When Healthcare Goes up in Tobacco Smoke: A Selective Healthcare System from a (European) Human Rights Perspective

This contribution sets out to answer the question to what extent fundamental rights may act as a constraint for states to employ lifestyle differentiation, particularly between smokers and non-smokers, regarding the access to their healthcare systems. In human rights treaties a tension is palpable between the obligations of states, which represent the general interest, and the rights of smokers, who attempt to hold on to their individual freedom. On the one hand, states have to guarantee the health of their citizens. On the other hand, they are unable to mandatorily enforce health standards as smokers do not have to tolerate unbridled state interference in their private lives. However, this right to self-determination is not absolute. If the smoker persists in using tobacco products, states are granted a broader margin of appreciation in their socio-economic obligations, which in itself is already wide, out of respect for that individual choice beyond their control. As a result it is possible that a state differentiates between lifestyles and imposes mandatory conditions for the right to healthcare, which require smokers to alter their behaviour, even though the right to healthcare should be guaranteed to all without discrimination. For example the Belgian state explicitly settles the tension between the individual and the general interest by viewing the solidarity of the social security system as a double-edged sword. Every individual, including smokers, has to contribute to the realisation of equitable rights for all. With rights, come responsibilities. As always, however, state interference has to be proportional to the desired, legitimate goal.