Individual rights going up in smoke: if the coercive utopians can deny child-custody rights to smokers, there is no telling the extent to which they can regulate our lives--for our own good, of course. (The Law).

"I'm just stunned over this," Johnita DeMatteo told the New York Post for March 26th, "I feel this is a violation of my rights." Utica-based New York State Supreme Court Justice Robert F. Julian had just ruled that DeMatteo would no longer be allowed to see her 13-year-old son (Nicholas) if she smoked any more cigarettes in her house or car. Citing widespread "proof" of the health danger of secondhand smoke, Julian concluded that "the best interests of Nicholas dictate that he shall not reside in, or visit, or occupy any residence or motor vehicle of the parties in which smoking of any type occurs at any time and that he shall be in a smoke-free environment to the extent practical outside the home." The court ruled that Johnita is prohibited from smoking in her house and car even when her son is not around.

The growing army of salaried anti-tobacco activists across the nation has hailed the ruling as a landmark decision. DeMatteo's case is the first court ruling banning a parent's smoking in a case where the child is by all accounts healthy and has no allergic or health-related reactions to smoke. But the Chicago-based law firm, The Muller Firm, explains that DeMatteo isn't the first parent to lose custody of a child for smoking: "In a rush to prevent what one pundit called 'the most prevalent form of child abuse,' at least fifteen state courts, including California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Tennessee and Texas, have held that it is appropriate to consider whether a parent smokes around a child in determining whether or not they should be awarded custody."

Parents not involved in current custody battles should not feel immune from this dangerous court application of parens patriae, the legal doctrine that the state must intervene in the home when it is in the "best interest of the child." The Muller Firm explains that "it is not uncommon for doctors, school nurses, teachers, grandparents and neighbors to file a complaint of suspected child abuse, neglect or endangerment against a parent where smoking in the presence of a child is perceived to create an alleged health risk." The firm adds that "at least three (3) parents have lost custody of children because of complaints from outside the home." (Emphasis in original.)

Energetically promoting the "smoking" strategy to help win child-custody battles is the radical Action on Smoking and Health (ASH). Headed by attorney John Banzhaf, ASH is the largest and oldest anti-smoking organization in the nation. ASH has affiliates in Europe and Asia, and its Board of Sponsors includes health-related former U.S. cabinet secretaries Louis E. Sullivan and Joseph A. Califano Jr., former Congressman Anthony Beilenson, and "Dear Abby" Abigail Van Buren, among others. The 33-year-old organization offers anti-smoking legal forms on its website and has even suggested that criminally prosecuting pregnant women who smoke may be a good idea. Long before Johnita DeMatteo ever saw the inside of a courtroom, ASH's web page was asking: "Are you involved in a dispute over custody, and your spouse smokes in the presence of the child and/or permits others to do so?" ASH notes that disgruntled divorcees ordering their legal packet "will find out that in several situations a parent who smoked around a chil d lost custody of the child as a result."

Following the Money

While Johnita DeMatteo's case may appear to be a novelty and a legal fluke, it is actually part of a multi-billion dollar national and global campaign to ban tobacco smoking. The 1998 federal tobacco lawsuit settlement allocated $246 billion toward tobacco education and medical remediation. Much of the ban-smoking "education" money is being allocated toward activism. And nowhere is this more apparent than in Massachusetts, one of only five states surpassing federal guidelines in anti-tobacco funding. Massachusetts provides a model of anti-tobacco activism for other states to follow, with the ban-smoking effort most visible in town-by-town battles to prevent lighting up in bars. This is especially evident in the state's two oldest communities: Plymouth (founded in 1620) and Weymouth (founded in 1622). Weymouth is an historic suburban community of 54,000 just 12 miles south of Boston that instituted a smoking ban on March 4th. Among the most recent casualties in this ongoing battle is Gerard "Woody" Woods of We ymouth, who owns Woody's 58 Bar & Grille. "People are leaving and going to surrounding towns that allow smoking," he told THE NEW AMERICAN. "There is a bar over the bridge in [the neighboring town of] Quincy that put up a big sign that says 'We welcome all Weymouth smokers.'

Americans who don't smoke or drink might tend to view smoking bans in bars and restaurants with indifference. "Who cares," they might say, "if a town I don't live in bans smoking in bars? It doesn't make any difference to me." But banning smoking in restaurants and bars, supposedly to protect the health of nonsmokers, is a step toward removing children from smokers' homes. Seeking to establish their claims through legal precedent, the anti-smoking lobby is working vigorously to make Americans believe that, even in well-ventilated bars, their health is at risk. Once this claim is accepted, going after those who smoke in the home becomes much easier; anti-smoking activists can then make the case that residential secondhand smoke is worse than tavern smoke because exposure is more prolonged. While statisticians suggest that spouses of smokers have an increased chance for contracting cancer and heart disease by 20-30 percent over spouses of nonsmokers, the statistical associations of disease for people who are o verweight or who don't exercise regularly are much greater. What's worse, if children can be removed from the home to save them from secondhand smoke, other reasons will follow.

Non-legislative Smoking Dan

A Massachusetts Tobacco Control Program (MTCP)-funded study, entitled "Smoke Knows No Boundaries: legal strategies for environmental tobacco smoke incursions into the home within multi-family residential dwellings," suggested how governments could be used to ban smoking in the home, specifically within apartment complexes. "Each state in the USA has some regulatory mechanism to protect the health of its citizens living in multi-unit dwellings," the study noted. "The regulation may take the form of a sanitary code, a housing code, a landlord tenant regulation, or a municipal code." The study, conducted by Northeastern University School of Law's Tobacco Control Resource Center, concluded: "The general health protection language of the regulations, in conjunction with the latest evidence of the harmful effects of ETS [Environmental Tobacco Smoke], gives state agencies authority to regulate environmental tobacco smoke incursions among apartments in multi-unit dwellings."

The study's emphasis was on how the law could be employed to ban smoking in the home by putting the legal burden on the landlord to impose the "no smoking" rules. The study's author, Northeastern University Professor Robert L. Kline, notes that by focusing on secondhand smoke as a public health issue, "this eliminates the issue of the smoker's right to privacy in the home and focuses on the landlord providing the nonsmoking tenant with safe living conditions." The public health angle "removes the politically contentious issue of smokers' 'rights' in their residences. Procedurally the burden will be on the landlord to show the Board acted unreasonably and not on the Board to justify the exact details of ETS science." In other words: Smokers are not free to do what they want in their home and are guilty until proven innocent.

Kline claims that no new law is necessary to ban smoking in homes of people living in apartment complexes or condominiums. "The advantage of this strategy is that ... no legislative action is necessary," the author claims. "It merely involves an application of existing law and scientific knowledge to specific facts by a Board of Health (the Board). Where the Board decision is appealed to a local court, the court may choose to defer to the administrative body's judgment in its area of expertise."

The reference to the Board of Health is important. In Massachusetts, local Boards of Health receive state funding for the specific political purpose of eliminating environmental tobacco smoke. According to the MTCP, the tobacco control programs of municipal "Boards of Health/Health Departments raise public awareness of the need for tobacco control public policy initiatives. They are primarily funded to enact and enforce local ordinances and regulations designed ... to protect the public from environmental tobacco smoke." Few Board of Health officials would dare uphold the rights of a smoker and risk endangering state funding, so the support of Boards of Health for home smoking bans is all but certain.

Kline's strategy already has an advocate and a practitioner: ASH joined the fight to ban smoking in apartment buildings and condominiums long ago. "If you smell it, it could be killing you!" blares an ASH advertisement. "Even if you can't smell it, many of these cancer-causing chemicals can nevertheless be entering your lungs....Please don't hesitate. Drifting tobacco smoke already kills more people that [sic] motor vehicle accidents, all crimes, AIDS, illegal drugs, etc. In other words, you are statistically more likely to be killed by your neighbor's tobacco smoke than by his car, his gun, or his AIDS virus." ASH members can download from the group's web-site specially prepared legal briefings aimed at winning court judgments banning smoking in their apartment complexes. On April 30th, the New York Times reported that a New York City-based apartment building co-op had decided to exclude smokers from its property. The precedent has been set, and more will follow.

Globalization of the Tobacco War

Groups like ASH are also striving to internationalize tobacco control politics. The United Nations' World Health Organization (WHO) is considering a global "Framework Convention on Tobacco Control" (FCTC) that would ban -- or at least progressively restrict -- tobacco products and secondhand smoke. Federally funded anti-tobacco Non-Governmental Organizations (NGOs) have lined up to back the convention. "Children are especially powerless to control their exposure to ETS," Linda Civitello-Joy of the American Lung Association testified at a March 8, 2001 U.S. Department of Health and Human Services public hearing on the FCTC. "And yet, they are the group most adversely affected.... The Framework Convention should take action to reduce exposure of adults and especially children from ETS." An ASH press release gleefully notes that the FCTC "marks an important shift in the use of international legal instruments as a means of promoting public health." It will be a "legally binding international treaty," according to ASH. The American Lung Association, along with other major anti-smoking organizations -- such as the Campaign for Tobacco Free Kids -- has formed a global NGO alliance to promote the pact. Their "Framework Convention Alliance" charges itself with "building support for global tobacco control."

Even the tobacco companies have tentatively signed on for a global convention. Though they gripe about not having a booster seat at the global convention table, tobacco giant Philip Morris pledged in a March 15, 2001 press release to "join with the WHO and its Member Countries -- including the United States -- to confront the challenge of addressing the issues surrounding tobacco policy, and to find practical, effective solutions."

What Next?

The huge tax-supported anti-tobacco lobby is coming for the smokers. But if this lobby succeeds in outlawing smoking on the basis that it is a health hazard, then the door will swing wide open for outlawing other behaviors or habits that the would-be coercive utopians deem hazardous to our health.

Take junk food, for instance. According to the August 5th issue of Newsweek, "This fall, Northeastern University law professor Richard Daynard is holding a closed-door strategy session for nearly 100 lawyers interested in pressing ... claims against Big Fat, or what -- in reference to 'Big Tobacco' -- they're calling 'Big Food.' 'Five years ago, when we said we'd take junk-food makers to court,' says Daynard, 'people laughed.'"

Presumably, many Americans are still laughing. After all, shouldn't people be able to decide what to eat or not eat? And if they damage their health by eating too much junk food, is that really the fault of McDonald's? The answer is yes, according to a class-action lawsuit filed in New York on July 24th. The lawsuit seeks undetermined compensatory damages against not only McDonald's but Wendy's, Kentucky Fried Chicken, and Burger King. It claims that their fast food damaged the health of 5-foot-10-inch, 272-pound Caesar Barber and others.

In a free market, consumers can decide the fate of fast food in the same way they can decide the fate of smoking establishments: Consumers can spend their money on what they like and boycott what they don't. In a truly free market, the consumer is king. But if the coercive utopians have their way, the government will be king and tell the rest of us what to do -- for our own good, of course!