When “freedom” kills
Among the many reflections stirred by the SARS-CoV-2 pandemic, the vexed debate of balancing personal freedom and health protection has prevailed. The restrictions imposed by the political decision-makers to protect the common welfare of the community have also had repercussions on the psychosocial and economic levels. Then, at the end of January, of Antonio Scurati, who published in the Corriere della Sera journal the question regarding the decision of the Municipality of Milan to ban outdoor smoking .
Despite the reasons of qualified men of Science, to justify the rationale of this type of measures in favour of public health,  the writer remained on his own. He defined himself as a “vicious reveller smoker” by interspersing expressions such as “smoking vice”, “act of sovereign pleasure”, and “vice of free thought”. In essence, the writer Scurati rises up against the idea that the City of Milan, in order to produce an ecological future, must impose the forced renunciation of individual freedom, and above all of what in no uncertain terms are defined as the “pleasures of life”.
And here is the re-emergence of that form of perennial conflict between myth and reality. The act of smoking has been heavily charged with emotional meanings that have entered the folds of human life to the point of denying reality. Its language detaches itself from the value of concreteness to assume that of identity: “I am a smoker”. From this perspective, the damage that smoking, which kills eight million people in the world every year, causes to humanity, and the fact that nicotine creates the most fearsome form of addiction known,  appears to be of little significance. They are notions that belong to researchers and men of science, as if they were aliens, thousands of miles away from the world of legitimate and enjoyable “human vices”.
Yet, it is precisely that dependence that progressively and relentlessly deteriorates Free Will, the true freedom to decide for the best of one’s own destiny and for the environment, in the light of the scientifically documented damage .
In this scenario, on the one hand there is the smoker who in a sort of cognitive-behavioural dissociation loses his free will, not at all threatened by scientific evidence on the danger of smoking, and on the other hand there is the great multitude of those who avoid smoking like the plague, who have the right not to be subjected to the harmful effects of involuntary inhalation, as scientific evidence shows. In a word, the Right to Health solemnly enshrined in Article 32 of the Italian Constitution: “The Republic protects health as a fundamental right of the individual and in the interest of the community, and guarantees free care to the indigent” .
The formula adopted shows the final objective of the legal system, which aims to protect health as a collective and essential benefit for the value and economic growth of a Nation. By definition, health represents a state of physical, mental and social well-being, therefore subject to special protection by the administrative system of a State, in order to ensure its citizens, protection from harmful environmental factors and from any harmful action caused by third parties who may hinder its enjoyment .
In addition to being a subjective and individual right, the protection of health consequently constitutes an interest for the community, beyond the elevation of individual dignity, an economic prosperity in which to invest. Good health means saving resources in Public health.
The guarantee of rights is also expressed by Article 2 of the Italian Constitution, while Article 3 establishes the equality of all citizens. From the combined reading of these articles, it is easy to deduce that Health has an erga omnes value, an absolute and priority condition.
It is the protection of collective health which, within the limits imposed by the law and in respect of the human person, may entail the legitimate sacrifice of individual health. This is the case of mandatory health treatments, vaccinations and the laws governing road safety, as well as the production and sale of food products, tobacco products and smoking bans. If the freedom to smoke were inviolable, it would be like liberalizing murder. Because second-hand smoke kills. It could be argued that the State allows suicide by allowing the sale and consumption of tobacco. Unfortunately, the evidence that documented the unambiguous damage came very late, when cigarettes had already invaded the market in every nation in the world. However, we can currently prevent damage from being caused to third parties.
It is at this point that Freedom collides with Law and it is precisely freedom that must give way. A citizen can choose not to get vaccinated but on condition that it does not harm the right of other citizens not to be infected. State and health institutions have the duty to fulfil all the conditions so that this does not happen. The law intervenes with constricting gradualness. The more a behaviour creates damage to others, the more it must be contained and sanctioned.
It is suitable for smokers, for the “no vaxers”, for the alcoholics, for those who exceed speed limits. The Constitution therefore rejects any idea of freedom disguised as alleged “right to smoke “by fomenting protests against the hated” anti-smoking laws that have followed one another and were regularly aborted in the first 50 years of the Republic. The tenacious and powerful tobacco lobbies, well rooted and present in the Parliament of every Nation, carry out constant work in this direction of regulatory conflict, which was intensified before, during and after the approval of the “Sirchia law”. That article 51 of Law No. 3 of 2003 on the Public Administration, which came into force from zero hour on January 10, 2005, was one of the most important rules to guarantee health for non-smokers, a large majority harassed by the smoking minority. The role and the ability of the Minister was to have created that paragraph of Article 51 immediately and to have it inserted and approved by Parliament, as a Trojan horse, in the Law on Public Administration .
As Girolamo Sirchia has repeatedly reiterated, his law is not prohibitionist or liberticidal, as was claimed by many. It only put the health of non-smokers first, also welcoming the freedom of those who smoke, provided that they do so in special dedicated spaces, where possible and according to precise rules. So wrote, secularly, in one of his editorials, in those convulsive days, Guglielmo Pepe, then director of the Health insert of the journal LaRepubblica: “A hypocritical controversy because it appeals to liberal principles, which are deformed for their own use and consumption [...]. But what freedom? It is pure arrogance that of those who claim the possibility of smoking always and in any case, in spite of rules, rules and fines. Our individual freedom has boundaries that must not be crossed. Whoever does it must know the consequences and pay the prices“, whilst the jurist Ugo Ruffolo wrote about it in the journal Il Resto del Carlino: ”Code in hand, the norms of Sirchia are unassailable. The complaint of unconstitutionality is frankly laughable. And the possibility of an abrogative referendum is equally implausible. This time the smoke lobby has to give up” .
In fact, the concept of welfare state was surmounted by that of welfare community, that is, from the idea of a state that gives assistance and well-being, to that of an entire community that contributes to it and takes responsibility for it, placing the Right to health for those who are aware of the risks of smoking. In short, a question of respect, as Michele Serra greeted: “The law is welcome, therefore, which helps us to become educated at least in this. And never mind if someone will outrageously rail against the notorious Ethical State, accusing it of telling us what to do: in this case, the State tells us only what we must not do to others. And if this is ethical, then patience” . With all due respect to Scurati’s “free thought”.
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