectively confined to their apartments, from indulging their nicotine habit or addiction.

Indeed, Banzhaf notes that he has helped persuade judges to issue court orders in many states prohibiting smoking even in privately-owned homes or other buildings; that smoking in privately-owned condo units has been prohibited if even minute amounts of smoke drift into adjoining units; that parents have lost custody of their children for smoking at home in their presence; that an ever growing number of jurisdictions ban smoking even outdoors; and that the right of employers, including governmental bodies, to fire or refuse to hire people for smoking off the job has never been successfully challenged.

Protecting children from tobacco smoke, even if it means banning smoking in apartments, condos, or private homes, is an important and rapidly growing movement, says Banzhaf, who helped persuade many states to ban smoking in homes of children undergoing divorces as well as those with foster children.

As the New York Times has reported, “at least 6,200 children die each year in the United States because of their parents’ smoking . . . More young children are killed by parental smoking than by all unintentional injuries combined,” and that parental smoking annually causes over five million serious ailments which add almost five billion dollars to the nation’s medical expense costs.

Clearly there is no such thing as a right to smoke, Banzhaf reminds us.

Indeed, in one such law suit, in which evidence was submitted and subject to cross examination under oath, the court found that each smoking worker cost its employer as much as $4,611 per year in 1981 dollars – almost $13,000/year in 2018 dollars – a more than sufficient reason to refuse to hire smokers, the court held.

Indeed, the figure might be much higher today because medical science has identified far more medical conditions and problems cause by primary smoking (i.e., to the smoker himself). Also, the now-clearly-established tendency of secondhand tobacco smoke to cause both heart attacks and various cancers in nonsmokers (e.g., family members of the smoking employee) was unknown in 1981.

While some smokers try to point to so-called “smokers’ rights laws,” the American Medical Association has pointed out that, because they are often poorly written and rarely enforced, and because there are simple ways to achieve a smoke-free workforce despite the statutes, these laws should not be a significant deterrent to an employer achieving a smoke-free work force.

Just because people wish to engage in an activity, and perhaps even have an addiction to that activity, does not create a legal right, argues Banzhaf. This is especially true when, according to the American Lung Association, that activity costs the U.S. economy over $332 billion in direct health care costs and lost productivity every year.

What makes approximately 15% of the adult population – and a much smaller percentage of the total U.S. population – think that they should have a legal right to engage in an activity which forces the great majority of Americans who do not smoke to pay much higher taxes and needlessly inflated health insurance premiums as a direct result, asks Banzhaf rhetorically.

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