Sue the bastards -- I mean the mothers

Posted: Jun 21, 2006 8:06 AM
First they came for the workplace, then for people’s homes and cars, and then the great outdoors.

Now the anti-tobacco jihadists, having helped ban smoking in most public and many private places, have turned their attention to the most private space of all — the womb.

That very personal place where humans incubate could be the next battlefield between smokers and those who have never uttered the words: “It’s none of my beeswax.”

This latest brainstorm comes from Arkansas, where Rep. Bob Mathis successfully shepherded legislation making it unlawful to smoke in cars in which small children are passengers.

Apparently not satisfied with saving the recently born, Mathis wondered whether it would be constitutional to prohibit mothers from smoking while pregnant. Studies show, after all, that fetuses are at risk for low birth weight if their mothers smoke while pregnant.

No, wait, this just in: A new study in Australia shows that women who smoke while pregnant may cause their children to become obese. In a University of Queensland study published in the American Journal of Epidemiology, researchers found that smoking mothers’ children were 30 percent more likely to be overweight.

Underweight, overweight, oh-whatever. Both are bad, both involve tobacco, and that’s enough for John Banzhaf, the heavyweight George Washington University law professor who for years has led the anti-smoking brigade.

More recently, he’s best known for leading the charge against fast-food restaurants that serve fat-laden foods to unsuspecting, um, fat people — otherwise known as people who eat too much and wouldn’t read a nutritional label if it had a cherry on top.

Banzhaf likes to sue people, in other words, and he’s been enormously successful. Which is to say, pregnant smokers, beware.

Already Banzhaf is setting his sights on fetal rights related to their smoking mums. While it is legally defensible to abort a fetus up until moments before birth, it is apparently inconceivable that a woman would expose her unborn child to the harmful effects of smoking.

While you’re struggling to wrap your mind around that nonsensical nugget, Banzhaf is already issuing press releases. In a recent one from the organization he heads, Action on Smoking and Health, Banzhaf predicts that prohibiting smoking by pregnant women would pass constitutional muster.

“Since court after court has held that smoking is not a fundamental right like voting, and that smokers are not a protected class like African-Americans or women, the government has wide leeway in fashioning a remedy for whatever it concludes is a problem requiring corrective action.”

Now there’s a thought to warm a Taliban heart.

Certainly life offers enough problems to keep government regulators and litigators indefinitely occupied, but one has to ask: Are smoking mothers worthy of our censure? What about pregnant women who drink? Or who refuse to take their vitamins? Or who listen to hip-hop when studies show that Bach makes you smarter?

Sorry lady, but you’re under arrest for dereliction of maternity duty.”

These are silly examples, of course, but no sillier than trying to legislate behavior that is, indeed, no one else’s business. We of a certain generation, meanwhile, recall fondly the sight of our mothers sipping martinis and smoking Salems while large with our soon-to-be sibling.

We should all be dead by now given the amount of secondhand smoke we inhaled. Not to mention the gin-drenched olives we slurped when backs were turned. As a bonus sidebar to these reminiscences, the term “bike helmet” was a non sequitur.

No one’s suggesting that pregnant women should smoke, or drink, or pole-dance — or whatever tempts the masses these days. But people have a right to be stupid, to make bad decisions, to marry the wrong guy, to eat the wrong foods and, alas, to elect the wrong people to public office.

Speaking of which, because of Arkansas’ term limits, Mathis won’t be able to pursue his idea of criminalizing pregnant smokers. And Arkansas Gov. Mike Huckabee, whom Banzhaf has credited with endorsing the concept of banning smoking while pregnant, says he has been misrepresented. When reporters asked what he thought about the idea, Huckabee said he hadn’t examined the legal aspects, but that from a health standpoint, “Heck, yeah, it makes sense.”

Clarifying that statement Tuesday, Huckabee told me he would prefer to let common sense, rather than legislation, guide expectant mothers away from tobacco.

In a final bit of irony, the move to prohibit smoking while pregnant would seem to lend strength to the argument that a fetus is a human being entitled to all the rights and privileges accorded personhood.

Instead, it merely strengthens the case that government has no business regulating a woman’s womb. Or any other body part.