Privacy Issues: AR Ban on smoking during pregnancy?

By Jonathan On Jul 5, 2017

Rep. Bob Mathis, D-Hot Springs, told lawmakers Friday that children born to smokers face the risk of long-term health problems and questioned whether it was “constitutional” for a mother to smoke while pregnant.

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New wave of ‘fetal protectionism’ decried
Today’s topic: Legal rights

Jul. 10, 2006
By Rick Montgomery, MCCLATCHY NEWSPAPERS

In Arkansas, lawmakers are considering making it a crime for a pregnant woman to take a drag off a cigarette.

In Utah, a woman serves 18 months’ probation for child endangerment after refusing to undergo a Caesarean section to save her twins, one of whom died. In Wisconsin and South Dakota, authorities can haul pregnant women into custody for abusing alcohol or drugs.

And July 1 in Alabama, Brody’s Law took effect. It enables prosecutors to level two charges against anyone who attacks a pregnant woman and harms her fetus.

Common-sense measures to protect America’s most helpless citizens-to-be … or something else?

Abortion-rights groups see this revived wave of “fetal protectionism” as a set-up to make a fetus a person, entitled to constitutional rights, contrary to how the U.S. Supreme Court ruled in Roe vs. Wade.

But anti-abortion forces, plus some groups with no stake in the fetal-rights debate, say it’s a no-brainer that society do whatever it can to keep developing fetuses safe and healthy.

“It’s an economic issue and a public-health issue,” said state Rep. Bob Mathis, an Arkansas Democrat who touts a record backing abortion rights and recently floated the idea of a smoking ban during pregnancy.

A case in Wichita, Kan., last month underscored the intractable politics at work.

The killing of 14-year-old Chelsea Brooks, who was nine months pregnant, became a political controversy after her family learned that the state could not file homicide charges in the death of Alexa, the daughter Chelsea had been carrying. Three people, including her boyfriend, have been charged in Chelsea’s killing, which authorities say was a murder for hire.

Legislative inaction this year on a fetal-homicide bill kept Kansas from joining more than 30 states, including Kentucky, where murder laws include the unborn as legal victims.

The anti-abortion group Kansans For Life leaped onto the controversy, accusing Senate moderates and Gov. Kathleen Sebelius of “kowtowing” to abortion-rights forces by stalling a bill that might have given Chelsea’s family the justice it sought.

“Two lives were taken from us,” Chelsea’s mother said in a statement. “We will do whatever it takes to make sure that the law, in the future, recognizes all life.”

Critics of fetal-rights legislation see a slippery slope in the making. In some states, prosecutors have turned such laws against mothers whose behavior, typically methamphetamine or crack use, might have contributed to a stillbirth or to costly birth defects.

Taken further, could authorities charge pregnant women who miscarry after rejecting a doctor’s advice to take prenatal vitamins?

How about banning them from playing sports?

And why not punish alcoholic men whose addiction, studies show, could affect sperm and produce birth defects?

“What we’re seeing is a political trend in which the fetuses are coming first, and the rights of women … are coming last,” said Lynn M. Paltrow, executive director of the National Advocates for Pregnant Women.

“I think 30 years of anti-abortion rhetoric, ‘women killing their babies,’ has led to a moral vilification that doesn’t just stick to those who seek to terminate a pregnancy. It’s spreading to all pregnant women.”

In South Carolina, Regina McKnight is serving a 12-year prison sentence for killing her unborn child by smoking crack, as jurors saw it. They needed only 15 minutes to deliberate, and the U.S. Supreme Court let the verdict stand.

The Center for Reproductive Rights says six states passed fetal-homicide bills last year, but others have had them on the books for decades.

In California, fetal-homicide laws date to before the legalization of abortion. They were leveled against Scott Peterson, convicted in the well-publicized murder of his wife, Laci, and the son she was carrying.

Still, many courts have been uneasy about how far fetal rights can go.

Saying prosecutors overreached, a Texas appeals court last year unanimously threw out the convictions of two women charged under the state’s Prenatal Protection Act for “delivering” cocaine and methamphetamine to their babies through the umbilical cord.

“It makes sense that if a woman’s right to privacy encompasses decisions regarding procreation, such as contraception and abortion, it should also include decisions regarding health during pregnancy,” wrote Chicago lawyer Erin N. Linder in the September issue of University of Illinois Law Review.

Even Mathis, the Arkansas legislator, harbors doubts about the state’s ability to enforce an anti-smoking law.

“The more I think about it … you might end up with a fat lip” if police approach a smoker who is overweight but not pregnant, he said.

Adverse Drug Reactions Overview
Adverse drug reactions (ADRs) or events (ADEs) are defined by the World Health Organization as “a response to a drug that is noxious and unintended and occurs at doses normally used for man for prophylaxis, diagnosis, or therapy of disease, or for the modification of physiologic function.”
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Freud, Antismokers and the Removal of Children

June 30, 2006

Having been a perceptive psychologist there are times in this day and age of drier analysis when Freud still remains useful.

With regard to the antismoker movement Freud enables us to gain some invaluable insights into the condition of a group of people who for the most part are suffering from a profound neurosis if not a psychosis.

The reaction of the fervent antismoker to the smoker is one that Freud would have described as being typically neurotic, in that, confronted by the smoker, the antismoker will no longer consider or contemplate that person as a human being with many facets and a personality but simply as something vile to be avoided or eliminated without further regard.

Key to the personality of the antismoker is the reaction to the phallic symbolism imparted by a cigarette. Cigarette smoking, in addition to its erotic connotations, represents a supremely adult activity, namely, the ability and willingness to take a calculated personal risk for the sake of pleasure, life enhancement or reinforcement of the libido. Therefore, in vain will the antismokers manage to destroy the sexual connotations and allure connected with smoking, for these occur naturally and were not initially the product of the film industry although the latter probably highlighted these attributes and made them unambiguous in the mind of the public.

In terms of personality, many fervent antismokers come across as being repressed or essentially prissy and hence give the impression of lacking something. Freud would probably have considered them to suffer from a castration complex and thus, when confronted by the cigarette’s phallic and pleasurable significance, their angst is stimulated twice over: firstly by the strong phallic aspect of the cigarette and secondly, by their sense of personal inadequacy when confronted by immediate personal risk.

The fervent antismoker has more bad news in store for if we look at the evidence Freud would have unquestionably dubbed them as also being “anally retentive”.

Let us consider then the manner in which despite the frequent criticisms of and the real holes to be found in the arguments and evidence that purports to show that environmental tobacco smoke (ETS), in the quantities in which we normally experience it, is a deadly toxic substance, the antismoker movement just cannot let this idea go and subsequently can never enjoy the pleasure of relief and creativity.

Instead, this movement simply repeats time and time again the same flawed arguments and studies rather like a constipated person who, unable to obtain the necessary toiletry relief, nevertheless insists in pushing and pushing in the erroneous belief that he or she will produce a “genuine” faecal pellet. This breeds an intense frustration and stymies the eventual development of new and free flowing ideas.

The resulting frustration generates an even greater hate of the substance that the antismoker is fixated with.

The attack on tobacco smoke – both primary and secondary – should be seen as an obvious one. The antismoker hates and fears the phallic and risk taking significance of the cigarette and smoking and, by inevitable natural extension, those who use them. Therefore, not satisfied with the fact that smokers may pay painfully for their pleasure and satisfaction, the antismoker is driven to declare that the projected “offspring” of the cigarette – the secondary smoke – is a vile and dangerous offspring. By so doing the antismoker is able to diminish the potency of the phallus.

If you think I am joking I am not and now the picture becomes truly interesting.

Let us then consider that emphasis that has been placed by the antismokers on the diminution of potency and fertility caused by smoking. We know that after a period of very heavy smoking during the Second World War there was a baby boom. In addition, subsequent heavy smoking generations produced millions of children. Under the circumstances, if there is the risk of infertility caused by smoking it cannot be a very great one any more than can be the risk to the children of parents who smoke for we search in vain for all the damaged and dead babies and toddlers. Moreover, if we used irresponsible causal reasoning, as does the antismoker movement, then tobacco is a blessing for it has assisted us to be fertile. Consider the huge increases in population that took place in Europe since Sir Walter Raleigh first brought tobacco back from America.

Things become sinister however, when we further examine the current trend of the antismoker movement to advocate the removal of children from parents who smoke on the grounds that those parents are child abusers.

Such removal, to the anti mind, indicates the perfect proof of their position.: “see, we have taken your children away so you have no children for everyone knows that smokers are impotent and infertile.”

By the same token, they can point to the couple who don’t smoke and who, subsequently, are permitted to keep their children and say: “see these are fertile because they do not smoke”.

This is probably the pinnacle of satisfaction for the anally retentive antismokers for it enables them to reorder the world in line with their dreams: it is like the constipated person who manufactures turds out of papier mach? and who then asserts: “you see, I am not unnatural for I too am a creator!”

Such thinking would seem to go hand in glove with the idea that the antismoking movement can also play God for the inadequate always have great dreams. Furthermore, it has already been well noted that as time has gone by and the criticism of the antismoker penchant for exaggerating small levels of risk has become louder, they should make the ultimate claim that there are no safe levels of ETS.

This now elevates their claim to the status of a law of nature and formally presented the proposition has the nature of: For all A then B.

Whereas one may see how such a propositional format may be suited to the fact that all metals are good thermal conductors, where ETS is concerned it is difficult to see how such a tenet could hold as the elements contained in tobacco smoke are not unique to it but shared by many other substances. Hence, I contend confidently that if this claim were subjected to rigorous and honest hard-nosed scrutiny by physicists and chemists it would not pass muster as a newly discovered law of nature. Rather it is the case that what we have here is the supreme conceit of a strangely twisted movement that thinks it can play God – a role for which is creatively unsuited and at which it is failing miserably.

Blad Tolstoy.

Sue the bastards — I mean the mothers

Jun 21, 2006
Kathleen Parker

First they came for the workplace, then for people’s homes and cars, and then the great outdoors.

Now the anti-tobacco jihadists, having helped ban smoking in most public and many private places, have turned their attention to the most private space of all — the womb.

That very personal place where humans incubate could be the next battlefield between smokers and those who have never uttered the words: “It’s none of my beeswax.”

This latest brainstorm comes from Arkansas, where Rep. Bob Mathis successfully shepherded legislation making it unlawful to smoke in cars in which small children are passengers.

Apparently not satisfied with saving the recently born, Mathis wondered whether it would be constitutional to prohibit mothers from smoking while pregnant. Studies show, after all, that fetuses are at risk for low birth weight if their mothers smoke while pregnant.

No, wait, this just in: A new study in Australia shows that women who smoke while pregnant may cause their children to become obese. In a University of Queensland study published in the American Journal of Epidemiology, researchers found that smoking mothers’ children were 30 percent more likely to be overweight.

Underweight, overweight, oh-whatever. Both are bad, both involve tobacco, and that’s enough for John Banzhaf, the heavyweight George Washington University law professor who for years has led the anti-smoking brigade.

More recently, he’s best known for leading the charge against fast-food restaurants that serve fat-laden foods to unsuspecting, um, fat people — otherwise known as people who eat too much and wouldn’t read a nutritional label if it had a cherry on top.

Banzhaf likes to sue people, in other words, and he’s been enormously successful. Which is to say, pregnant smokers, beware.

Already Banzhaf is setting his sights on fetal rights related to their smoking mums. While it is legally defensible to abort a fetus up until moments before birth, it is apparently inconceivable that a woman would expose her unborn child to the harmful effects of smoking.

While you’re struggling to wrap your mind around that nonsensical nugget, Banzhaf is already issuing press releases. In a recent one from the organization he heads, Action on Smoking and Health, Banzhaf predicts that prohibiting smoking by pregnant women would pass constitutional muster.

“Since court after court has held that smoking is not a fundamental right like voting, and that smokers are not a protected class like African-Americans or women, the government has wide leeway in fashioning a remedy for whatever it concludes is a problem requiring corrective action.”

Now there’s a thought to warm a Taliban heart.

Certainly life offers enough problems to keep government regulators and litigators indefinitely occupied, but one has to ask: Are smoking mothers worthy of our censure? What about pregnant women who drink? Or who refuse to take their vitamins? Or who listen to hip-hop when studies show that Bach makes you smarter?

“Sorry lady, but you’re under arrest for dereliction of maternity duty.”

These are silly examples, of course, but no sillier than trying to legislate behavior that is, indeed, no one else’s business. We of a certain generation, meanwhile, recall fondly the sight of our mothers sipping martinis and smoking Salems while large with our soon-to-be sibling.

We should all be dead by now given the amount of secondhand smoke we inhaled. Not to mention the gin-drenched olives we slurped when backs were turned. As a bonus sidebar to these reminiscences, the term “bike helmet” was a non sequitur.

No one’s suggesting that pregnant women should smoke, or drink, or pole-dance — or whatever tempts the masses these days. But people have a right to be stupid, to make bad decisions, to marry the wrong guy, to eat the wrong foods and, alas, to elect the wrong people to public office.

Speaking of which, because of Arkansas’ term limits, Mathis won’t be able to pursue his idea of criminalizing pregnant smokers. And Arkansas Gov. Mike Huckabee, whom Banzhaf has credited with endorsing the concept of banning smoking while pregnant, says he has been misrepresented. When reporters asked what he thought about the idea, Huckabee said he hadn’t examined the legal aspects, but that from a health standpoint, “Heck, yeah, it makes sense.”

Clarifying that statement Tuesday, Huckabee told me he would prefer to let common sense, rather than legislation, guide expectant mothers away from tobacco.

In a final bit of irony, the move to prohibit smoking while pregnant would seem to lend strength to the argument that a fetus is a human being entitled to all the rights and privileges accorded personhood.

Instead, it merely strengthens the case that government has no business regulating a woman’s womb. Or any other body part.

Smoke-Free Womb

Hit and Run
June 15, 2006
By Jacob Sullum

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.

Anti-Smoking Group Supports Law to Ban Smoking by Pregnant Women and Boasts of Invasion of Women’s Privacy and Autonomy

June 15, 2006
By Michael Siegel
It took only hours from the time I posted yesterday about the Arkansas proposal to ban smoking by pregnant women and urged anti-smoking groups to speak out against this idea for a prominent anti-smoking group to weigh in on the proposal.

Unfortunately, rather than “distancing themselves from this proposal as definitively and as quickly as possible,” as I suggested would have been appropriate, this anti-smoking group supported the proposal and boasted about the degree of invasion of privacy and autonomy that such an intervention would represent.

Yesterday, Action on Smoking and Health (ASH) issued a press release supporting the proposed law and defending it against the argument that it represents a slippery slope leading to undue intrusion into the privacy and autonomy of citizens.

In the press release, ASH argued: “To the concerns — often called the ‘slippery slope’ argument — 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.”

“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.”

ASH seemed to boast about the degree of intrusion into individual privacy and autonomy that it is supporting, using the term “expanding [smoking bans] into wombs” to describe the latest proposal: “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.”

The Rest of the Story

One of the commenters on my earlier post quipped, in response to my recommendation that anti-smoking groups immediately condemn this proposal: “Surely you jest. They will jump on this bandwagon like white on rice. Anything that will give them an edge, and the fact that they didn’t say it first will just give them a smug attitude about it ‘having to be true,’ since they didn’t say it first, so it must be true, also. They don’t care if it’s true or not, or even ethically and morally wrong, as long as it gets them what they want, which is the outright elimination of the smoker, not just smoking.” (you told me so, Lynda!)

It only took a few hours, but ASH, true to apparent form, has come out in support of this intrusive proposal, rather than in opposition to it.

Once again, I think the anti-smoking movement is going too far in its apparent zeal to punish smokers, rather than to help them.

You don’t see ASH suggesting that we ban alcohol use by pregnant women, even though the adverse effects of alcohol use during pregnancy are well-documented. You don’t see ASH arguing that we should ban unprotected sex by pregnant women. You won’t hear ASH calling for a ban on pregnant women changing cat litter. And ASH is not calling on a ban on the consumption of tuna (which may contain high amounts of mercury, damaging to the fetus) by pregnant women.

Clearly, ASH is not motivated by some sort of primary concern for maternal and child health. Instead, they are motivated, I think, primarily by a hatred of smokers and a desire to punish them and to control them in the name of protecting the public’s health. It is paternalism of a grand form.

I would hasten to note 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, or to argue that abortion bans are constitutional.

I thought anti-smoking groups were going too far when they took the battle for smoke-free air from the workplace into the great outdoors. Then I thought they were going way too far when they took the battle back out of the outdoors and into the private home and car. But now they are simply out of control – taking the battle directly into the womb, as they themselves boast.

This is getting scary. Even for someone who has spent 21 years arguing in support of government intrusion into the privacy and autonomy of private business owners in order to protect people from what he believes is a bona fide occupational health hazard.

ASH PR: New Law Would Ban Smoking While Pregnant Movement Gets Boost With Endorsement by Gov. Huckabee
[06/14-5]
A proposal to ban smoking by women who are pregnant got a boost when Arkansas Governor Mike Huckabee — who just signed a law banning smoking in a car when children are present — endorsed the concept, saying that it makes sense from a health point of view. He called for a study to determine whether such a legislative proposal — designed to protect the health of the fetus and to reduce the huge costs of treating babies born prematurely and/or with birth defects caused by maternal smoking — would be lawful.

But 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.

“Since court after court has held that smoking is not a fundamental right like voting, and that smokers are not a protected class like African Americans or women, the government has wide leeway in fashioning a remedy for whatever it concludes is a problem requiring corrective legislation,” says Banzhaf.

The law is clear, he says, that governments are free to ban one cause of a problem which not regulating another. For example, governments may ban talking on a hand-held cell phone while driving, even though using a hands-free phone or engaging in other activities may be as dangerous.
Thus, a state could ban smoking by pregnant women while not banning other activities potentially dangerous to her fetus such as excessive alcohol consumption, certain athletic activities, etc.

To the concerns — often called the “slippery slope” argument — 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.

“The mere fact that legislators have banned the smoking of marijuana, but not the smoking of tobacco — even though few would argue that marijuana smoking is substantially more dangerous than tobacco smoking
— demonstrates the tremendous discretion legislators have in choosing to prohibit one activity but not another.”

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.

Also, he notes, there are many other situations in which governments impose restrictions on what many would regard as strictly private choices. These include wearing seat belts or motorcycles helmets, refraining from using many drugs, even by the terminally ill, the right to “death with dignity,” etc.

Another argument against such laws is the suggestion that it would be unconstitutional to punish a behavior which in many smokers is caused by an addiction. But the U.S. Supreme Court has held that addiction to alcohol is not a defense to crimes involving public intoxication.

Moreover, says Banzhaf, women may be addicted to the drug nicotine,but never to the activity of smoking. Thus even women who are addicted could comply with a law banning smoking by administering nicotine to themselves with patches, gums, etc. “While no one suggests that pregnant women should ingest a drug like nicotine, it is obviously far safer for both themselves and for the fetus if they get their nicotine from a patch rather than through active smoking.”

Finally, says Banzhaf, some have suggested that a woman’s constitutional right to choose an abortion means that she has a right to inflict harm or risk to the fetus because that’s less serious than killing it. But the Supreme Court has said that the right to an abortion exists only so that a woman can avoid the pain and problems of having a child. “Once a women has chosen to give birth rather than to abort, she has no constitutional right to endanger the fetus’ health,” argues Banzhaf.

“Reasonable people may disagree with Gov. Huckabee’s view that a law banning smoking by pregnant women would be desirable or even feasible, but it seems reasonably clear that, if enacted, such a law would be constitutional and withstand any challenge in the courts,” predicts Prof. Banzhaf.

LAW PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
2013 H Street, NW, Wash. DC 20006

Ark. lawmaker suggests ban on smoking during pregnancy

June 10, 2006

LITTLE ROCK – A Hot Springs legislator who led the charge to ban smoking in cars with children present says the state should also consider prohibiting smoking during pregnancy.

“I don’t know that it’d be constitutional if what the mother is doing is harming the child,” he said.

Mathis urged lawmakers to study the issue before the Legislature goes into session in January.

In a special session called in April to address Arkansas’ school funding problems, Mathis introduced a bill that makes it illegal for someone to smoke in a car that contains children in car seats. The bill, along with an indoor workplace smoking ban, passed easily in both chambers and was signed into law by Gov. Mike Huckabee.

Mathis noted that both recently passed bills “seem to have passed constitutional muster.”

“Well, maybe we ought to take a little step further and if the lady’s pregnant maybe she shouldn’t be smoking.”

A former smoker, Mathis is term-limited from returning to the Legislature.

Kevin Dedner, Arkansas government relations director for the American Cancer Society, said his organization prefers to fight smoking in public areas. Dedner said he hadn’t heard of a similar proposal anywhere else in the country.

Who Owns Your Body?Forever Pregnant. USA Guidelines: Treat Nearly All Women as Pre-Pregnant.