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Spring 1999                               ARTIFICIAL FLUORIDATION                            page 239

expressly 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

Therefore, 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
Meanwhile, 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. On 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
The proceedings began with a presentation by a special counsel of the American Dental Association.211 The 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

page 240                    J. LAND USE & ENIVTL. LAW                             [Vol. 14:2]

of the 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.

Another 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 pitches continue 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.

We understand 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,


One of 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,

Footnote references for pages 239 and 240 above:

207. Safe 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 US. 801(1984).

208. See id. at 192-93.

209. See, e.g., HENRY HALLAM, CONSTITUTIONAL HETORY OF ENQ.AND 299-300 (Garland Pub. 1978) (1846).

210. The proceedings were recorded vebatmi m FLUORIDATION: LITIGATION & CHANCING PUBLIC POLICY, (Michael W. Easley et al. eds 1963) [hereinafter CHANGING PULIC POLICY].

211. See id.at 3-11.

212. See id. at 3.

213. See id. at 5-6; see also Illinois Pure water Comm., Inc. v. Director of Pub. Health. 470 N.E.2d. 988,989 (Ill. 1964).

214. CHANGING PUBLIC POLICY, supra note 210, at 84.

215. See National Cancer Program, supra. note 109, at 319.

Full Text (edited and re-published in PDF) available at:
Univ Florida College of Law > Journals > Land Use >:   http://www.law.fsu.edu/journals/landuse/142.htm
Or directly here:
VOLUME 14        SPRING 1999         NO. 2 

  • Highlights in North American Litigation During the Twentieth Century on Artificial Fluoridation of Public Water Supplies. 

  • Jack Graham and Dr. Pierre Morin

    Click Here for Full PDF Document|    (or here for local storage of pdf file)
    NOTE: The PDF document provided here has been updated by the author after final student editorial review. Thus, this PDF document may differ slightly from the original, published article in Volume 14.2 of the Journal of Land Use and Environmental Law. Please cite to the published version... 

( For Comments, Notes and Reviews; go to: http://www.law.fsu.edu/journals/landuse/142.htm )
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