Herald-Leader Editorial

Ruling against smoking ban binds Kentucky to past, limits future

June 24, 2014 

BRETT MARSHALL | 2005 STAFF FILE PHOTO — LEXINGTON HERALD-LEADER Buy Photo

A decade into its pioneering smoking ban, Ireland is dancing to a happy tune of more tourists and healthier people.

Meanwhile, Kentucky is stuck in its same old dirge of addiction, denial and early death.

The contrast between the smoke-free isle and Kentucky's No. 1 rankings in smoking and cancer could not be more discouraging.

The latest example came last week, when the Kentucky Supreme Court blocked local health boards from protecting the public from the deadly effects of breathing other people's smoke.

The court struck down a smoke-free regulation enacted in 2011 by the Bullitt County Board of Health.

The decision was a victory for the elected Bullitt Fiscal Court and the county's eight city councils, which challenged the health board's action.

The Supreme Court ruled unanimously. But the opinion's author, Justice Bill Cunningham, had to strain and stretch to explain away a century of high-court decisions upholding public health boards' authority and duty to protect Kentuckians' health.

The justices bowed to tobacco smoke's unofficial exceptionalism among toxic pollutants, a status it has long enjoyed with many who run for public office in Kentucky.

Far more cogent was the appeals court decision written by Judge Laurance B. VanMeter and struck down by the Supreme Court.

The appeals panel upheld the Bullitt health board's action as consistent with decades of similar regulations, including Lexington's smoking ban, upheld by the high court. Then-Judge Michelle M. Keller concurred. Now a Supreme Court justice, Keller did not participate in the latest decision.

In last week's ruling, the high court relied heavily on the legislature's intent when it enacted a key enabling law in 1954, no doubt, Cunningham wrote, "in chambers fogged with a haze of smoke."

Lawmakers, the court reasoned, would not "have remotely foreseen" that 60 years later a health board would use its authority to ban smoking in public places.

Of course, lawmakers also would not have foreseen bioterrorism, HIV, MRSA, food-borne hepatitis outbreaks, the birth control pill or the polio vaccine that was not introduced until 1955.

Binding public health officials to what Kentucky lawmakers might have anticipated in 1954 falls far short of judicious.

The opinion also draws a critical distinction between public health boards appointed by local elected officials, such as those in Lexington and Louisville, and those, like Bullitt County's, that are appointed by the state's public health commissioner.

By statute, medical and other expert professionals dominate certain local health boards, including the one that enacted the smoke-free regulation.

Perhaps it did not occur to the court that the legislature's intent was to insulate public-health decisions in smaller counties from political motives.

This ruling illustrates the wisdom of insulating public-health decisions from political motives, even if unintentionally.

The upshot is that further progress toward clean indoor air in Kentucky will have to come from local elected bodies or the legislature.

Cunningham waxed poetic about "our agrarian history and culture" while direly warning of the emergence of a "regulatory state."

But as Ireland — and some Kentucky places — show, tradition and clean air make good partners.

Rather than wiping out pub culture, as many had predicted, Ireland's smoking ban brought a boom in tourists drawn to pub music and clean air, as The New York Times recently reported of the ban's 10th anniversary, while heart attacks and strokes are down markedly.

What's rich and healthy about a culture will survive, even thrive, outside the toxic fog of tobacco smoke — even in Kentucky, where, as Cunningham wrote, 8,000 adults will die this year from tobacco-related causes.

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