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found that a fair preponderance of the evidence showed 'the injection of
fluoride into the City's water system would be harmful,"207 but,
with the full support of higher tribunals, that such
proof of harm was not enough to arrest an exercise of police power.208
it is evident that, at least for the time, we are saddled with Hugo
Black's positivist and anti-libertarian doctrines, and
some years must pass before our judiciary see the need for a change of
course. Years must pass as surely as years had to pass from the death of
Sir John Elliot following his arrest in 1630 for a speech in Parliament,
and the grand day in 1667 when the House of Lords reversed the judgment
of the Kings Bench which denied Sir John release on a writ of habeas corpus.209
the findings of Judge Flaherty, Judge Niemann, and Judge Farris have since
been quoted to legislative bodies from Montreal to Honolulu and from London
to Canbarra. Not always, but occasionally legislators have listened.
There has been
other interesting political fallout from these judicial findings.
August 9-10, 1983, a strategic conference of pro- fluoridation activists,
most of them deeply involved in ADA and USPHS politics took place at the
University of Michigan.210
began with a presentation by a special counsel of the American Dental Association.211
gentleman was introduced as a member of the rules committee of the Illinois
Supreme Court, so it is clear that he was a powerful insider.212
He told the audience that it was he who had secured the stay of the injunction
from the Illinois Supreme Court issued by Judge Niemann213
Counsel did not clearly
inform his listeners that, from 1978 through 1982, three American judges
in courts of superior jurisdiction had fully heard evidence on both sides:
the first of these judges, by then a supreme court justice of eminent standing,
entered find ings undisturbed on appeal, saying he was compellingly convinced
J. LAND USE & ENIVTL. LAW
danger of cancer; the second entred finding of no credible or reputable
evidence to redeem fluoridation; and the third had entered comprehensive
findings based on a preponderance of the evidence, expressly sustained
on appeal, condeming fluoridation as posing a tangible danger of cancer
and a good many other human diseases, while expressing doubt evan of its
capacity to reduce tooth decay.
speaker at the University of Michigan announced a significant change of
litigation policy to perpetuate and expand fluoridation in future years.
Whereas in earlier years it had been standard practice to invite trials,
as had occurred in a number of earlier fluoridation cases, a new policy,
following the trials in Pittsburgh, Alton, and Houston, was announced:
"By avoiding a trial on the merits of fluoridation, we prevent the subjection
of what we feel is a purely scientific issue to scrutiny by a judge who
is likely not to have proper scientific training with which to make an
objective ruling."214 To recapitulate this interesting phase
of legal and scientific history, in the trials in Pittsburgh, Alton, and
Houston, one trial judge after another heard the evidence and found that
fluoridation appears to be injurious to human health. Therefore,
the new ADA-USPHS policy is to avoid, by all means, a trial on merits.
This policy has
been remarkably successful for over fifteen years.
No case has ever
gotten to trial. No
pro-fluoridation witness has ever been cross-examined in court. Sales
before legislative bodies with a fair degree of success in the sense that
mandatory or imposed fluoridation has considerably expanded. In legislative
committees, witnesses usually cannot be effectively held to account for
what they say.
that the judicial process is far from perfect. But, now, the 'purely scientific
issue' mentioned at the University of Michigan -and fluoridation is a purely
scientific issue until legally imposed -is tried in legislative
proceedings by frantic political lobbying, maneuvers, ambushes, speechifying,
applause, horse-trading, buttonholing, demagoguery, infighting, and posturing,
THE COMING END OF FLUORIDATION
the results of the hearings in Congress on September 21 and October 12,
1977, was a suggestion that the National Toxicology Program (NTP) should
investigate fluoride.215 Over twelve years,
for pages 239 and 240 above:
Water Found. of Tex. v. City of Houston,. 661 S.W.2d 190, 192 (Tex. App.
1983), writ ref d n.r.c. (Tex. 1964), appeal dismissed 469
e.g., HENRY HALLAM, CONSTITUTIONAL HETORY OF ENQ.AND 299-300 (Garland
proceedings were recorded vebatmi m FLUORIDATION: LITIGATION & CHANCING
PUBLIC POLICY, (Michael W. Easley et al. eds 1963) [hereinafter CHANGING
id. at 5-6; see also Illinois Pure water Comm., Inc. v. Director
of Pub. Health. 470 N.E.2d. 988,989 (Ill. 1964).
PUBLIC POLICY, supra note 210, at 84.
National Cancer Program, supra. note 109, at 319.