According to Judge Leddy: "Abuse is more serious than neglect, although either can result in the removal of a child from his parents. The distinction generally rests on the nature of the injuries sustained by the child or the potential injuries of which he was placed at risk. To constitute abuse, they must involve a "protracted impairment" of physical health or a "protracted impairment of the function of any bodily organ." Because of the long-term implications for even healthy children, it could well be argued that parents who expose their children to secondhand smoke subject them to both a substantial risk of a protracted impairment of their health, and a protracted impairment of the function of their lungs. ... Gennaro's proposal thus complements existing New York State law insofar as it would require parents to protect their children from this preventable health hazard. Privacy concerns about his proposal do not withstand scrutiny."
The Rest of the Story
There are two serious flaws in Judge Leddy's argument.
First, it is not true that healthy children exposed to secondhand smoke necessarily suffer protracted impairment of their lung function. It is certainly a risk of exposing a child to secondhand smoke, but exposure does not necessarily translate into harm. It translates into an increased risk of adverse effects on lung function. Specifically, childhood secondhand smoke exposure increases the risk for asthma and for decrements in lung growth and function. But risk is not the same as harm, and as Judge Leddy himself acknowledges, to be a form of child abuse, smoking around children would have to result in protracted harm.
I think it would be a grave mistake to consider smoking around children to be a form of child abuse. If we deem as child abuse the failure to protect one's child from exposures that merely increase the risk of adverse health consequences, then there is a long list of parental behaviors that would fall into the category of child abuse. These include the following behaviors, each of which represents a failure on the part of parents to protect their children from exposures which significantly increase the risk of potentially serious adverse health consequences:
- repeatedly feeding your child high-fat, high trans-fat, fast foods and sweetened juices and soda;
- allowing your child to watch hours and hours of television every day, get no exercise, and take part in no physical activities;
- allowing your child to play hockey;
- allowing your child to drink alcohol; and
- allowing your child to drive in a car late at night.
The second flaw is the argument is that the characterization of smoking around children as child abuse justifies a law which bans smoking in cars with children present. If, as Judge Leddy argues, exposing children to secondhand smoke is child abuse, then it is abusive whether it takes place in a car or in the home. If smoking around children really is child abuse, then there is nothing to justify the argument that smoking around a child is acceptable in the home, but not in a car. If privacy concerns truly do not withstand scrutiny, then there is no justification for not interfering in the home as well as in the car to "further children's legitimate right to an environment that safeguards their health and promotes their wellbeing."
In fact, it seems that if one truly believes that smoking around children is child abuse and that privacy concerns do not withstand scrutiny, then it becomes unconscionable that the New York City Council would fail to protect children from exposure to secondhand smoke in the home. And it should be noted that exposure in the home is by far the predominant source of children's tobacco smoke-related health problems. Car exposure does not even begin to compare to home exposure.
If New York City lawmakers are sincerely concerned about protecting children from the hazards of secondhand smoke exposure, then they must have the courage to face the difficult issue of household secondhand smoke exposure. There are a number of interventions, short of removing children from homes and criminalizing their parents, which have proven to be effective. Programs that educate parents about these hazards, encourage them to smoke outside, and provide financial support and services to actually help parents quit smoking are reasonable measures. But treating smokers as child abusers is neither justified nor wise.