Exposing a Child to Secondhand Smoke is Child Abuse

James B. Alcorn

Franklin Pierce Law Center

March 31, 2005

jimalcorn5901 @ hotmail. com

Children like to think that their parents will never intentionally do any harm to them. I grew up an asthmatic child with severe allergies and chronic bronchitis. I also grew up with two parents who smoked heavily. The constant wheezing and bronchitis, while no joy, became a regular part of life. After high school, I moved from a smoke filled home to a smoke free college dorm and never looked back. Every parent hopes that they can protect their child from any harm and certainly would never wish any harm upon them. However, parents continue to smoke around their children all the time.

This article will argue that exposing children to secondhand smoke is child abuse. Every state in the nation has legislation that is intended to protect children from abuse. There exist reams of data to support the finding that smoking and exposure to secondhand smoke[1] are toxic to those around it – especially to children. It is not a stretch, but rather it is a logical conclusion, that exposing children to secondhand smoke is child abuse.

This article is split into six sections. Part I discusses the history of tobacco and tobacco related regulations in the United States. Part II discusses the detrimental effects of secondhand smoke with a particular focus on how it affects children. Part III discusses how child abuse laws evolved in the United States and their current application. In order to show the strength of this argument, Part IV examines the strength of similar claims that exposure to secondhand smoke has a detrimental effect with, again, a focus on exposure to children. Part V examines some of the major counter arguments to this claim. This includes practical and legal enforcement mechanisms, the fundamental right to smoke, parental autonomy, the slippery slope argument, and the argument that this is not severe enough to warrant attention. Finally, Part VI analyzes the probability of success for this claim.

Part I: History of smoking in America

The battle between smokers and nonsmokers is not a new one. With some notable exceptions, smokers have traditionally held the upper hand and have been able to smoke regardless of the objections by nonsmokers. While the right to smoke has not always been rooted in law, it surely has been rooted in custom.[2] Tobacco smoking had a stronghold in America before Columbus even landed in 1492.[3] Tobacco cultivation became a booming enterprise for colonial America and was quickly a popular habit in America and Europe.[4] Even with such a solid past, smoking rights have been a heated exchange for centuries.

Cigarette smoking was not always as socially acceptable in American culture as it is today.[5] At the turn of the twentieth century, tobacco was commonly smoked in pipes and cigars and was common used in its smokeless forms.[6] However, this changed when smokers realized that “the cigarette allowed tobacco… to be inhaled easily”[7] and “provided opportunity for a ‘quick smoke’ anytime and anywhere, as opposed, for example, to the ritual after-dinner smoking of a cigar or pipe.”[8] As a result of these “two notable ‘advantages’ over other tobacco products,”[9] the cigarette increased in popularity. During the first half of the century, cigarette consumption increased rapidly.[10]

Public opinion can be fickle and it changed significantly over the last century in regards to cigarette consumption.[11] In the late 1800’s and early 1900’s, a significant anti-tobacco movement developed in America.[12] During the 1800’s there were twelve states that enacted statutes restricting or prohibiting the sale of tobacco.[13] For example, Massachusetts banned smoking in public streets because of the fire danger posed by a smoldering cigarette.[14] Louisiana banned smoking in street cars due to the discomfort it caused nonsmokers.[15] The most draconian of all was Tennessee, who completely banned the sale of cigarettes within the state.[16] As early as 1901, all but two states had considered legislation that would restrict or prohibit tobacco trade, and a dozen states had successfully implemented such measures.[17]

Antismoking regulations continued to grow with increasingly strict measures to combat smokers.[18] The anti-smoking movement hit an early peak in 1921 with twenty-eight states considering ninety-two different antismoking bills and fourteen states succeeding in passing such legislation.[19] However, the efforts to prohibit smoking were short lived. By 1927, as judicial criticism and public opinion changed, all antismoking legislation had been removed from the books and legislative debate.[20]

Judicial criticism is evident from observing cases pertaining to cigarettes during the early part of the twentieth century. In 1911, the Kentucky Supreme Court invalidated an ordinance that completely banned cigarette smoking within the city’s corporate limits.[21] The court found that the restriction was unreasonable, arguing that “to prohibit the smoking of cigarettes in a citizen’s own home or on other private premises is an invasion of his right to control his own personal indulgencies.”[22] In 1914, the Illinois Supreme Court refused to uphold an ordinance prohibiting the use of tobacco in any streets, parks, or public buildings within the municipality.[23] Here, the legislation was criticized as “an attempt on the part of the municipality to regulate and control the habits and practices of the citizen without any reasonable basis for doing so.”[24]

Along with the shift in judicial criticism, the shift in public opinion led to the demise of antismoking legislation. There were multiple factors why public opinion shifted at this particular time. First, as American forces fought in World War I, tobacco became a staple of the soldier’s rations.[25] With so many soldiers returning home, the great war single handedly created a whole generation of cigarette smokers.[26] Second, prohibition of alcohol had an enormous effect on society and government. With the demise of Prohibition came a rebellion against bans on consumption of choice.[27] Cigarette advertising became a lucrative business for the advertising industry and cash strapped states discovered the tobacco industry as a lucrative source of tax revenue.[28] For these reasons, “everyone started [smoking] and [smoking] everywhere, creating an American custom which gave the smoker consent to smoke at will.”[29]

A large reason for the decline in smoke regulations is the change in public opinion as smoking became fashionable. Many actors and actresses displayed their habit in movies, television, and fashion models.[30] Smoking was considered a fashionable and acceptable adult choice, with its health effects limited to smoker’s cough and yellow teeth.[31]

Cigarette consumption declined again in the latter part of the twentieth century as the social acceptability of smoking changed.[32] While smoking was considered stylish in the 1940s and 1950s, today, it is considered, at best, an annoyance to others and a detriment to those around it.[33]

The publication of the 1964 Surgeon General’s Report marked the beginning of the decline of cigarette consumption in the United States.[34] This report concluded that cigarette smoking is a health hazard and it is a leading cause of lung cancer, laryngeal cancer, and chronic bronchitis.[35] Since this report, there have been thousands of articles published concluding that smoking is harmful[36] Until recently, the tobacco industry steadfastly denied the negative effects of smoking, even in the face of numerous studies and reports by the surgeon general and EPA that concluded otherwise.

In 1979, the Surgeon General reported that tobacco smoke is a main part of indoor pollution.[37] Heavy smoke in an enclosed area, combined with poor ventilation, lead to concentrations of carbon monoxide that exceeded the maximum limit of exposure for a sight hour day.[38]

In 1982, the Surgeon General reported that “although the currently available evidence is not sufficient to conclude that passive or involuntary smoking causes lung cancer in nonsmokers, the evidence does raise concern about a possible serious public health problem.”[39] Only two years later, the Surgeon General reported that there were significant difference in measures of the pulmonary function between persons heavily exposed to ETS and those not exposed.[40]

In 1986, the Surgeon General, after conducting another study, that ETS causes nonsmokers to develop lung cancer, and both acute and chronic respiratory disease.[41] The Surgeon General stated that “in examining a low dose exposure to a known carcinogen, it is rare to have such an abundance of evidence on which to make a judgment, and given this abundance of evidence, a clear judgment can now be made: exposure to ETS is a cause of lung cancer.” Furthermore, “the data presented in this report established that a substantial number of lung cancer deaths [that] occur among nonsmokers can be attributed to involuntary smoking.”

The 1986 Report made many conclusions about the danger to children. In particular, the 1986 Report found that 1) the children of parents who smoke, compared to children of parents who do not smoke, have an increased number of respiratory infections, increased respiratory symptoms, and slightly smaller rates of increase in lung function; and 2) the separation of smokers from nonsmokers within the same space may reduce the nonsmoker’s exposure to ETS.

In 1990, the Environmental Protection Agency furthered the Surgeon General’s 1986 Report. They concluded that 1) ETS can cause lung cancer in nonsmokers; 2) ETS is a Group A carcinogen; and 3) approximately 3800 lung cancer deaths occur annually among nonsmokers are attributable to ETS.[42] With respect to children, the Report found that “ETS from parental smoking, especially in infancy, is associated with increased prevalence of acute lower-respiratory tract infections (bronchitis and pneumonia), respiratory symptoms of irritations (cough, sputum, wheeze), and middle ear effusions (a sign of chronic middle ear diseases).”[43] The Environmental Protection Agency has no authority to regulate exposure to ETS, therefore they encouraged health professionals and policymakers to take appropriate steps to reduce the exposure toxicity of ETS exposure.[44]

The debate over the right to a smoke free society has become a heated topic between smokers and nonsmokers.[45] On one side, smokers assert that they have a constitutional right to smoke.[46] While nonsmokers assert that they have an equal right to freedom from sickness or irritation caused by tobacco smoke.[47]

The federal and state governments have been involved in this debate from the first shots. The government’s concern with the health effects of smoking is obvious by the numerous public service announcements regarding harmful effects of tobacco smoke. There is now a growing body of law restricting the use of smoking where it may injure other people.[48] Following this trend, the majority of states now have some form of legislation restricting the ability of people to smoke in public places.[49] Some states limit smoking to only a few designated areas while others are increasingly developing and implementing comprehensive legislation that restricts smoking in public settings.[50]

Part II: Toxic effect of ETS

After decades of research and reams of data, there should be no doubt in anybody’s mind that tobacco is a serious health threat to those who smoke it and those who are exposed to its smoke. ETS has been classified as a “group A carcinogen.”[51] When tobacco is smoked, two types of smoke are emitted into the air.[52] Mainstream smoke is drawn through the cigarette, whereas sidestream smoke is emitted directly into the air from the burning of the cigarette.[53] ETS consists of sidestream smoke and a portion of mainstream smoke.[54] As the smoker sucks on a cigarette, the temperature of the fire on the cigarette is much greater because oxygen is drawn in.[55] The higher temperature causes more complete combustion so that fewer dangerous chemicals are found in mainstream smoke than in sidestream smoke.[56] A cigarette burns at a lower temperature when it is not actively inhaled.[57] Furthermore, as the smoker inhales on the cigarette, a large portion of the toxic chemicals are either ingested by the smoker or filtered out by the filter on the tip of the cigarette. Because of its lower temperatures, lower combustion, and lack of a filter, sidestream smoke contains more dangerous chemicals than mainstream smoke.

ETS consists of more than four thousand chemicals and hazardous compounds.[58] Forty-three of these chemicals have been labeled as carcinogens by the EPA.[59] Laboratory tests have confirmed that sidestream smoke has a higher concentration of the four thousand poisons that are found in cigarette smoke.[60] Because the majority of smoke that an involuntary smokers inhales does not have the benefit of a high burning temperature or filtration by the cigarette itself, the concentration of those chemicals is higher than the mainstream smoke that a smoke inhales.[61] On average, a single cigarette injects approximately seventy milligrams of dry particulate matter and twenty three milligrams of carbon monoxide into the environment.[62] There is twice as much tar and nicotine in sidestream smoke than in the smoke inhaled directly from the cigarette.[63] There is also three times as much carbon monoxide, 30 times as much zinc and nickel, up to fifty times more formaldehyde, twenty to one-hundred times as much cancer causing N-nitrosamine, and up to 170 times as much ammonia.[64]

Once these matters are released, they have the potential to cause many types of harm. The dry matter composing tobacco smoke can exacerbate eye, nose, and throat irritations that can trigger coughing and headaches, even in nonallergic persons.[65] The carbon monoxide found in cigarette smoke deprives the body if oxygen and may affect auditory discrimination, visual activity, the ability to distinguish relative brightness, and time interval discrimination.[66] Some studies have suggested that nonsmokers exposed to large doses of secondary smoke may suffer many of the same effects as the smoker herself.[67]

Effects on children

The effect of ETS is most dramatic on children. In the United States, one half of all children under five years of age have been exposed to cigarette smoke and more than a quarter of all young children are exposed to passive smoke both before and after birth.[68] The effects of ETS on children are diverse and acute.[69] In 1991 a seven month old baby was found dead in her cot.[70] An autopsy revealed that she had over fifteen percent carbon monoxide in her blood – more than twice the amount found in an average adult smoker.[71] Investigators found the parents’ smoking – both of whom smoked in the room where she slept – to be the leading cause of her death.[72] The child was one of too many who have fallen victim to the toxic effects of ETS.

The American Lung Association has found that children inhale more air than adults and breathe more rapidly.[73] Children are inhaling more ETS when exposed to secondhand smoke.[74] Because children’s lungs are not fully developed, they are subject to an increased risk of damage.[75] It is no wonder that children are at high risk from the harmful effects associated with ETS. Since children spend about two-thirds of their time indoors, a parent who smokes at home is most likely exposing their child to ETS much of the time.[76] To compound the problem, children are not as able to escape the toxic air as a mature adult is. It is easy to imagine an adult asking another person to not smoke near them or simply walk away. It is harder to imagine a child asking an adult not to smoke near them. It is near impossible to imagine a child being able to leave a vehicle if their parent is smoking while driving. Because of their diminished capacity to assert their rights, children need somebody else to assist them.

Most experts agree that the effects of ETS exposure in children is dose dependent. This means that the highest risk of health problems are associated with children who live in homes where parents smoke a pack or more a day.[77] Few parents would purposely expose their child to ammonia (a poisonous gas used in insect spray and fertilizer), benzene (a cancer causing flammable liquid), carbon monoxide (a poisonous oxygen blocker), or hydrogen cyanide (a poison used in rat killer). Yet children are exposed to these chemicals every time a parent lights up a cigarette in their presence.[78]

Several studies “show excess acute respiratory illness in the children of parents who smoke, particularly in children under two years of age.”[79] Additionally, “the increased risk of hospitalization for severe bronchitis or pneumonia associated with parental smoking ranges from twenty to forty percent during the first year of life.”[80] Some scientists argue that the “time activity patterns of infants, which generally place them in proximity to their mothers, may lead to particularly high exposures to environmental tobacco smoke if the mother smokes.”[81] These studies lend support to the view that young children are in greater need of protection than adults.[82]

Exposure to ETS during infancy may increase a child’s susceptibility to viral respiratory infections that follow into later childhood and adult life.[83] Respiratory problems, such as wheezing, coughing, and spatum production are higher in children of smoking parents than in children of nonsmoking parents.[84] A 1984 study of more than 10,000 children between the ages of six and nine years of age found that the prevalence of a persistent cough and wheeze was higher in children whose parents smoked than in children whose parents did not smoke.[85]

The 1992 EPA report, which went further than the findings of the 1986 Surgeon General Report, indicates that children and infants exposed to ETS from parental smoking have significantly higher rates of respiratory disorders than those not exposed to ETS.[86] The report shows a strong correlation between parental smoking, especially among mothers, with detrimental respiratory effects in children.[87] These effects are so diverse and severe that they are listed specifically in order to make the reader fully understand the consequences of ETS on children Symptoms include respiratory irritation, such as coughing, wheezing, or the production of sputum; acute diseases in the lower respiratory tract, such as pneumonia or bronchitis, which often require hospitalizations; acute or chronic middle ear infections, predominantly middle ear effusion, the most common reason for hospitalization and surgery on young children; reduced lung function; exacerbated symptoms in asthmatics; and acute and frequent colds and sore throats.[88]

The 1992 report corroborates the previous conclusions of the 1986 Report of the Surgeon General, which linked exposure to ETS with respiratory illnesses and reduced pulmonary output functions.[89] The 1992 EPA Report also reviews new studies linking parental smoking to the induction of asthma and to increases in the number and severity of asthma attacks in children.[90] Additionally, the report reviewed, for the first time, data on the relationship between maternal smoking and sudden infant death syndrome (SIDS), which is thought to caused by an unknown respiratory condition.[91]

In the United States, SIDS kills more than 5,000 infants every year and is the main cause of death in infants between the ages of one months and one year.[92] The 1992 report found a clear correlation between deaths from SIDS and the a mother who smokes.[93]

Studies now show that the health risks of living with parents who smoke and exposure to ETS are dangerous to infants and may continue throughout a person’s lifetime.[94] Researchers associate decreased pulmonary function and lung growth in children with parental smoking.[95] It has been found that children with one or more smoking parents have a slower lung growth rate, which may lead to an increase in the lung’s susceptibility to chronic obstructive lung disease.[96] Studies also show that there may be a link between exposure to ETS during childhood and the risk of lung cancer later in life.[97]

Children living with a parent who smoke may have more than just physical injuries. Children of parents who smoke also suffer emotional consequences, mostly in the form of added worry. It has been estimated that eighty-six percent of children who have smoking parents are scared that their parents might die because of their habit.[98] This makes sense in light of the increased education, concerning the risks of smoking, that children receive in schools and public. Due to the constant education, children may well be more conscious of the risks associated with cigarette smoking. Other studies have shown that children of smoking parents are twice as likely as children of nonsmoking parents to become smokers themselves, which further jeopardizes their health.[99]

Non-physical injuries caused by exposure to ETS may not be readily apparent. Studies have shown that children exposed to ETS have adverse changes in their behavior.[100] Increased rates of behavior problems, measured by a Behavior Problem Index (BPI) were independently associated with a child’s exposure to maternal cigarette smoke.[101] The study did not find evidence of increased behavior problems in mothers who smoked during pregnancy but not after delivery.[102] This would seem to suggest that ETS exposure in an infant and child poses a greater likelihood of harm when considering the prevalence of behavior problems.[103]

Studies also show that exposure to ETS as a child increase the risk that the child will later become addicted to smoking or drugs.[104] Studies show that family and friends will play a large factor in a child’s decision to start smoking or drinking.[105] Children are more likely to pick up negative habits if their friends and family endorse them through their actions.

Finally, there is a financial detriment to children by parents who smoke. The annual cost for a pack of cigarettes in the United States runs from a low of $1,172 in Colorado to $2,117 in New Jersey with an average of $1,431.[106] Beyond the cost of the actual cigarettes, people who smoke or are exposed to ETS have higher medical bills.[107]

With decades of research and reams of data to support conclusions from a myriad of reputable sources, there should be no doubt in anybody’s mind that exposure to ETS is a toxic threat to children. The injuries can range from annoyance to life threatening illnesses such as lung cancer and pneumonia. The injuries need not be immediate, they will take multiple exposures over time. The injuries, also, may not be physical. Children who are exposed to ETS have increased behavioral problems, an increased chance of becoming addicted to smoking or drugs, and a higher financial burden placed upon their families. As will be seen, by any definition, exposure to ETS constitutes an injury worthy of child abuse.

Part III: History of child abuse laws

A state’s power to protect children in the family context is derived from two separate sources. The states’ police powers and the doctrine of parens patriae. The states’ police power enables them to protect citizens from harming one another.[108] Police power allows the state to promote public welfare, including the health, safety, morals and general welfare of the state’s citizens.[109]

The second source of power is the doctrine of parens patriae. Parens patriae power is the “state’s limited paternalistic power to protect or promote the welfare of certain individuals, like young children and mental incompetents, who lack the capacity to act in their own best interest.”[110] Were children able to assert their own rights, the state would not be called on to assist them. However, children are often not able to fully assert their rights and the state has a duty to assist them. While the state has this power, it does not displace the parent in right or responsibility.[111] Where there is a conflict, the best interest of the child is always superior to the right of parental custody.[112]

A state can intervene to protect a child where “parental conduct threatens a child’s well being.”[113] As another court stated, “the state, in its role as parens patriae, is the ultimate protector of the rights of children, and may act to provide for their health, safety and welfare when the parents fail to do so.”[114]

The history of child abuse laws is long in the United States. A parent’s right to care for and raise a child has consistently been recognized by the Supreme Court: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”[115] Children also have an interest in “an environment which serves their numerous physical and mental needs during immaturity.”[116] Child abuse breaks down the natural symmetry between the parental and child interests in the family.

Modern child abuse laws were enacted in response to medical studies that established child abuse as a problem of national importance.[117] The federal government enacted the Child Abuse Prevention and Treatment Act (CAPTA) to protect children from child abuse.[118] Today, every state in the nation has laws that establish a mandatory duty to report known or suspected child abuse.[119] New Hampshire sets as its purpose, “through the mandatory reporting of suspected instances of child abuse or neglect, to provide protection to children whose life, health or welfare is endangered…”[120] Utmost, the primary purpose is to protect the safety of the child.[121]

Every state defines child abuse in a slightly different way, and it is difficult to formulate an exact definition of child abuse. One might say that child abuse is like pornography in that you know it when you see it. The primary goal of child protection legislation is to identify children who are currently being abused or are in danger of becoming abused and move them into a system that can provide protection and assistance as quickly as possible.[122] Scholars debate whether the definition of child abuse should focus on the actions of the offending parent or on the harm suffered by the child.[123] Most statutes, particularly those defining neglect, focus on parental behavior and the environment in which the parental behavior occurs to gauge the likelihood of future harm.[124] Others believe that the focus of the definition should be on the harm suffered by the child in question.[125] This is an important distinction to make because if the statute focuses on the harm suffered by the child, there must be evidence that the smoking has been the cause of the injury to the child. While this could be proven, it would be much more difficult to prove than bruises caused by striking a child. Whereas, if the statute focuses on the actions of the parent, the parent could be explicitly banned from smoking in the presence of the child. David Gil, an authority on child abuse and neglect, supports these types of definitions, arguing that definitions of child abuse and neglect which rest on

the observed effects of an attack on a child, such as injuries sustained by him, rather than in terms of the motivation and behavior of the attacking person . . . disregard the motivational and behavioral dynamics of perpetrators and result in vagueness, since the outcomes of violent, abusive acts depend not only on the perpetrators behavior, but also on the victim's reaction to the perpetrator's behavior, and on environmental and chance circumstances.[126]

The definition of child abuse varies widely from state to state. For example, Alaska relies on a general definition of child abuse:

The physical injury or neglect, mental injury, sexual abuse, sexual exploitation, or maltreatment of a child under the age of 18 by a person under circumstances that indicate that the child's health or welfare is harmed or threatened thereby.[127]

California, on the other hand, has a very structured definition that is categorized and broken down into eight subsections, each of which is then defined.[128] The subsections are sexual abuse, neglect, severe neglect, and general neglect, willful cruelty, unlawful corporal punishment, abuse in out-of-home care, and child abuse.[129]

When these two extreme statutes are compared, one significant similarity becomes apparent. Although it is possible to define physical abuse, the states often choose to define it in general terms, frequently as "non-accidental physical injuries."[130] Accidental is not defined in most statutes, but can be given its common and approved usage by reference to a recognized dictionary.

Merriam Webster’s dictionary defines “accidental” as, “occurring unexpectedly or by chance.”[131] The harmful effects of ETS exposure on children do not occur accidentally because it can no longer be asserted that ETS exposure causes physical injuries that are unintentional or by chance. Major reputable and well known reports have alerted the public to the causal relationship between ETS exposure and the resulting harm to children. Parents willingly choose to smoke cigarettes around their children fully aware of the danger that it poses to them. Thus, the injury caused to children by exposure to ETS cannot be viewed as accidental under the common usage of the word.

Given the voluminous data regarding the harm of exposure to ETS to children, the focus of child-abuse laws on either the parent’s actions or the harm to the child, the definition or physical abuse as a “non-accidental physical injury,” and the common definition of accidental, there is no doubt that exposing children to second hand smoke is child abuse. The focus of this article now shifts to the probability of success for implementing this new scheme.

Part IV: Similar applications

The courts have found exposure to ETS to be detrimental to the health of persons in other types of lawsuits. Some of the most dramatic, and similar to child abuse, are the cases that deal with child custody and parental visitation rights. The courts’ openness to find in favor of nonsmokers in these similar claims makes it more likely that they will be open to a finding of child abuse where children were exposed to ETS by their parents.

Many courts dealing with custody cases have restricted parents from smoking in the presence of their children. The critical determination when making child custody determinations is the “best interests of the child.”[132] While every state is different, courts are allowed considerable latitude when deciding with which parent to place the child. Courts are to consider all relevant factors, such as the character of each parent, the child’s adjustment to his home, school, and community, the mental well being of the parents and child, among other factors.[133]

With the effects of exposure to ETS becoming so well known, many courts are considering parental smoking as an important factor in deciding child custody cases. Following Roofeh v. Roofeh, numerous courts have considered parents’ smoking habits in determining custody decisions.[134] For instance, in Badeaux v. Badeaux, a couple’s twenty month old child had bronchial problems and endured repeated upper respiratory infections.[135] The Court of Appeals for the Fifth Circuit affirmed the lower court’s decision to limit the father’s visitation rights and noted that one of the reasons that it limited his visitation was the detrimental effect that the father’s cigarette smoking had on the child’s health.[136]

In addition to visitation rights, courts also consider smoking when determining which parent should be awarded custody of a child. In Pizzitola v. Pizzitola, a jury denied a mother custody because, among other things, the child was allergic to smoke and the mother smoked in the child’s presence.[137] In Mitchell v. Mitchell, the Court of Appeals for the Middle Section of Tennessee affirmed the lower court’s decision not to award custody to a mother on the grounds that the mother and grandmother continued to smoke in the presence of the child, even after a physician warned them that it irritated the child’s asthma.[138] Due to the detrimental effect of the smoke, the court found that awarding custody to the father was in the child’s best interest.[139] The court also affirmed the lower court’s ruling that conditioned the mother’s visitation on assurances that the mother and grandmother not smoke in the presence of the child and take all acts necessary to dissipate any lingering smoke before the child’s arrival.

Courts give considerable weight to paternal smoking when the smoke is exacerbating a child’s existing health problems. In Lizzio v. Lizzio, the smoking mother lost joint custody of all her children.[140] The nonsmoking father was awarded primary and physical custody of the children against the recommendation of the guardian ad litem that joint custody continue.[141] The court rested its decision exclusively on the mother’s smoking habits and stated that:

[I]t is not as optimistic as the Law Guardian nor can it permit a child to be exposed to imminent danger upon the suppositions that a mother who has ignored medical advice for years will now see the light and do the right thing to protect her children. We are at a point in time when a parent or guardian could be prosecuted successfully for neglecting his or her child as a result of subjecting the infant to an atmosphere contaminated with health-destructive tobacco smoke.[142]

The toxic effects of ETS has not just been a factor where the child was already sick but also has been evaluated where healthy children were exposed to ETS. In Helm v. Helm, the court recognized parental smoking as a legitimate factor to consider in deciding the best interest of the child but ultimately chose not to reverse the decision by the trial court which had granted custody to the smoking parent.[143] Helm involved a healthy child who had no medical condition that was being worsened by exposure to second hand smoke.

The toxic presence of ETS has not just been limited to homes in custody and visitation cases. In Unger v. Unger, the Superior Court of New Jersey, prohibited a mother from smoking in her home or in her vehicle when her children were present.[144] Furthermore, the court prohibited her from smoking in her home or vehicle for ten hours prior to the children’s visitation.[145] Mrs. Unger unsuccessfully argued that this would open up a floodgate of litigation.[146] The court noted that it did not prohibit the mother from smoking altogether, rather she was limited by the times and places where she could smoke.[147]

The cases that consider exposure to ETS as a factor in child custody and visitation rights share some common themes. First, courts clearly consider exposure to ETS a detriment to the health of children. Second, cases that involve healthy children are not as likely to weigh exposure to ETS as strongly as in cases where ETS exposure exacerbates a child’s existing medical condition – such as asthma. Finally, most courts consider exposure to ETS only a factor to consider among many, and unlike the court in Lizzion, do not consider it a determinative factor.

Part V: Counter-arguments

Nobody ever said that the path to success would be easy. The argument for child abuse when a parent exposes their child to ETS while easy on its face has numerous counter arguments. There are the practical issues of effective and legal enforcement mechanisms as well as whether exposure to ETS is severe enough to warrant a the hassle of a child abuse hearing. There are also constitutional claims about the fundamental rights of choice and parental autonomy. Each of these arguments could cripple

Enforcement mechanisms

Enforcement mechanisms are a major concern regarding a court’s ability to prohibit a parent from smoking in close proximity to his or her child. Some argue that as a practical matter, enforcement problems would nullify any attempt to prohibit smoking in the presence of children.[148] As with any judgment, a court must be able to ensure that it is followed. How can a court ensure than a parent is following a prohibition order? The court has two possible mechanisms to test the compliance of parents. First, the court may solicit testimony of persons privy to this knowledge. The most obvious parties are the members of the household in question. Children may be questioned whether their parents smoke in their presence. If the original complaint originated with one parent, they may be able to testify whether the offending parent has continued to smoke in the presence of the children. Likewise, a teacher or physician who made the original complaint may testify – though they would only be able to testify as to the effects that they have observed unless they have firsthand knowledge of the parent smoking in the presence of the children. Since many parents openly smoke around their friends, family, and children, there is likely somebody who could testify if an adult exposed a child to cigarette smoke. This leads to obvious issues of reliability of such testimony since the children may be biased by their feelings for or against a parent. Likewise, any parent who made the original complaint is obviously prejudiced against the offending parent. Finally, anybody who does not live with the children would not have first hand knowledge of the parents actions around them. That said, testimony by witnesses can play an important part in traditional child abuse claims, so there is no reason to think that these issues of reliability are any different in the case of ETS exposure.

Beyond testimony by witness, a child’s involuntary exposure to tobacco smoke can be measured in several ways: air sampling, use of biomarkers, and application of survey instruments.[149] Air sampling involves measuring concentrations of such markers as breathable, suspended particulars or nicotine in the air.[150] Biomarkers involve measuring concentrations of smoke components in biological materials, most commonly in saliva or urine.[151] The most common biological markers are nicotine and cotinine.[152] Once nicotine is ingested it rapidly disappears from the human body; only lasting one to three hours.[153] Therefore, detection of nicotine would be difficult to monitor by way of blood or urine samples unless the child was recently exposed to ETS. On the other hand, the half life of cotinine is approximately ten times longer than nicotine and would be enough to make monitoring effective.[154]

Some chemicals can also be detected through hair testing.[155] Compared to the scant hours that chemicals last in the blood stream, traces of drugs can be found in hair for much long periods (three months or more).[156] One study found that found concentrations of nicotine and cotinine in the mother’s hair correlated to the accumulation of nicotine and cotinine in the fetus’ hair.[157]

While one author argues that this would be the only effective way to monitor smoking in the presence of children, others argue that it would be too intrusive, too disruptive, impossible to organize, and would face challenges on several constitutional grounds.[158] One may argue that mandatory testing for exposure to ETS is an illegal search. However, while controversial, employees may undergo random drug testing.[159] In the case of child abuse, the court would have reason to conduct the search. If the charge of child abuse is brought for exposure to ETS, and not other substances, the search must be limited to exposure to ETS. Furthermore, the testing should proceed only as long as is necessary. A court should be able to conduct private and focused testing to enforce a court order.

Both nicotine measurement and air sampling are limited to describing current exposure.[160] An obvious drawback to testing is that there is no way to ensure that the biomarker was the fault of the parent; the child may have been exposed to ETS outside of the parents’ purview. For these reasons, the court should use testing in limited usage and rely upon testimony if the testing indicates exposure to ETS.

Fundamental right to smoke

The fundamental right to privacy has become the smokers favorite weapon in opposing orders that curb smoking in the home. Specifically, smokers assert their fundamental right to smoke in the privacy of their homes without governmental intrusion.[161] Although the term “right to privacy” cannot be found in the United States Constitution, the Supreme Court of the United States has found the right to privacy exists in the penumbra of the Fourteenth Amendment’s Due Process clause.[162] It is the liberty component of the Fourteenth Amendment’s Due Process clause that confers upon citizens a right to privacy.[163] The right to privacy exists to insure individual autonomy and to keep conduct that society feels ought to be kept purely private free from governmental intrusion.[164]

The United States Supreme Court has not yet addressed the issue of whether smoking in the home is a fundamental right. In Collins v. City of Harker Heights, the Court stated that substantive due process must begin with a careful description of the asserted rights, “for the doctrine of self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.”[165] Smokers’ argument that smoking is a fundamental right usually focus either on the location or the action.

Smokers’ arguments that smoking at home is a fundamental right focus on the location: the home.[166] Smokers argue that their home is their castle and that they should be able to do as they wish within the confines of their home.[167] American tradition has favored privacy in the home. The framers of the Constitution specifically mentioned the home in the Bill of Rights[168] and the Supreme Court has frequently expressed a reluctance to intrude into affairs of the home. For example, in Griswold v. Conn., the Court held that a state could not enter the home to inspect for telltale signs of birth control[169] Similarly, in Stanley v. Georgia, the Supreme Court held that a state could not punish use of pornography in the home even though the same activity occurring outside the home could be punished.[170]

The smokers’ approach is analogous to the First Amendment analysis of Stanley, but it is not aligned with the Fourteenth Amendment privacy analysis enumerated in Roe v. Wade. Not all conduct which occurs in the home receives extensive protection. Stanley turned on the place where obscene materials were possessed; public possession could be curtailed wile private possession could not.[171] While the Fourteenth Amendment right to privacy is closely connected to one’s home, it is not infringed every time the home is invaded. The protection it affords the home is merely incidental. Typically, only the most important or intimate conduct is afforded substantial privacy protections. For example, Roe v. Wade focused exclusively on the activity involved, rather than the location in which the activity occurred. Since smoking is not a First Amendment issue, a location oriented analysis is inappropriate. If smoking is to qualify as a fundamental right, it must qualify under the Fourteenth Amendment right to privacy analysis.

The right to smoke in one’s home is a fundamental right only is “implicit in the concept of orderly liberty” such that “neither liberty nor justice would exist if [it was] sacrificed.”[172] In making such a determination, the court must look to the “traditions and conscience of [the] people.”[173] Tradition is split as to the freedom of smokers. As discussed above, until the early twentieth century smokers were allowed to smoke freely. Then during the early twentieth century there were drastic restrictions placed upon smokers, which were lifted after a few years. Then beginning in the latter part of the twentieth century restrictions creped back onto smokers. The conscience of the people, as it relates to smokers, has changed drastically in the last few decades.[174] Public awareness of the dangers of smoking has led to a decline in the number of smokers in this country.[175] States and federal legislatures have responded with laws banning smoking from certain areas. Thus, it appears that the conscience of the people has shifted into the court of nonsmokers.

Furthermore, the right to smoke has little in common with other fundamental privacy rights, which typically advance an “individual[‘s] interest in avoiding disclosure of personal matters” and “independent in making certain kinds of important decisions.”[176] Important decisions have included the use of contraceptives, abortion, marriage, and child rearing.[177] Unlike smoking, which is a rather public action, all of these are fundamental and personal components of family planning.

Finally, assuming arguendo that smoking is a fundamental right, a smoker’s freedom of choice is not impaired by limiting a smoker’s ability to smoke in the presence of her children. The proposed court orders would not entirely prohibit smoking; they merely prohibit smoking in a manner likely to adversely affect children.[178] Like an abortion, smoking around children is “an act fraught with consequences for others.”[179] It is the competing interests of the children that allows the state to limit smokers’ right to choose. Preventing parents from smoking in the presence of their children balance the competing interests of the parents and the children: they protect the children’s health and allow parents to smoke in an area away from their children. Smokers should be allowed the freedom to smoke, however they do not have the right to diminish the lives of others.[180]

Parental autonomy – right to raise children

Beyond the privacy of the home argument, some commentators believe that privacy of family life might insulate parental smoking from governmental scrutiny.[181] Their argument is founded largely in two Lochner era Supreme Court cases.[182] In Meyer v. Nebraska, the United States Supreme Court held that a statute that forbade the teaching of any language other than English in grade schools was unconstitutional.[183] In Pierce v. Society of Sisters, the Court held that the state could not require students to attend public schools instead of private schools.[184]

Meyer and Pierce are frequently used to argue that parents have a fundamental right to control the upbringing of their children.[185] When they are combined with cases concerning family matters such as contraceptives, deciding whether or not to have a child, marriage, divorce, and fertility, courts generally find that family relationships deserve special constitutional protections.[186]

While family relationships receive some special considerations, they are not immune from the rest of the law. There is no question that the state has the ability to intervene within the family if necessary to enforce other laws, such as protecting children. The United States Supreme Court has held that the state can protect children even from members of their own family.[187] There is no reason that a charge of child abuse from exposure to ETS should be treated any differently than a traditional charge of child abuse.

Slippery slope argument

Smoking shares a common thread with the bundle of fundamental privacy rights currently protected by the Fourteenth Amendment: an underlying issue of choice. Some would argue that if the government is allowed to prevent people from choosing to smoke that there will be no end to the government’s reach into the home. Will parents be held liable for allowing their children to be in the presence of other people who smoke? What about parents who feed their children too much junk food? What about parents who choose to live in a city with polluted air? It is always important in privacy analysis to be aware of the slippery slope: “Neither judge nor legislators nor citizens should permit decisions…, focused as each must be upon its precise context, to be taken without attention to the drift of its cumulative result.”[188] Judges must be “scrupulous to distinguish the slip which leads inexorably down the slope from the one that does not.”[189]

Smoking around children is a concrete injury that requires judicial attention whereas other far fetched ideas are not rooted in necessity; therefore, there is no cause for concern that the government will attempt to stretch their reach into unnecessary areas. The dangers to children stemming from secondhand smoke are real and substantial. Secondhand smoke exposure is unlike the “dangers” further down the slippery slope, such as diets high in sugar or fat, because it results from a parent’s habitual behavior.[190] Children have no choice in whether their parents smoke in their presence. It is unlike a choice to live in a polluted city because people have the right to choose where to live. While this article does not take the position that smoking is a fundamental right, it is nonetheless entitled to a certain level or protection from interference. In order to avoid the tumultuous descent of the slippery slope, judges should ensure that their orders are rationally related to the state’s legitimate interest in safeguarding children. Courts should refrain from the extreme stance taken in Strathmann, where the judge required that the father refrain from smoking forty-eight hours prior to his children’s visit.[191] This was overly burdensome and not necessary. Secondhand smoke does not linger for forty-eight hours and thus needlessly deprived the father of his right to smoke during that time period.[192] Although judges have considerable need and discretion to issue nonsmoking orders under the rationality standard, they should, in light of the slippery slope, avoid overbroad orders that unnecessarily restrain parents’ smoking rights without a corresponding benefit to a child’s health.

Severity of exposure to ETS does not warrant child abuse

Opponents of this law might argue that exposure to ETS is not severe enough to warrant a finding of child abuse. One might argue that exposure to ETS is not as severe as the traditional form of child abuse, such as physical beatings and sexual contact. However, as explained above, exposure to ETS put children at risk of bronchitis, pneumonia, and asthma among other things. They are also more at risk for various forms of cancer and becoming addicted to cigarette smoking. The level of physical injury required for child abuse is not exceptionally high. These life threatening injuries are as serious, if not more serious, than traditional forms of child abuse. They may be more serious when one considers the number of lives affected and dollar costs of treating these ailments.

Part VI: Probability of success?

Treating exposure to ETS as child abuse has a fair chance of succeeding. One of the strongest arguments in favor of its success is that the laws would not require change in order to enact this. The child abuse laws of various states are broad enough to encompass exposure to ETS as child abuse. If this were to require legislators to rewrite their laws the bill will definitely be dead upon arrival for the tobacco lobby would strongly fight any law such as this. Their enormous size and financial power would make a legislative battle anything but fruitful. Furthermore, public opinion, while shifting toward nonsmokers, may not support legislation that would support this claim. The sheer number of smokers that would be affected negatively by this would make it a legislative nightmare.

A much more cost efficient manner would be to find a state where the child abuse laws are general enough to accommodate this new claim. For the initial suit, one should shop around jurisdictions and find one favorable to this claim. Jurisdictions that strongly prosecute child abuse statutes may be sympathetic this suit. Even though politics and public opinion should not guide judicial temperament too much, it clearly does. Therefore, one should stay away from jurisdictions that are clearly sympathetic to the tobacco industry and search for a jurisdiction that would be more open to this claim. The number and diversity of cases cited in this article suggest that there are a number of jurisdictions and judges around the country that may be open to this claim. That said, any finding of child abuse will obviously be appealed. Therefore, the appellate as well as the trial courts must be examined.

For the initial suit, one would have a better chance winning if exposure to ETS complicated a preexisting health condition in the child rather than a normal, healthy child. The most successful child custody cases have been where the child was already sick and the exposure to ETS made their situation worse. Even though the data proves that exposure to ETS harms healthy children, the public may not be ready to support a claim of child abuse with a seemingly healthy child. The public will better accept a claim of child abuse where a parent furthered the suffering of their already sick child.

CONCLUSION

Every year the death toll for tobacco grows taller. There is no reason that another child needs to suffer because of a parent’s poor decision. Smokers may be resistant to the near constant restrictions on their ability to smoke. But we can all agree that there is no reason for another child to suffer because of exposure to ETS. The evidence is irrefutable. Decades of research and reams of data detail how toxic exposure to ETS is and how damaging it is to children. Parents can no longer claim that they do not know how dangerous it is. The current child abuse laws support a claim from exposure to ETS. The counter arguments to this claim will be costly but ultimately are winnable. No more children should have to be asthmatic or suffer from chronic bronchitis because of their parent’s poor decision.