A recent EPA report revealed that secondhand smoke is a cause of thousands of respiratory problems among children. Despite this finding, many courts and legislatures have refused to recognize that the right to breathe fresh air is a fundamental right. Several courts have issued protective orders to insulate children from the effects of secondhand smoke. However, these orders have been instituted primarily in the context of child custody cases which require judges to consider the child's best interests. This article addresses the position taken by smokers that the fundamental constitutional right to privacy includes smoking. The author concludes that the right to smoke is distinguishable from other fundamental privacy rights and that courts have not only the power, but also the duty, to protect children from exposure to secondhand smoke.
Recommended CitationMichael S. Moorby, Smoking Parents, Their Children, and the Home: Do the Courts Have the Authority to Clear the Air?, 12 Pace Envtl. L. Rev. 827 (1995)
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