Smoke-Free Womb

Remember Bob Mathis, the Arkansas legislator who wondered "whether it was 'constitutional' for a mother to smoke while pregnant"? John Banzhaf, executive director of Action on Smoking and Health, does not address the issue directly, but he is confident that it would be constitutional to prohibit pregnant women from smoking, as Mathis wants to do. An ASH press release informs us that "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….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."

Having examined the slope on which Mathis' proposed ban lies, Banzhaf pronounces it unslippery: "To the concerns… 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."

Maybe those clever legislators could give some line drawing lessons to Arkansas Gov. Mike Huckabee, who sounds ready to follow Mathis and Banzhaf into the womb:

"I haven't thought it through all together in terms of the legality of it," Huckabee said while meeting with reporters to announce a planned trip to Asia. "From a health standpoint, heck yeah, it makes sense."…

Huckabee said such a prohibition, if enacted, would probably have to cover other unhealthy activities such as drinking.

"There are a lot of things pregnant women shouldn't do. That's just one of them," Huckabee said. "The point is, if you're going to make that against the law you're probably going to have to extend it to all the other things that are equally unhealthy for the child."

Michael Siegel, one anti-smoking activist who is not joining Banzhaf's march into the uterus, has started a list of "other things": "drinking during pregnancy, unprotected sex during pregnancy, failure to take multi-vitamins with folate during pregnancy, changing cat litter during pregnancy, and eating too much salt while pregnant." He also notes that "the same argument used by ASH to defend this proposed law against the argument that it intrudes into the privacy rights of women could just as easily be used to outlaw abortion," which is a bit more hazardous to a fetus than Mom's cigarette habit.

[Thanks to Linda Stewart for the tip.]