Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

Issues in Law & Medicine, Fall, 2006 by Charles I. Lugosi

ABSTRACT: The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so.

Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood.

There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.

   I am certainly not an advocate for frequent changes in laws and
   constitutions. But laws and institutions must go hand in hand with
   the progress of the human mind. As that becomes more developed, more
   enlightened, as new discoveries are made, new truths discovered and
   manners and opinions change, with the change in circumstances,
   institutions must advance also to keep pace with the times. We might
   as well require a man to wear still the coat which fitted him when a
   boy as civilized society to remain under the regimen of their
   barbarous ancestors. (1)

Since fetuses and embryos on an objective modern scientific basis are human beings, it may be argued that it is morally wrong to deny unborn human beings the status of personhood. (2) If it is accepted, as I believe, that the unborn members of the human species are human beings, then it is arguable that as human beings they are natural persons as a matter of law. If all this is true, I contend that it is immoral and legally wrong to exclude the unborn human being at any age prior to birth from the constitutional meaning of person under the Fourteenth Amendment to the U. S. Constitution. It is my position that American constitutional law will not conform to the rule of law, and will fail to honor the basic doctrines of equal protection under the law and substantive human rights, until the legal meanings of "human being" and "person" are identical and are mutually recognized as a matter of constitutional law when a new human being is created at the time of conception.

Denial of constitutional personhood to the unborn human being segregates an entire class of the human family making the unborn human being legally separate and unequal to those members of the human family who have been born. The result is that only those wanted children who are chosen to live and who are in fact born become legally recognized as a person following a live birth. For it is birth that marks the current legal boundary when a legal person is recognized in the United States of America, and bestows the constitutional rights of life, liberty and citizenship.

Unlike legally recognized persons, the unborn members of the human family who are not chosen for live birth have a different destiny. These unborn human beings are non-persons in law, and as such, are subject to the will of physically mature and legally empowered persons, normally their mothers. As non-persons, these unborn human beings risk treatment as commodities and property, for they are not legal constitutional persons. Their physical body parts, such as fetal brain tissue, may be harvested as living commodities for use in commercial scientific experiments designed to cure diseases of mature persons, such as Alzheimer's disease. Many non-persons are thus destroyed and forced into the role of disposable slaves designated to advance medical, reproductive and scientific goals such as embryonic stem cell research and cloning. Other non-persons who are the product of in vitro fertilization (IVF) are created outside the human womb and will also never be born, for millions of these non-persons are frozen indefinitely until used for science or ultimately discarded.

Non-persons have no constitutional right to life. Prior to birth, all non-persons, both wanted and unwanted, have no legal rights other than those specifically bestowed by positive law. Prior to actual birth, a non-person's destiny may change at any time. An unwanted human being may become chosen for birth, and a previously wanted human being may become unwanted. Even after birth, there are no guarantees that constitutional personhood will endure, for a transition from person to non-person is possible, if positive law and legal definition makes it so.