Anticloning Laws Classify Human Clones and Are Subject to Strict Scrutiny

Abstract

The Fourteenth Amendment provides that no state shall deny any person within its jurisdiction the equal protection of the laws. The Equal Protection Clause has been described as a direction that all persons who are similarly situated should be treated alike rather than differently. Although the Fourteenth Amendment does not apply to the federal government, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. The U.S. Supreme Court has held that this Due Process Clause proscribes unjust legal discrimination. Federal laws that classify individuals in a manner that would offend the Equal Protection Clause will be struck down on Due Process grounds, and the basic analysis and standard of judicial review is the same. Therefore, for convenience's sake, I will use the phrase “equal protection guarantee” to describe the protection against discrimination that the Constitution grants to any person residing in the United States under both the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. How is the equal protection guarantee relevant to a discussion of anticloning laws? This chapter answers this question in two steps: (1) it explains how such laws classify human clones and (2) it argues that this legal classification is suspect and triggers strict scrutiny under the equal protection guarantee. Anticloning Laws Deliberately Treat Human Clones Differently from Humans Born through Sexual Reproduction On their face, laws that ban human reproductive cloning do not classify human clones.