AuthorHuml, Karly
  1. INTRODUCTION 90 II. BACKGROUND 93 A. Surgeon General's Reports 93 B. What is Secondhand Smoke? 94 C. How Does Secondhand Smoke Harm Children? 95 D. Courts and State Legislators Have Taken Three Steps to Begin Protecting Children from Secondhand Smoke 96 1. Protecting Children in Custody Cases 96 2. Protecting Children in Public 97 3. Protecting Children in Vehicles 97 III. ANALYSES 98 A. There Has Never Been a Successful Constitutional Argument Against Smoking Bans 98 1. Smoking Bans Do Not Violate the First Amendment Right to Assembly and Association or to 99 Free Expressive Speech 2. Smoking Bans Do Not Violate Fourteenth Amendment Rights Under the Equal Protection Clause or the Privileges and Immunities Clause 100 B. Courts Across the Country Have Taken Three Noteworthy and Constitutionally Proper Steps in an Effort to Protect People's Health and Welfare Against Secondhand Smoke 101 1. The First Step: Weighing Parental Smoking as a Factor in Custody and Visitation Rights Cases 101 2. The Second Step: Public Smoking Bans 102 3. The Third Step: Smoking Bans in Vehicles with Children Present 103 C. The Next Step, Child Abuse Charges--Closing the Loopholes Based on The Constitutional Foundations of the First Three Steps 104 1. Where Are the Loopholes that Allow Secondhand Smoke to Harm Children? 104 2. Why Haven't We Closed the Loopholes? 104 3. How Can We Close the Loopholes? 105 4. A Proposed Plan to Close the Loopholes 107 IV. CONCLUSION 108 I. INTRODUCTION

    "I will die from secondhand smoke and I have never smoked in my life." (1) This is a quote from Lynda Mitchell, a fifty-two-year-old woman dying of Chronic Obstructive Pulmonary Disease (COPD). (2) From the day Lynda was born, her parents smoked sixty cigarettes every day. (3) By the time she was one-year-old, Lynda suffered from her first bout of pneumonia and was diagnosed with asthma as a young child. (4) From age nine to fourteen, Lynda went to boarding school so she could escape the toxic air she was living in, but her lungs were already permanently damaged. (5) Lynda now has only twenty two percent lung function and relies on an oxygen machine to help her breathe twenty-four hours a day. (6) Sadly, Lynda's story is not unique and foretells the future health concerns for millions of children in the United States.

    Like Lynda, over 36 million children in the United States (7) will ingest chemicals that are found in pesticides, batteries, gasoline, embalming fluid, paint thinners, and 7,000 other toxins when they inhale secondhand smoke. (8) Every year, over 300,000 of those children are reported as suffering from bronchitis, pneumonia, and ear infections caused by the toxins found in secondhand smoke and the high exposure they suffer from their parents' smoking habits. (9) This year, secondhand smoke will hospitalize 15,000 children under the age of two due to respiratory infections. (10)

    Secondhand smoke is an issue for everyone in our country and a serious health risk for our children. Children are most heavily exposed to secondhand smoke at home because harmful toxins are unavoidable when living with a smoker. (11) In the 1988 landmark case of Roofeh v. Roofeh, (12) a New York Appellate Court took the first step in protecting children from their parents' secondhand smoke in the home. In the course of divorce proceedings, Mr. Roofeh filed for a protection order to shield himself and his children from Mrs. Roofeh's secondhand smoke. The court denied the protection order but ordered Mrs. Roofeh to limit her smoking to a single room in the house and prohibited her from smoking in the presence of her husband and children. (13)

    After Roofeh, many courts around the country (14) began defending children's constitutional rights by considering parental smoking as a factor in custody and visitation rights and started limiting parents' smoking habits. Subsequently, courts have been partially protecting children from secondhand smoke when their parents are getting divorced. However, children whose families are not going through divorce are still largely unprotected from secondhand smoke because their parents are not at the mercy of the court. (15)

    Legislators have taken a second step to protect non-smokers from secondhand smoke in workplaces, restaurants, athletic venues, and other public spaces by banning smoking indoors or on the premises and by designating outdoor smoking sections, but these are often unenforced. (16) This is an important step, but non-smoking adults and children are still at risk when smoke carries from room to room and gets blown indoors from designated smoking areas. (17) There is no safe amount of secondhand smoke, thus inhaling it for only a second is dangerous and toxic. (18)

    In 2006, Arkansas was one of the first states to take a third step by protecting children from secondhand smoke in vehicles. After only

    half of a cigarette has been smoked in a car, the air quality levels are ten times higher than what the EPA considers hazardous. (19) These air quality levels are dangerous for everyone, but especially children because their lungs are not yet fully developed. (20) Currently, eight states (21) ban smoking in vehicles with children under specific ages, ranging from 8 to 18. (22) These statutes were enacted to protect children from inhaling toxic chemicals in an enclosed space. (23) While this is another positive step, children are still unprotected in their homes and around their smoking relatives where they are most heavily exposed to secondhand smoke.

    The steps taken thus far to protect children in public areas, custody cases, and in vehicles show the legislature's awareness of the chemical harms of secondhand smoke for children. This article will analyze those steps and discuss what they mean for both parents' and children's constitutional rights. This article will propose that the legislature take a vital fourth step by including secondhand smoke exposure in child abuse laws.

    Section II of this article provides the history of smoking tobacco and its transition from a trendy social status to an unpopular, harmful habit. Section II will also introduce the steps that have been taken so far to protect children from secondhand smoke. Section III, Part A will discuss how and why there has never been a successful constitutional argument against smoking bans. Section III, Part B will look further into the three steps that courts and legislators have already taken to protect children from secondhand smoke and how those steps are constitutionally permissible. Section III, Part C will discuss whether courts and legislators can apply the same constitutional basis of existing statutes to take the next step and interpret child abuse statutes to include secondhand smoke exposure.


    1. Surgeon General's Reports

      Historically, smoking tobacco was socially acceptable and was a symbol of social status. Hollywood favorites like Audrey Hepburn and Humphrey Bogart made smoking tobacco look stylish, and eventually the mass production of cigarettes made them much more affordable and readily available. (24) However, that began to change in 1964 when the Surgeon General released a report condemning tobacco as the cause of cancer and other serious diseases. (25)

      The 1964 Surgeon General's report was based on an extensive study and concluded that cigarette smoking was linked to a 70% death increase. (26) More than 50,000 studies concluded that this extreme increase in tobacco users' death rate was attributable to smoking related diseases such as lung cancer, bronchitis, emphysema, and cardiovascular diseases. (27) The Surgeon General's report went on to explain why smoking tobacco became so popular, making this the first study to prove that tobacco is a psychologically addicting substance. (28)

      In 1986, the Surgeon General released a subsequent report that exposed the serious health risks of secondhand smoke. (29) The Surgeon General prefaced this report by stating "for smokers, it is their responsibility to assure that their behavior does not jeopardize the health of others." (30) Not only did this report reiterate the findings of the 1964 report, it also proved how smokers are subjecting non-smokers to all the health defects and diseases that they expose themselves to. (31) This report offered the numbing fact that inhaling secondhand smoke is the largest preventable cause of death and disability in the United States. (32) Further, this report refers to secondhand smoke as "involuntary smoking," because non-smokers who are forced to inhale secondhand smoke suffer the same harmful effects as the people who choose to put themselves at risk. (33) Following the release of this report, tobacco's popularity began to rapidly decrease.

    2. What is Secondhand Smoke?

      Secondhand smoke is the combination of mainstream smoke--the smoke exhaled by the smoker--and sidestream smoke--the smoke from the burning end of a cigarette. (34) Secondhand smoke emits over 7,000 chemicals, 70 of which are cancer-causing and hundreds of which are toxic and cause many different health defects and diseases. (35) Exposure to secondhand smoke immediately affects the cardiovascular system and blood vessels, carrying these toxins throughout the body and to the inhalant's heart, brain, and lungs. (36)

      People are exposed to secondhand smoke at home, at work, in vehicles, and in a vast majority of public places where there are people currently smoking or where a person had been smoking recently and left a smoke-filled space. People inhale secondhand smoke in these places directly from a smoker, from a burning cigarette, from smoke lingering on smokers' clothing, and from smoke drifting from room to room and through the open air. (37) Even the briefest exposure to secondhand smoke immediately affects vital organs, proving that there is no risk-free amount of secondhand smoke. (38)

    3. How Does Secondhand Smoke Harm Children?

      Children have a higher risk of secondhand...

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