Puffing Away Parental Rights: A Survey and Analysis of Whether Secondhand Smoke Exposure Is Child Abuse

By Huml, Karly | Journal of Law and Health, Spring 2019 | Go to article overview

Puffing Away Parental Rights: A Survey and Analysis of Whether Secondhand Smoke Exposure Is Child Abuse


Huml, Karly, Journal of Law and Health


I.    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. …

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