Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence

By Lugosi, Charles I. | Issues in Law & Medicine, Fall 2006 | Go to article overview

Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence


Lugosi, Charles I., Issues in Law & Medicine


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. …

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