Perspectives on the Law: Smoking

By Ken Niemann

In 2006, the City of Calabasas enacted what were arguably the harshest anti-smoking laws in the country. Smoking became verboten in all outdoor areas as social engineers marched to create a healthy society. More recently, the City of Ventura took similar measures against local business owners and particularly troubling about much of the dialogue surrounding the issue is a neglect or outright contempt for autonomy. For example, the VC Reporter quotes Liz Williams, project manager for Americans for Nonsmoker’s Rights:

“A lot of these policies are not just about secondhand smoke exposure, but environmental health protection and establishing healthy communities.”

Autonomy means “self-rule.” It’s the idea that a person possesses a prima facie right to self-determination, to personally define and prioritize the values of health, pleasure, meaning, etc. Autonomy is, perhaps, the most cherished and entrenched principle in healthcare ethics. A lucid summary of the concept comes from John Stuart Mill: “Over himself, over his own body and mind, the individual is sovereign.”

In contrast, what Ms. Williams is pushing here is a form of paternalism. Though it presents in a number of different forms, paternalism is essentially the interference by The State or an individual with another person, against that person’s will, and justified by a claim that the person interfered with will be better off or protected from harm. Ms. Williams (and the statist in general) knows what is best for everyone and is happy legislate it. Paternalism thus entails treating the individual as less than a moral equal.

It should be, however, up to the individual to decide whether health is always the highest good and the point at which one becomes willing to trade off health for some other pleasure is a deeply personal issue. Indeed, people often make irrational decisions, but it does not follow that a state mediator has carte blanche to usurp autonomy and make decisions for citizens. Moreover, it has also been effectively argued that, generally, “people who exercise the greatest degree of individual autonomy also enjoy the best of health”. The converse is true for those with the least amount of autonomy. Therefore, it is very much in the interest of Public Health to promote autonomy and it’s more desirable that people choose health rather than being coerced into it.

Forcing businesses to yield to smoking laws leads us to a slippery slope of nanny state rights violations such as sin taxes, taxing according to Body Mass Index, censorship, restrictive employment, etc. Autonomy then, rather than paternalism, should be the default position and fidelity to the Libertarian Ideal would be to, if paternalistic at all, ensure and maximize autonomy.Though it is granted here that second hand smoke is a health hazard, it is also argued that we need to view the issue in a framework of resolving the tension between autonomous individuals rather using this tension to invite centralized control over our lives.  Why not let the market decide? Businesses should be granted the freedom to allow or not allow smoking, and potential patrons of those businesses should be free to visit or not visit those establishments based on their preferences.

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