But What About the Rights of Late-Term Fetuses To Smoke?

Nick Gillespie | May 3, 2007

Last year, the great state of Ohio--home to seven or eight past and future presidents, Doris Day, and more forgotten professional football teams (including the Bengals and Browns) than anywhere else--passed a smoking ban that has proven difficult to implement fully. First off, the state's health department took forever to actually getting around to coming up with a set of specific, enforceable rules. Second, a lawsuit challenged the popular law (a ballot initiative that passed with something on the order of 2/3 of Buckeyes pouring water on lighting up).

That lawsuit has been sent packing. The Cincinnati Enquirer reports:

A Hamilton County judge refused to block enforcement of Ohio's indoor smoking ban Wednesday, clearing the way for the law to take effect today.

Common Pleas Judge Fred Nelson refused to block enforcement of the law after concluding Ohioans do not have a constitutional right to smoke or to own businesses that permit smoking.

"There is no fundamental right ... to smoke in public," Nelson wrote in his decision. "This court declines to fabricate such a right."...

"The constitutions of the United States and the state of Ohio do not recite any 'right to smoke in public'; controlling precedent creates no such right; and other courts have held that there is no such right," Nelson wrote.

He also refuted the businesses' claim that the ban violates their right to use their property as they see fit. They had argued the case is similar to the recent eminent domain case in Norwood, where homeowners won in court after the city tried to take their property....

"A law may be thought ill-advised, paternalistic, and generally obnoxious, and still not be unconstitutional," Nelson wrote.

More here.

Comments

|5.3.07 @ 7:43AM|#

and more forgotten professional football teams (including the Bengals and Browns)

Joking on the Bengals just shows that you don't know shit about football. The Bengals are a very good team.

bruce|5.3.07 @ 7:55AM|#

"A law may be thought ill-advised, paternalistic, and generally obnoxious, and still not be unconstitutional," Nelson wrote.

I generally disagree with that. Such a law should violate substantive due process and the legislature has no business making them. Every law should have to pass "strict scrutiny" and should be PRESUMED unconstitutional (rather than the other way around).

Grotius|5.3.07 @ 8:06AM|#

"The constitutions of the United States and the state of Ohio do not recite any 'right to smoke in public';...

So if the Constitutions of either the U.S. or Ohio do not specifically protect a particular liberty or right that right or liberty is fair game for government regulation up to the point of outlaw?

Marc|5.3.07 @ 8:10AM|#

Did this Nelson dude ever read, like, the whole Constitution, or did he get tired somewhere around the 8th amendment?

|5.3.07 @ 8:11AM|#

There is no fundamental right ... to smoke in public to be free of smoke in a bar or restaurant," Nelson wrote in his decision. "This court declines to fabricate such a right

Fixed it.

|5.3.07 @ 8:11AM|#

The Oorang Indians ruled!

|5.3.07 @ 8:32AM|#

So if the Constitutions of either the U.S. or Ohio do not specifically protect a particular liberty or right that right or liberty is fair game for government regulation up to the point of outlaw?

Grotius,

Given the way they tend to ignore the rights actually included in the constition, that attitude should come as no surprise.

|5.3.07 @ 8:42AM|#

If majority rule is good enough for a state-wide vote, it should be good enough for a bar-wide vote too. Although the ultimate decision should rest with the owner, when you have 80% of patrons wanting one thing, and 20% not, it is total bullshit to side with the 20% that could just as well leave.

|5.3.07 @ 8:42AM|#

Late term fetuses have no rights, as they aren't human or viable yet.




let the games begin

|5.3.07 @ 8:46AM|#

Ohio is also home to Neil Armstrong, who is, after all, on Ohio's quarter.

Speaking of currency, I just got one of the new dollar coins. I like it! Who would've thought George Washington could possibly grace any new currency?

Chucklehead|5.3.07 @ 8:47AM|#

Given the way they tend to ignore the rights actually included in the constition, that attitude should come as no surprise.

So true. It seems like the vast majority of those sworn to uphold the constitution have no fucking clue as to the philosophy that brought it into being.

Nick Gillespie|5.3.07 @ 8:48AM|#

scottp,

As someone who spends half his time in the greater Cincinnati area (if such a thing exists), I am extremely well aware of the Who Dey gang's decade-plus-long climb from absolute suckitude to something resembling success (which in the end consists of one first-round playoff appearance since 1991). But until they start running the AFC North with regularity--and getting deeper into the playoffs--I reserve the right to mock them.

|5.3.07 @ 9:10AM|#

Nick,

Whatever you do, don't mention the NCAA.

Chris Monnier|5.3.07 @ 9:39AM|#

> The constitutions of the United States and the state of Ohio do not recite any 'right to smoke in public'...

Most people on this blog already know this, but it's worth citing the Ninth Amendment here, anyway:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

|5.3.07 @ 9:48AM|#

The great thing about the Bengals is that just about the time they get good enough on the field to rise above laughing stock, all of their players get arrested. Good job boys.

|5.3.07 @ 9:50AM|#

PL,

Did you say something?

VM|5.3.07 @ 9:52AM|#

ProGLib:

nothing to see here. Move along.

|5.3.07 @ 9:53AM|#

Timon19,

I mentioned it once, but I think I got away with it all right.

ed|5.3.07 @ 10:06AM|#

Joking on the Bengals just shows that you don't know shit about football. The Bengals are a very good team.

Just because you're good doesn't mean you can't be forgotten.
Take Henny Youngman, for instance.
Please.

|5.3.07 @ 10:25AM|#

You know, I went back to Ohio. But my city was gone.

|5.3.07 @ 10:37AM|#

Before becoming a judge, every dunce who passed the bar exam should be required to write the entire Constitution on a chalkboard 100 times. Bart Simpson would do a better job than most of these frauds.

|5.3.07 @ 11:02AM|#

I have a lot of questions about smoking that may never be answered because it seems just raising the idea is worse than denying Man-made Global Warming.

For instance, has anyone ever sat down and chain smoked so many cigarettes that they actually died of smoking, like one can die of drinking too much alcohol or water in a single setting? Is there even one reported case?

Are the later complications of smoking (lung cancer, emphyzema, cardiac diseases) as prevelent in persons who smoke far less than a pack a day? What are the statistics for one cig a day, one cig a week, or one cig a month smoking?

I am well aware that smoking is unhealty for myself and those around me (and I am working on quitting), but it seems that the anti-smoking crusaders would have us believe that anyone who merely had a particle of cigarette smoke waft up their nose once in their life is immediately doomed to lung cancer or cardiac arrest.

|5.3.07 @ 11:13AM|#

Zoomie,
When I recently saw an allergist to figure out where my asthma comes from, they asked if I smoked. I told them I smoked about 4 or 5 cigarettes a day on and off for about 6 years, sometimes a few more, sometimes a few less. They told me that doesn't count as being a smoker and should have had little to no noticable effects on my lung function. Anecdote anecdote

|5.3.07 @ 11:39AM|#

I like your allergist's definition of "smoker" better than my employers. Living with someone who smokes whether they are covered by the health plan or not disqualifies you from taking the non-smokers "discount".

|5.3.07 @ 12:30PM|#

Ninth amendment? Silly strict constructionist. The constitution is a living document and means whatever we want it to mean.

Besides, all rights come from government, don't you know?

|5.3.07 @ 1:14PM|#

For instance, has anyone ever sat down and chain smoked so many cigarettes that they actually died of smoking, like one can die of drinking too much alcohol or water in a single setting? Is there even one reported case?

Nicotine is a lethal drug, as is nearly everything else in the right doses (even oxygen). The LD50, the doses where 50% of average humans won't survive exposure, is around 50 mg. Someone who inhales each cigarette deeply gets around 1 mg per cigarette, with 3 mg being the extreme maximum. With a nicotine's half-life of 2 hours, you'd have to be taking smoking to a whole new level to get even close to the ld50. I'm sure there's someone, somewhere that killed themselves through nicotine poisoning, but it'd be quite a rare event.

Are the later complications of smoking (lung cancer, emphyzema, cardiac diseases) as prevelent in persons who smoke far less than a pack a day? What are the statistics for one cig a day, one cig a week, or one cig a month smoking?

Less exposure obviously reduces the risk of these conditions, although there is no safe level established. I'm unaware of any studies who's focus went on smokers with an average less than a pack a day (the average smoker goes through 20 cigs), but the data available from pipe and cigar smokers which do often distinguish between one bowl/day and five bowl/day suggests that the values drop a [i]huge[/i] amount for those who smoke less.

bill|5.3.07 @ 1:15PM|#

The air outside in Los Angeles is worse than many bars I've been in. They actually have alerts that tell people with lung problems to stay indoors. Maybe in a bar because they are smoke free?

|5.3.07 @ 2:05PM|#

bill, in LA no one can escape the SMUG!

gattsuru, thanks for the info, as I suspected it's possible, but one'd have to actually be attempting "suicide by cigarette" to actually die that way.

cgee|5.3.07 @ 4:13PM|#

It might be difficult, if not impossible to poison oneself with cigarettes. But there are easier ways to get a lethal dose of nicotine into the bloodstream, as portrayed by Christopher Buckley in "Thank You for Smoking," where Nick Naylor was kidnapped and a large number of transdermal nicotine patches were simultaneously attached to his body.

Guy Montag|5.3.07 @ 8:49PM|#

But What About the Rights of Late-Term Fetuses To Smoke?

That only counts for non-tobacco products.

|5.3.07 @ 10:57PM|#

Well, if we just want to kill ourselves with nicotine, you can do so fairly easily with nicotine gum (5 mg per piece) or nicotine patches (1 mg per patch per hour), or simply swallowing a cigarette butt (20-30 mg nicotine), but none of those really count as smoking yourself to death.