More than 10% of obstetrics-gynecology doctors in a recent survey refuse to accept patients who are too fat. While there have been instances in which doctors decline to perform operations on patients who refuse to quit smoking, the two situations different from a legal point of view, says the man behind using legal action as a weapon against the problems of smoking and obesity.

First, people who are obese may qualify for protection under the Americans With Disabilities Act [ADA], as well as under state statutes which prohibit discrimination based upon weight or personal appearance. In sharp contrast, smokers are not protected against this type of treatment under any statutes, says public interest law professor John Banzhaf, who pioneered the use of the ADA to protect nonsmokers from exposure to tobacco smoke in workplaces and public place.

Second, the federal government has officially classified obesity as a "health status" which is a protected category under certain health care statutes, and as a "disease" under others. On the other hand, the government has ruled that being a smoker is only a "behavior" entitled to no such protection. As one consequence, federal law permits charging smokers higher health insurance premiums without any limits, and even if the policy is not part of a wellness program meeting federal standards, whereas the same is not true for the obese.

Third, patients who need an operation can quit smoking in only a few days to qualify for the procedure, even if they return to smoking once they are discharged from the hospital. On the other hand, many obese patients cannot safely lose enough weight even over weeks or months, during which they could die or suffer other serious complications if the operation is not performed promptly

Fourth, many people still believe (correctly or not) that obesity is often caused by heredity, genes, childhood eating, and other factors over which adults have little if any control. On the other hand, most people see buying and using cigarettes as a habit or a choice, making it easier to justify a medical exclusion policy for the small percentage of Americans who still smoke.

Fifth, although there is evidence that for many people smoking involves addiction, that addiction is to the drug nicotine, not to the act of smoking itself, which is a behavior. Because those who desire to quit smoking (e.g., for a medical procedure) can ingest nicotine from nicotine gum, nicotine patches, nicotine spray, nicotine inhalers, and e-cigarettes, their decision to ingest it by smoking rather than by using nicotine replacement products is a choice. Since it is a choice rather than an addiction, disease, or health status, it seems more legally justified to restrict access to medical care to smokers than to the obese.

George Washington University Law School