Anticloning Laws Violate the Equal Protection Guarantee

Abstract

Chapter 10 established that laws against human reproductive cloning discriminate against human clones, a suspect class. That human clones will experience injuries substantial enough to give them the standing to bring an equal protection challenge to such anticloning laws was explained in Chapter 11. This chapter presents the final link in the chain of analysis. Even if anticloning laws discriminate against a suspect class, it does not automatically follow that the laws are invalid because no constitutional right is absolute. Given that a suspect class is involved, however, the courts must subject the anticloning laws to the most rigorous level of judicial review, which is known as strict scrutiny. If the laws cannot survive strict scrutiny, they are unconstitutional and invalid as written or applied. Strict scrutiny has two prongs. First, the law must serve a compelling governmental interest; second, the law must be narrowly tailored to serve that interest. In other words, the government must advance its compelling interest by the least restrictive means available. This chapter considers whether any of the five objections present a compelling reason to ban human reproductive cloning. Also addressed is whether anticloning laws advance governmental interests by the least restrictive means available, as strict scrutiny requires. In the interest of clarity, the constitutional analysis is organized consistently with Parts 1 and 2 of this book.