There is No Constitutional Right to Smoke

Smoking is the leading cause of preventable death in the United States. More than 12 million premature deaths over the past 40 years were attributable to smoking.1 Today, smoking causes approximately 440,000 deaths each year and results in over $150 billion in annual health-related economic losses.2 Smoking not only injures nearly every organ of the smoker’s body,3 but it inflicts considerable damage on nonsmokers. Exposure to secondhand smoke is estimated to kill more than 52,000 non-smokers in the United States each year.4 In an attempt to limit the extraordinary harm that tobacco smoke inflicts on individuals and communities, advocates across the country are supporting enactment of state and local smoke-free laws. These advocates have seen their efforts rewarded with a wave of state and local workplace restrictions that prohibit smoking in offices, restaurants and bars.5 Moreover, various cities have passed smoking restrictions that cover targeted locations, such as playgrounds, parks, beaches, and public transit vehicles.6 In addition, some local government agencies, such as police and fire departments, have adopted policies requiring job applicants or employees to refrain from smoking both on and off the job.7 Advocates promoting smoke-free legislation often encounter opponents who make the ominous legalsounding argument: “You are trampling on my right to smoke.” The purpose of this law synopsis is to debunk the argument that smokers have a special legal right to smoke. If there were a legal justification for a special right to smoke, it would come from the U.S. Constitution.8 The Constitution lays out a set of civil rights that are specially protected, in that they generally cannot be abrogated by federal, state, county and municipal laws. Section I of this law synopsis explains that neither the Due Process Clause nor the Equal Protection Clause of the Constitution creates a right to smoke. As a result, the Constitution leaves the door wide open for smoke-free laws and other tobacco-related laws that are rationally related to a legitimate government goal. Section II highlights two types of state laws that may create a limited right to smoke. Section II shows that in the absence of a constitutionally protected right to smoke, advocates can seek to amend or repeal these laws, thus taking away any safeguards the laws afford to smokers.