Housing, Healthism, and the Hud Smoke-Free Policy †

By Fagundes, Dave; Roberts, Jessica L. | Northwestern University Law Review, January 1, 2019 | Go to article overview

Housing, Healthism, and the Hud Smoke-Free Policy †


Fagundes, Dave, Roberts, Jessica L., Northwestern University Law Review


INTRODUCTION

On July 23, 2018, six smokers sued the Department of Housing and Urban Development (HUD) and HUD Secretary Ben Carson.1 The plaintiffs are challenging HUD's recent smoke-free policy, a rule that requires public housing authorities (PHAs)2 to restrict residents from smoking in all indoor areas-including private residences-and within twenty-five feet of any PHA-owned building.3 Among other claims, the lawsuit alleges that the regulations are unconstitutional, violating key provisions of the Tenth, Fourth, Fifth, and Fourteenth Amendments.4 This Essay lodges yet another set of critiques at HUD's smoke-free policy: it is discriminatory and imposes overlooked distributional concerns. Consequently, instead of improving public health, the new rule threatens to disadvantage and jeopardize the health of already vulnerable populations.

This Essay analyzes the new rule through the lens of "healthism," or discrimination on the basis of health status.5 Healthism as a theory considers when the law should regulate policies that disadvantage people who are considered unhealthy. It uses four guiding principles to discern whether a given intervention is healthist: (1) health welfare, (2) health liberty, (3) health equality, and (4) health justice.6 This framework acknowledges the necessity of making some distinctions based on health status, such as risk rating in private health insurance.7 Yet it argues that some distinctions are unduly burdensome, like bans on hiring overweight workers.8

The HUD smoke-free policy provides an ideal case study for healthism. Society generally regards smokers as unhealthy, and they face fairly widespread social stigma as a result.9 They are frequently the target of health policies, such as sin taxes,10 insurance surcharges, and anti-smoking ordinances.11 In short, interventions that disadvantage smokers are ubiquitous. However, there are good reasons for encouraging people to quit smoking. Tobacco use generally and smoking specifically are linked to a variety of ailments, including mouth, throat, and lung cancers, coronary artery disease, high blood pressure, emphysema, and stroke.12 Secondhand exposure to smoke has its own deleterious effects, especially on small children, including increased risks of asthma, bronchitis, ear and respiratory infections, cancer, and even sudden infant death syndrome (SIDS).13 Hence, reducing smoking can have positive health effects for individuals and their families. So the question emerges-Is HUD's smoke-free policy discriminatory or is it sound public policy?

We ultimately conclude the former. The smoke-free policy implicates all four of healthism's guiding principles. With respect to health welfare, noncompliance risks eviction. Ironically, then, the policy could reduce net social welfare. Pushing smokers-and their families-onto the streets will harm public health because homelessness poses even more immediate health risks than smoking. Next, singling out smokers while leaving other legal, health-risky behavior untouched raises health equality concerns. Regulating private, lawful conduct within the home also violates health liberty because the American property tradition has long afforded the home special status as a sanctuary against paternalist regulation. Finally, the smoke-free policy raises the kinds of distributional concerns captured by health justice. Historically disadvantaged groups such as people with disabilities, the elderly, and the poor are more likely to smoke, and are also more likely to live in public housing. Thus, the smoke-free rule uniquely burdens these populations. Moreover, quitting smoking is no easy task. It may take up to thirty attempts to successfully quit smoking.14 Making matters worse, members of historically disadvantaged groups are also more likely to lack access to the kind of resources and support that would enable them to successfully overcome a serious addiction.15 We therefore assert that HUD's smoke-free policy in its current iteration is healthist. …

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