COLUMN -- Before state tries to safeguard public health, it must define it

Wednesday, April 6, 2005


Although never said in so many words, the quote attributed to Justice Potter Stewart — "I can't define pornography, but I know it when I see it" — bears much resemblance to our state Legislature's outlook on public health; it can't define public health, but if its lust for regulation is aroused, then an issue must be a public health issue.

I've followed several public health-inspired bills through legislative committee meetings. Not once has any committee provided neutral criteria defining when an issue rises to the level of a "public" health concern that requires government intervention — hardly a reassuring observation for business owners earning their livelihoods in the context of promiscuous legislation.

Case in point: The currently impotent statewide smoking ban, which many desire to see brought up again in general session as an amendment to an omnibus health bill.

As initially presented, the "Freedom to Breathe Act" would have extended existing law to include a ban on smoking in quasi-private bars and restaurants. After weakening the legislation with amendments, the House Health Policy and Finance Committee passed the bill without recommendation to the House Commerce and Financial Institutions Committee, where it was rejected on a very narrow voice vote. Those favoring a smoking ban shrunk from demanding the accountability of a roll call.

My side won. I should have been happy. I was not.

I wish I could say the commerce committee killed the bill because members recognized that property rights are fundamental rights. I wish I could say it killed the bill because it rejected bad science. I wish I could say the committee recognized the bill exceeded state authority. I can't.

To be honest, from what was discussed in the committee meeting, I had no idea how committee members, pro or con, justified their votes. Such wham-bam treatment of the legislation, frankly, leaves both sides in the debate unsatisfied.

If one favors a statewide smoking ban, what new rationale does one use to raise the issue again? If one is opposed to a statewide smoking ban, what precedent can one draw from the action of the commerce committee? What's left? Beating up on the same old arguments until one goes blind?

The commerce committee aside, it is the House Health Policy and Finance Committee where first criticism rightly falls. By passing the smoking ban bill without recommendation, the committee failed to fulfill three basic obligations.

First, the health committee failed to objectively define a "public health risk" in order to determine whether or not secondhand smoke rises to the level of a "public" health issue requiring government intervention.

Second, the committee failed to ascertain whether or not state government was the proper level of government at which to implement a smoking ban.

Third, the committee failed to resolve the fundamental issue of perceived conflict between the fundamental rights of private property and the entitlement rights of nonsmoking patrons and employees.

The latter two points are debatable, but only if the first issue is affirmatively resolved. Call me crazy, but a state committee with "health" in its title ought to have some set of neutral criteria that defines what a public health issue is. It ought to be able to state why it is hearing a bill in the first place. Simply saying "this looks like a health issue" isn't good enough when actions taken hurt people's lives and businesses.

Allow me to propose such criteria.

In order for a health issue to rise to the level of a "public" health issue that requires government intervention, three criteria must be met. First, people must be exposed to a risk to which they have not consented. Second, the risk must be widespread — anybody or everybody is potentially at risk. Third, people cannot reasonably protect themselves from the risk through their own actions.

Pick the health issue, apply the criteria — regulations governing preparation of restaurant food, prohibiting smoking in public buildings, banning smoking in private bars and restaurants, passing obesity-inspired regulations on fatty foods. If it doesn't fit the criteria, it's not a public health issue. If it does, it is.

Criteria-based legislation is the practical application of the principle of "the rule of law." Without neutral criteria, there is virtually no issue immune from legislatively transmitted injustice. Stamping out such injustices is a public health initiative the Legislature ought to consider.

UPDATE: The term "Legislatively Transmitted Injustice" (LTI) is applicable to a lot of programs implemented in a lot of areas where government oversteps its authority and starts messing around in what are rightly individual affairs. "LTI" is a nice shorthand description.