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There is No Constitutional Right to Smoke Samantha K. Graff 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.' Today, smoking causes approximately 440,000 deaths each year and results in over $150 billion in annual health-related economic losses.z Smoking not only injures nearly every organ of the smoker's body," 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.' 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.s Moreover, various cities have passed smoking restrictions that cover tar- geted locations, such as playgrounds, parks, beaches, and public transit vehicles.' 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.' Advocates promoting smoke-free legislation often encounter opponents who make the ominous legal- sounding 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.' 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 af- ford to smokers. Section I -There is No Constitutional protection to smokers as a group. 'I'bis section Right to Smoke explains that neither of these claims is legally Key Points Constitutional rights are specially protected, so ¦ There is no such thing as a constitutional "right to that laws generally cannot take them away. If a law smoke," since the Constitution does not extend appears to interfere with a constitutional right, those special protection to smokers. whose rights are affected can challenge that law in ¦ Smoking is not a specially protected liberty right court A court will invalidate the law if it finds that under the Due Process Clause of the Constitution. the law improperly treads on a constitutional right. The fundamental right to privacy does not apply to smoking. Constitutional rights include the right to freedom of speech," freedom of religion,'' due process of law," Smokers are note specially protected category of people under the Equal Protection Clause of the and equal protection under the law"-- Constitution. The Constitution does not explicitly mention ¦ Since the Constitution does not extend special smoking. Therefore, if there were a constitutional right protection to smokers, smoke-free legislation to smoke, it would have to fall under the umbrella of need only be "rationally related to a legitimate one of the recognized constitutional rights. People government goal" who claim a right to smoke usually rely on one of ¦ Because there is no specially protected right to two arguments: (1) that smoking is a personal liberty smoke, tobacco control advocates can work to amend or repeal state laws that stand in the way specially protected by the Due Process Clause," or of tobacco control efforts. (2) that the Equal Protection Clause" extends special This synopsis is provided for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney. Laws cited are current as of June 1, 2005. The Tobacco Control Legal Consortium provides legal information and education about tobacco and health, but does not provide legal representation. Readers with questions about the application of the law to specific facts are encouraged to consult legal counsel familiar with the laws of their jurisdictions. 3