CHARLESTON W.Va. (WVDN) – In West Virginia, where nearly a quarter of residents report using tobacco — the highest rate in the nation, per the Centers for Disease and Prevention — and lung cancer diagnosis rates outpace that of every other state, lawmakers have attempted for a decade to limit exposing children to secondhand smoke in vehicles.
Despite bipartisan support and medical consensus on the dangers of secondhand smoke, those efforts have failed year after year. Since 2014, neither House nor Senate versions of the legislation (which differ slightly) have passed their chambers or even made it out of committee.
The loudest argument against the proposals repeatedly revolves around the civil liberties and rights of parents to expose their children to what they see fit. It’s a sentiment that only seems to apply in certain cases in the West Virginia Legislature; the same lawmakers who have voted down the smoking bill on this argument have voted in support of laws to limit what medical services — including abortion and gender affirming care — parents can sign off on for their children.
“I don’t believe this is a partisan issue — the opposition comes from a civil liberties standpoint and there’s no better word to use for that argument than hypocritical,” said Del. Mike Pushkin, D-Kanawha. “It’s hypocritical. That’s all there is to say about it. This Legislature has paid a lot of lip service to the lives of children. What I’d like to know is why, over and over, they don’t apply that care after the child is born.”
From 2018 to 2021, Pushkin along with Del. Matt Rohrbach, R-Cabell, sponsored a House version of the bill that would have implemented a $25 fine for people who are caught smoking in the car with a child under eight if they are already being pulled over for another moving violation.
Rohrbach, who chairs the House Committee on Health and Human Resources and who is a doctor by trade, said it’s difficult but necessary to balance personal rights and their undeniable impacts on public health.
“It’s really complicated — if people want to do bad things to their health, I guess to some degree it’s their right to do it. But here you have children who don’t really have a say in the matter that are also caught up in inhaling the secondhand smoke,” Rohrbach said. “I think that’s where the state has a compelling interest to act. We know very well today what health risks come from repeated, long-term exposure to cigarette smoke, especially for younger people.”
In the Senate, Majority Leader Tom Takubo, R-Kanawha, has annually since 2017 introduced a bill similar to the House’s. The proposed Senate version — Senate Bill 378 for the 2024 session — would impose a $25 fine also as a secondary offense, but would apply when children under 16 are in the vehicle. So far this session, the bill has been introduced in the Senate and is awaiting consideration in Senate Health, where Takubo serves as vice chair, before being referred to Senate Judiciary, where it has previously not been brought up for a vote.
The bill, annually, is a source of contention when it makes it to committee even as it passes Senate Health nearly every year. There, Sen. Mike Azinger, R-Wood, has for years argued against settled science documenting the dangers of secondhand smoke as well as whether the state has a right to dictate what parents can expose their children to. Azinger did not respond to requests for comment for this article.
“This is just a bad bill,” Azinger said in a 2022 Senate Health committee meeting. “I don’t care what folks think about cigarettes and all that, but this is a violation of parental rights. I have a God-given right to be sovereign over my children — I’m their authority, my wife and I.”
For Takubo, the bill represents what has become an ongoing question in the Legislature: when does one person’s right to personal liberty infringe on another person’s?
“It’s the question of individual freedom versus freedom as a whole,” Takubo said. “I will always support personal liberty, personal freedom, but there is a point where we have to accept that our freedoms and liberties do affect others.”
Pushkin described the conundrum with a popular quote credited to former U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.: “Your right to swing your arms ends just where the other man’s nose begins.”
“This is just common sense,” Pushkin said.
Despite claims by lawmakers that attempt to undermine the severity of secondhand smoke exposure, the science is settled in the medical community. Per the CDC, people who do not smoke but who are exposed to secondhand smoke are 20-30% more likely to develop lung cancer as adults.
“It’s hypocritical. That’s all there is to say about it. This Legislature has paid a lot of lip service to the lives of children. What I’d like to know is why, over and over, they don’t apply that care after the child is born.” – Del. Mike Pushkin, D-Kanawha
Takubo has seen this firsthand. His repeated attempts to pass the bill stem from a promise he made years ago to one of his patients, a woman who never smoked in her life but only had 50% lung capacity because of secondhand smoke exposure, often in the car, when she was a child.
“There’s no argument to be made, no denying the fact, that secondhand smoke kills,” Takubo said. “It’s not just cancer, either. It’s allergies and asthma and a bunch of other conditions that affect people’s quality of life.”
In 2021, as Takubo was yet again trying to get support for his bill, he received a letter from a man in his 70s, thanking him for the effort. The man grew up in Mingo County in the 1940s and 1950s, where he said “it seemed like everyone smoked.”
“Our home was full of smoke. Riding in the car was a nightmare for me,” the man wrote. “Today (I’m 76 years of age), I suffer from allergies and asthma — cigarette smoke makes me vomit, among other things. My brother died of lung cancer and brain cancer. My sister died of emphysema. So, Dr. Takubo, I believe that the passage of your bill can save lives and suffering.”
Pushkin’s push for the bill was also inspired by a constituent. Years ago, a student visiting the Capitol told him she’d like to see the Legislature act to stop smoking in cars with kids.
“It’s sad to think that now, it’s been so long that we’ve been working on this, that student has probably graduated college,” Pushkin said. “There’s no good reason something so obvious should take so much work to get through.”
Takubo said he learned early in his political tenure not to get frustrated when bills he supports or sponsors don’t move. Even introducing and entertaining the legislation, he said, can bring awareness to an issue and start conversations.
“You’ve got to keep throwing stuff at the wall, over and over, and eventually something will stick,” Takubo said.
It’s not the first time — and likely won’t be the last — that West Virginia lawmakers struggle to gain support for obvious public health interventions. In the 1970s and 1980s, some legislators worked for years to pass a seat belt law. They stood against a faction of lawmakers — Republican and Democrat — who fundamentally opposed the state’s authority to tell them what to do in their own vehicles. The laws proposed in West Virginia to make seat belts mandatory were very similar to those trying to curtail smoking in cars with kids: penalties could only be levied as a secondary offense during a traffic stop and the fine was a $25 ticket (nearly $80 in 2023).
Forty years later, the benefits of seat belt laws aren’t up for debate. Both in West Virginia and nationwide, fatalities in car wrecks drastically reduced as seatbelt laws became the norm.
“I bought a new car recently and if you don’t have the seat belt buckled, it won’t go out of park. That’s how far we’ve come,” Rohrbach said.
This year, Takubo is continuing his efforts to educate on prevention and treatment for lung disease. He said he plans to introduce a bill that would create a state fund to cover the costs of noninvasive screenings for lung cancer for all residents, no matter their insurance status.
Early detection is lifesaving when it comes to lung disease, according to the American Lung Association. Survival rates for lung cancer skyrocket from 8% when it’s caught in its late stage to 63% when it is caught early enough with interventions. In 2022, however, less than 5% of Americans at high risk for developing lung cancer underwent screenings to catch it.
Improving the rate of screening and early detection for such diseases would help West Virginia in myriad ways, Rohrbach said. The health impact is obvious, but the lesser known benefits include improving economic development, lowering health care costs and investing in West Virginians.
“We need to promote things that lead to a healthier population, not just things that save money, but that is a positive. I’m firmly convinced that the number one way to get health care costs down — something we are really struggling with here in West Virginia and beyond — is to have a healthier community,” Rohrbach said. “You’ll never get me to not advocate for things that promote health, and this, without any doubt, is health.”
This article originally appeared on West Virginia Watch.
“West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com. Follow West Virginia Watch on Facebook and Twitter.”
