By Sullum, Jacob
Reason , Vol. 26, No. 4
Government subsidies for health care invite arbitrary intervention.
THE SCARIEST THING I'VE READ IN A long time was an article that appeared on the front page of The New York Times under the bland headline, "FLORIDA PREPARES NEW BASIS TO SUE TOBACCO INDUSTRY." The story was about the state's recently approved Medicaid Third Party Recovery Act, which does not sound like a law capable of arousing much fear (or interest). But this piece of legislation should send a chill down the spine of anyone who cares about the rule of law.
The act is aimed at forcing tobacco companies to reimburse the state for the cost of treating smoking-related illnesses under Medicaid. Until now, product-liability suits against tobacco companies have had very little success. It's hard to prove in any given case that smoking caused a plaintiff's illness. Furthermore, juries have generally accepted the argument that smokers voluntarily assume the risks involved in smoking. The Florida law says the state does not have to worry about these barriers: It's enough to show that smoking is statistically associated with disease, and it doesn't matter that smoking is a free choice.
If the law is not repealed (many legislators who voted for it apparently did not understand its effect), it will eventually be challenged in court. It's hard to imagine a clearer violation of the Due Process and Equal Protection clauses, which represent safeguards that are essential to the rule of law. Whatever their statist sympathies or ambitions, American judges and legislators still claim to believe that government actions should be constrained by procedural rules, that laws should be generally applicable and announced in advance, that like cases should be treated alike, according to neutral principles. Government officials may not capriciously single people out for punishment. They may not do whatever they like, however they like, to whomever they like.
Yet with the stroke of a pen, Florida Gov. Lawton Chiles has chucked this venerable tradition, the bedrock of the common law and the Constitution. He has announced that tobacco companies, unlike other firms faced with a product-liability suit, may not dispute the claim that their product caused the harm in question and may not argue that consumers should be responsible for their own decisions. He has in effect declared the tobacco companies guilty before they reach the courthouse. Harold D. Lewis, general counsel to Florida's Agency for Health Care Administration, justified the preemptive strike this way: "The state can change the legal criteria for a suit, and that is what we have done. …