Pregnant Smokers and Drinkers

Originally posted by Nemesio
Wouldn't you say that this is as arbitrary a standard as could exist?
I mean, whether or not you get punished is contingent on which
officer you get and his/her mood at the time! At least BAC is a
measurable arbitrary standard....

Quite right. I suppose a lawyer might prefer the opportunity to argue a case in court where BAC is not an issue. The BAC seems to be, not only less arbitrary, but fairer since it treats all people the same. And logical since larger people are generally less effected by a given quantity of alcohol than smaller people.

Originally posted by Nemesio
Wouldn't you say that this is as arbitrary a standard as could exist?
I mean, whether or not you get punished is contingent on which
officer you get and his/her mood at the time!

That's right. I'm afraid No1 never did grasp the concept of arbitrariness the last time I explained it to him.

Having an officer decide drunkenness is arbitrary.

Choosing a particular BAC standard is arbitrary. But having that chosen standard thereafter decide drunkenness is not.


This can all be verified here: http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=arbitrary&x=0&y=0

Originally posted by DoctorScribbles
That's right. I'm afraid No1 never did grasp the concept of arbitrariness the last time I explained it to him.

Having an officer decide drunkenness is arbitrary.

Choosing a particular BAC standard is arbitrary. But having that chosen standard thereafter decide drunkenness is not.

What do you think of the analogy between drunk driving (irrespective
of the manner by which you judge drunkenness) and smoking in
the same house as your child?

I want to believe that it's 'false' but I don't see it.

Nemesio

Originally posted by Nemesio
What do you think of the analogy between drunk driving (irrespective
of the manner by which you judge drunkenness) and smoking in
the same house as your child?

I want to believe that it's 'false' but I don't see it.

Nemesio

It's not false.

I'd say its primary weakness is that driving takes place on state property. If the people pay for the roads, they have a say in how they may be used.

Similary, nobody is going to let a mother smoke in a maternity ward of a public hospital.

But one's private home isn't exactly in the public domain like a road or a public hospital, and therefore, even though the rights of the victims may be perfectly analogous, the jurisdiction that society can assert in order to curtail the rights of the perpetrators differs across the two cases.

Originally posted by DoctorScribbles
I'd say its primary weakness is that driving takes place on state property. If the people pay for the roads, they have a say in how they may be used.

This is a significant weakness I had not considered. I'll have to think
on this some more.

If I recall correctly, Canada has universal health care. Would you
say that if the US had it, then the People (State) have something to
say about this behavior?

Nemesio

Originally posted by Nemesio
Wouldn't you say that this is as arbitrary a standard as could exist?
I mean, whether or not you get punished is contingent on which
officer you get and his/her mood at the time! At least BAC is a
measurable arbitrary standard.

In any event, let us take the example of drunk driving without the
BAC issue. The State has indicated that a person's ' ...[text shortened]... nalogy between drunk driving
and smoking in your kid's face. Break it down for me.

Nemesio

Lines have to be drawn somewhere in a society; the danger that a truly drunk driver poses is immediate and life-threatening to others. He is performing his dangerous act in public, not in the privacy of his own home. This is a far different standard of governmental intrusiveness than dictating what activities parents can do in their own home that merely raises the risk of harm to other members of their family.

Your first paragraph shows a fundamental misconception; whether an officer is in a particular mood or not is irrelevant to the ultimate outcome in a criminal case. The State must convince a factfinder that the accused was too intoxicated to drive beyond a reasonable doubt. To do so, they are compelled to point to actual physical characteristics and/or activities of the accused at the time of driving which indicate intoxication. This is far from arbitrary unless you want to assert that how we prove anything in the criminal justice sytem is arbitrary. A BAC law, however, requires no proof of intoxication at all; it merely requires proof of a certain BAC level. As you point out, the abilities of people to drive at a given BAC level is quite different so that an elevated BAC is not even proof that the driver is a threat to anyone. That's why it is arbitrary and why laws which require proof, like staggering, slurring words, inability to recite your ABC's, etc. which are direct proof of a driver's physical condition, are not.

Originally posted by Nemesio
Would you say that if the US had it, then the People (State) have something to
say about this behavior?

Nemesio

Yes, but that would be leaving a poor path and embarking on a road to disaster if the health of citizens is your concern.

Originally posted by DoctorScribbles
But one's private home isn't exactly in the public domain like a road or a public hospital, and therefore, even though the rights of the victims may be perfectly analogous, the jusrisdiction that society can assert in order to curtail the rights of the perpetrators differs across the two cases.

Hmm...

Does that mean child abuse is permissible in one's own home? Of
course not. The People (State) have determined that the interests
of a child are their concern irrespective of whether the abuse happens
privately or publically.

The State says you may not hit your child with a crowbar, either in a
public park or in the basement of your home, right?

What interest does the State have in preventing child abuse except
the protection of children? What interest wouldn't the State have in
protecting those children from dramatic increases in cancer, especially
if the inconvenience posed is minimal (smoke outside)?

Nemesio

Originally posted by Nemesio
What do you think of the analogy between drunk driving (irrespective
of the manner by which you judge drunkenness) and smoking in
the same house as your child?

I want to believe that it's 'false' but I don't see it.

Nemesio

The damage caused by a smoker is immediate to both parties. The drunk driver may not hurt anyone at all. While the potential damage a drunk driver does seems more dramatic and obvious, that is only psychological. Cancer can easily devastate a body also.

Originally posted by no1marauder
That's why it is arbitrary and why laws which require proof, like staggering, slurring words, inability to recite your ABC's, etc. which are direct proof of a driver's physical condition, are not.

But how much staggering and how many slurred words (as a testimony
from the officer) is sufficient for deeming a person unable to drive
safely?

This is the arbitrary part. Falling down drunk, ok no problem. But
slightly buzzed? How slightly? &c.

This is off-topic, but very interesting in any event.

Nemesio

Originally posted by DoctorScribbles
Yes, but that would be leaving a poor path and embarking on a road to disaster if the health of citizens is your concern.

I know it. Think: McDonald's.

In which case, it would seem that a child's right not to be born
with Fetal Alcohol Syndrome doesn't exist.

Nemesio

Originally posted by Nemesio
Hmm...

Does that mean child abuse is permissible in one's own home? Of
course not. The People (State) have determined that the interests
of a child are their concern irrespective of whether the abuse happens
privately or publically.

The State says you may not hit your child with a crowbar, either in a
public park or in the basement of your hom ...[text shortened]... creases in cancer, especially
if the inconvenience posed is minimal (smoke outside)?

Nemesio

The right to privacy does not mean you have the right to commit crimes in private. Only that the government does not have the right to disturb your privacy without cause and due process.

Originally posted by Nemesio

What interest wouldn't the State have in
protecting those children from dramatic increases in cancer, especially
if the inconvenience posed is minimal (smoke outside)?

Nemesio

The mother's pursuit of happiness in enjoying her cigarette in the comfort of her own home.

If the mother can't beat her child with a crowbar, is her pursuit of happiness being curtailed? No, or if it is, then she clearly meets any minimal criteria society has for being institutionalized anyway.

The difference is that in the smoking case, two individual's liberty rights come into conflict: to mother's right to smoke, and the baby's right not to be poisoned. In the crowbar case, there is no conflict of rights, unless society is willing to accept that the liberty to beat others with a crowbar is a right.

Originally posted by Nemesio


In which case, it would seem that a child's right not to be born
with Fetal Alcohol Syndrome doesn't exist.

No, not necessarily.

Society could still acknowledge that babies have a right to be born without FAS, and that
mothers have the right to drink while pregnant, and that the latter is more valuable.

FCC censorship is one existing example. The press has a right to not be curtailed, but they can't broadcast obscenities, because it has been decided that the people's right to decent broadcasting over the shared resource of radio waves is more valuable.

Originally posted by Nemesio
I know it. Think: McDonald's.

Or, think of every talented medical professional who wouldn't consider even for a minute the idea of going to work in Canada.