Just Walt's Mental Meanderings

Walter Blevins

Walter Blevins
Vista, California, USA
August 22
I'm a 60 year old guy who lives in Vista California with my wife. I spent the 30 years before moving to Cali in Iowa, Wisconsin and North Dakota. And I have 2 grown children, a son and a daughter who live in Virginia and Iowa and a 22 year old step-daughter lives with us here in Vista. I'm a proud grandpa with 2 grandaughters living in Virginia. I like to write about a whole variety of things from my kids to cooking to politics to the car industry to my status as a "Cheap Bastid" and "Old Fart" and just random thoughts. And I really love writing about cooking really good, homecooked comfort food cheap. That's why they call me the Cheap Bastid. By the way--all the stuff I write is my stuff and you can't use it without my official OkeyDokey

MARCH 5, 2012 6:36PM

Cigarettes, Ultrasounds and Deliberation

Rate: 9 Flag

This is an election year.  I was going to say that it is a political year, but they all are, aren’t they?  And it seems like each election year things get just a bit worse.  More millions are spent from the deepest pockets that can be found on increasingly slanted and vile propaganda—and that’s on both sides of the political coin.

But that’s not what this is all about.  I want to touch on a couple of things which most might think have nothing to do with one another and yet I think that there is a fundamental connection between them vital to us all.

Here’s two things:  1) Last week U.S. Judge Richard Leon ruled that the labels that the FDA was going to require to be put on all packages of cigarettes violate the First Amendment. 2) The Legislatures in Virginia along with Alabama, Pennsylvania and others are passing legislation requiring sonograms prior to a woman being able to secure a first trimester abortion.

So here’s a bit more background on each:

Leon was ruling on a suit brought by tobacco companies against the U.S. Food and Drug Administration’s requirement that cigarette packages contain an explicit and graphic warning covering a minimum of half of one side of the package.  Leon said that the government mandate amounted to an “impermissible expropriation of a company’s advertising space for government advocacy.”
Essentially what Leon is saying is that the government is forcing cigarette companies to advertise against themselves on the packaging of their own product.  Here’s some information from the LA Times article on March 1:

The warnings that were to be put on cigarette packages, Leon wrote were …“neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks.  Rather, they were calculated to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking…”

“…Leon suggested, in effect, that if the federal government wished to press its case against tobacco, that it should do so on its own nickel.  It could step up its own advertising campaign against smoking, raise taxes on tobacco in a bid to induce smokers to quit or toughen efforts aimed at blocking access to tobacco products by those younger than 21…


“…in his ruling Leon acknowledged that the line between providing factual information—a legitimate government role—and seizing private property—in this case advertising space—to carry on a campaign of advocacy is “frustratingly blurry.”  “But,” the judge added, “Here the line seems quite clear.”

Multiple states including Virginia, Alabama, Pennsylvania and Idaho are voting on bills to require ultrasound procedures on all women who seek a first trimester abortion.  Some bills would require that the pregnant woman view the procedure, listen to the heartbeat and receive a copy of the “picture” of the fetus.

Several states have gone so far as to attempt to require the use of a “vaginal ultrasound” because that is what would provide the clearest “picture” and heartbeat in the case of many first trimester pregnancies.  This has sparked some of the sharpest debate because it’s an “invasive” procedure with limited therapeutic or diagnostic benefit.

And there has been sharp debate over the role the state should play in requiring procedures as a pre-requisite to a woman’s decision to have an abortion rather than leaving it, as the U.S. Supreme Court said in Roe v. Wade “between the woman and her physician”.

Virginia Senator Ralph Northam is a pediatric neurologist.  “That’s telling me and my colleagues how to practice medicine.” 

 And here’s a summary from the Pittsburgh Post Gazette on some of the other proposed legislation:

In Alabama, the sponsor of a bill to strengthen an existing ultrasound requirement said on Monday that he would seek a revision softening the bill.  The existing bill mandates that the screen must face the pregnant woman and requires use of the scanning method that provides the clearest image—which would mean vaginal ultrasounds in most cases.

The bills under active consideration in several states, including Pennsylvania and Mississippi, require detailed fetal images that would in practice require many patients to have vaginal ultrasounds.

In Mississippi, a bill working its way through committee requires and ultrasound that provides an image of high quality, which cannot be achieved with abdominal procedures in the initial months of pregnancy.  The woman must be offered a chance to see the image and hear the fetal heartbeat.  She cannot avoid hearing a description of the sonogram unless, among other things, she is a victim of sexual assault or incest or the fetus is medically compromised.


The Pennsylvania legislature is considering a law with some of the country’s strongest provisions.  It would require vaginal probes in many cases, display of the swcanning screen to the patient and a printout of the image for inclusion in the patient’s medical records.  It would also impose a 24-hour waiting period between ultrasound and abortion that critics say would be a burden for some women.

So, what does all this mean and how do these 2 things connect?  In both instances the government (one federal and the other state) are imposing upon people a requirement to deliberate in a certain way.

It is legal to smoke.  It is stupid to smoke.  The FDA is trying to require that purchases of cigarettes be exposed to graphic depictions of the potential results.  (Smokers already know those potential results).   This is government sponsored “scare tactics” and the government is trying to require the tobacco companies to foot the bill for it.

As far as the requirements of sonograms prior to an abortion, it’s pretty much the same thing.  State governments are attempting to dictate the manner in which a totally personal and private decision is made.

Here’s the “bottom line” as I’ve always perceived it when it comes to our personal freedoms and liberties:  “our freedom extends to the limits of our alternatives and no further.”  For an alternative to exist it must be viable and possible.  What I see government attempting to do here is to make these alternatives more onerous and difficult.

Most certainly, smoking is bad for individual health and the environment.  Nicotine is one of the most insidiously addictive chemicals known to mankind.  Government has not seen fit to declare it a substance on the same order as an opiate and ban its commercial sale.  What government would like to do is to intimidate people from smoking and force the companies manufacturing the product to foot the bill.  Seems to me that’s kind of like making Trojans pay to print an abstinence message on condoms.

These abortion statutes are nothing less than state sponsored intimidation and the imposition of a religious point of view disguised as a “Woman’s Right to Know”.  Some people have even gone so far as to suggest that it is state sponsored rape when it comes to vaginal penetration for achieving a “clear” sonogram.

I have long agreed with what Bill Clinton famously said about abortion, “it should be legal and rare.”

I get really worried when government at any level uses devious tactics to restrict liberty.  It’s not much different from the Jim Crow laws of the mid 20th century where poll taxes were imposed disenfranchising the poorest voters along with literacy tests and all sorts of other initiatives to deny the vote to African Americans.

It’s reminiscent of totalitarian regimes which brag about voter turn-out and the lop-sided victories of candidates.  Is an election in which there is only one candidate a free election?  Does the right to vote mean anything?  Are there alternatives (i.e. the ability to vote for this candidate over that candidate)?  Or is the alternative to vote and keep your mouth shut knowing that it is a hollow exercise?

This is an example of government thinking that it is oh so very clever.  The courts mandate and defend certain rights and legislative bodies come up with devious ways by which the “free exercise” can be denied.

How I deliberate is up to me.  It’s none of the government’s damned business. Whether I factor in that smoking may give me cancer or may produce second hand smoke is up to me.  Whether a woman has an ultrasound is up to her and her doctor.  It’s none of government’s business.

How I make up my mind for whom to vote is my own business.  The fact that I might read about candidates and their stance on issues compared to the person who says “I always vote straight ticket Republican or Democrat”  is irrelevant.  Our votes count the same.

Which takes me back to smoking issue.  It is within federal government’s power to establish a compelling interest to severely restrict or even ban the consumption of cigarettes.  This is an “executive powers” area.  The FDA hasn’t shown the will or gumption to do it.  And in an election year, it’s not likely that anyone will—with the exception of a Federal judge who has called the FDA to task for trying the type of back-handed approach that these state legislatures are taking with reproductive rights.

Our freedom extends to the limits of our alternatives and no further.  The actions of these legislatures would eliminate this alternative and eliminate this aspect of the “right to be left alone” by government. 

And that’s just flat out wrong. 

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I'm not proud of it but I smoke a bit over a pack a day and except for a twelve year break I've been smoking cigs for over thirty years. I drink between two to six beers a day. I love good wine and great whiskey. I can usually find affordable wine, but thanks to the yuppie pinheads, great whiskey is way the hell too expensive for my meager budget. I spend around $4000 a year on these vices over 70% of that is federal state and local taxes. I police my butts and recycle all cans and bottles. I never smoke around non-smokers and never drive under the influence, but if the feds declared nicotine an illegal drug, we'd end up with the same results we saw during prohibition and our endless "War on Drugs." The government would lose revenue and organized crime would reap exorbitant profit.

The judge and the state legislators are all full of crap about their Interpretation of the First Amendment and when the legal challenges reach higher appellate and the US Supreme Courts, all of this BS will get overturned. In this country, as case law currently stands, no government agency can require any unnecessary medical procedure upon any citizen nor individual without a demonstrated compelling need to protect public health.
That's the law.
I have always held that if the government really wanted people to quit smoking they would make it illegal. Of course then they would have to give up all the taxes they normally collect on a package of cigarettes, but they would at least be putting their money were there mouth is.

As for the ultrasounds.....that is just emotional blackmail, plain and simple and it's just wrong.
Mac--thanks. Like you I know the dangers of smoking. If it were easy to quit, I wouldn't have been a smoker for 37 out of the last 40 years of my life.

David--thanks. My point in all this is that the steady erosion of the viability of an alternative is a scary proposition. I don't see it as some benevolent legislator or administrator trying to protect us from ourselves but rather trying to control how we act and think and speak in ways that are just none of their business.
This one got me HOT, Walt, thanks. The government has made billions off the cigarette taxes that they have collected over the years, but I guess the health lobby pays more somehow. But what pisses me off is the government thinking they can violate a woman's body for no reason but to change her mind about an abortion. Of course, see the baby, hear the heartbeat, then have the baby, and this same government then refuses to help the child after it's born. Hypocrites all. Sending men to their death for profit, but Thou Shalt Not Kill when it comes to abortion. This really hit a nerve and I could do a post here and now. But, I won't. Great Post and great points Walt.
Scanman--thanks. Most of the legislators behind these bills are men. One even had the damn gall to suggest that the vaginal sonogram should be mandatory to cause the woman pain and discomfort as a deterrent to abortion. Geesh.
ScanMan, Mac and David--still, what concerns me the most is government making efforts to dictate HOW we go about making a decision which is private and personal. That is a perilous path and is a greater danger to our freedom for it seeks to erode rights, to restrict and constrict them so that they diminish and ultimately disappear. Combine that with the economic strangulation going on and it's scary times my friends.
Steve smokes a pack a day. In Canada we have had the most disgusting picture of rotten lungs etc on our packages for years. When you walk into a store to buy them you cannot see them They are locked up in closed shelves so you have to ask for a pack. It;s the law. They figure if you cannot see them you won't want them.
People still smoke. I never have.
Linda--Thanks. So Canada's restrictive laws haven't been much of a deterrent. Again, to me the import of all this is government taking onerous restrictive action to attempt to compel a particular choice. If the product is that bad and dangerous then ban it. Problem solved.
Excellent comparison, I never would have made the connection but it is there. Sooner or later these state laws used to belittle women will end up with the Supremes, I wonder how they will see this invasion of the patient-doctor privilege. It is something of a 1st amendment issue, we need to be protected from all of those crazy Southern Baptists who want us to smoke their tobacco but don't want us to have sex, or something like that.
Hi Walt. Excellent post. Nicely laid out comparison of the two issues.
Marty'sHusband--Thanks. There are things that worry the bejesus out of me and this is one of them because it's always rationalized as "just" making sure that the information is available. We know from experience to we wary anytime the word "just" in used in this context--it has been used repeatedly throughout human history as a justification for abuse and control and it scares me when government does it for our "protection"

D.Horne--the connection in my mind is clear but it's a bit difficult to communicate because these 2 issues are so disparate and are manifesting themselves differently. Alternatives and the absolute freedom to decide to do or not do, act or not act are the entire foundation of what we know as freedom (at least to my way of thinking--and it's what I wrote a master's thesis on 35 years ago). Thanks for reading and commenting.
I'm afraid I have to disagree. I'll admit my opinion is shaded by the fact that I lost my grandfather, grandmother and father to smoking related diseases, and one day soon I will lose my wife of 27 years to lung cancer.

You say "governments are attempting to dictate the manner in which a totally personal and private decision is made". It's not quite so simple as that, for while smoking may be a personal and private decision, the consequences are not limited to the individual who chooses to smoke. Trust me on that one. And if you've ever witnessed first hand the industry that's grown up around lung cancer treatment, you'll understand that each of us pays a heavy price, one way or another, for somebody's "personal" decision.

The judge is simply wrong in this case, as were the judges in Citizens United. The government's power to regulate is virtually limitless where the case can be made for the greater good. And as the financial fiasco makes plain, it isn't a excess of govt regulation that's the problem, it's the absence of good regulators.
Tom, we will have to disagree on this one. The government has it in its power to eliminate the scourge of using tobacco to ingest the drug nicotine. David Kessler while head of the FDA attempted to do this when he tried to designate cigarettes as a "drug delivery device"--somewhat similar to syringes which the government regulates in order to reduce IV/IM drug use.
What government needs to do is designate a "compelling state interest". However, the industry of tobacco which has roots both economically and politically which go back 200 years continues, somehow or another, to have the muscle to preclude this from happening.
Interestingly, this same judge granted an injunction several years back that sought to designate "e-cigarettes" as a drug delivery device and required that they be classified the same as tobacco.
My point is simply this--and it is where I agree with this judge (at least for now)--what the FDA was trying to do was intimidate, coerce and scare tobacco users into quitting and require that the tobacco companies pick up the tab for doing it.
On it's face it's silly if for no other reason than it will not serve as a deterrent to those who are addicted to nicotine delivered by a tube of paper containing tobacco--which often is still (illegally) dosed with extra nicotine to assure a consistent "buzz".
I have a problem here with government attempting to dictate the manner in which one decides to purchase or not purchase this product in the same way that I have an issue with government attempting to compel a certain kind of deliberation prior to a woman having an abortion.
The abortion issue has always been rife with the debate as to when life begins. The tobacco issue has always been rife with debate as to the deleterious impacts of the manner in which nicotine is delivered.
What I am doing is relating to a different dimension of each of these 2 issues and that is unwarranted government intrusion into the manner in which a personal/private decision is made.
This is scary in far more ways than these 2 issues.
With abortion, the Court has made its reasoning clear that this is a decision between a woman and her physician.
With tobacco, it is within the government's purvue to designate the drug delivery system and either severely regulate it or ban the delivery of the drug through burning tobacco altogether.
I'm not fool enough to think that horrific pictures on cigarette packages would stop all addicts from smoking, but if it stops one addict from smoking, it's a small price to pay. For tobacco companies to suggest this is somehow a freedom of speech issue is as absurd as to suggest corporations are people.

Not to belabor the point, but as I said, given the economic and social cost, the govt does have a compelling interest in this matter. You're quite right that in a perfect world, the govt would simply treat nicotine as it does heroin or cocaine. We do not live in a perfect world.

For the reasons you allude to, banning tobacco products is a non-starter, at least for the foreseeable future -- and the experience of Kessler is ample proof of that. And the fact that Kessler at least tried makes any discussion about the govt wanting all that tax money a red herring of the worst sort. In fact, if taxes were doubled it wouldn't begin to offset the costs of smoking.

Since and outright ban isn't likely for now, it is reasonable to suggest the govt has a right to employ any and all other means necessary to reduce consumption of a harmful drug. Seems to me placing ugly pictures on a package places no great burden on tobacco companies, and I suspect a majority of citizens would agree with that assessment. So what's really at issue here is that this particular judge disagrees with this particular means.

That leads me to a final point. Beyond tobacco, there is a much larger issue at stake here. When the law becomes the object of ridicule in a nation of laws, when judges issue rulings that defy common sense, the law itself becomes a victim -- as do the citizens of such a nation.
Ah the neverending rage to control..........causes ulcers.
Dr. Lee--thank you. yes, I would say that oftentimes government is not satisfied with controlling or not controlling but in governing the manner in which control or lack of control is exerted.