Address Service Requested Address FALL 2006/SPRING 2007 FALL Terre Haute, IN • 47807-3510 Terre 3 South 6th Street Inc. the Medically Dependent & Disabled, for of the National Legal Center A Publication & MEDICINE LAW ISSUES IN ISSUES IN LAW & MEDICINE Conforming to the Rule of Law: When Person and Human Being Finally VOL. 22, NOS. 2 & 3 Mean the Same Thing in Fourteenth Amendment Jurisprudence Charles I. Lugosi, LL.B., LL.M., M.B.E., S.J.D. ISSUES IN LAW & MEDICINE ISSUES IN LAW Terre Haute, IN Terre Permit No. 165 Nonprofit Org. Nonprofit U.S. Postage PAID VOL. 22, NOS. 2 & 3 FALL 2006/SPRING 2007 A Publication of the National Legal Center for the Medically Dependent & Disabled, Inc., and the Horatio R. Storer Foundation, Inc. A peer-reviewed publication of the National Legal Center for the Medically Dependent & Disabled, Inc., and the Horatio R. Storer Foundation, Inc. EDITORIAL POLICY Editor-in-Chief James Bopp, Jr., J.D. 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ISSUES IN LAW & MEDICINE CONTENTS Preface .................................................................................................iii Article Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence …………………………… 119 Abstract …………………………………………………119 I Dividing Human Beings into Persons and Non-Persons 122 A. Human Being ………………………………………123 B. Person ………………………………………………125 II Dehumanizing Humans with Personhood Theories … 127 III Segregationist Theories Acquire the Force of Law …… 133 IV The Liberal’s Dilemma ………………………………… 142 V Equality and Self-Evident Truths ……………………… 148 VI No Justice Is Possible Without Morality ……………… 153 VII Defi ning the Rule of Law ……………………………… 154 VIII Mislabelling Rule by Law as the Rule of Law ………… 155 IX The Genesis of the Rule of Law in America …………… 160 X How Human Slavery Ruined the Rule of Law ………… 163 XI When Unborn Human Beings Were Persons ………… 172 XII Pre-Roe American Abortion Jurisprudence …………… 180 XIII When Feminists Opposed Abortion ………………… 184 XIV Attempting to Restore the Rule of Law: The Fourteenth Amendment ………………………… 185 XVI Artifi cial Persons Gain Protection Under the Fourteenth Amendment …………………………… 187 XVII Do Unborn Natural Persons Qualify Under the Corporate Personhood Tests for Protection Under the Fourteenth Amendment? ………………… 198 XVIII Segregating Unborn Natural Persons From Born Persons Under the Fourteenth Amendment …… 200 XIX The Erosion of Legal Protection for the Unborn ……… 201 XX Brown v. Board of Education: A Model to Restore the Rule of Law ……………………………… 206 VOL. 22, NOS. 2 & 3 FALL 2006/SPRING 2007 XXI The Road To Roe: The Rise of Privacy, Unrestrained Personal Liberty and Fundamental Rights …………………………………208 A. Historical Limits on Personal Liberty ……………………………………210 B. Protecting Children Under the First Amendment ………………………220 C. Using Privacy to Justify Unrestrained Personal Liberty That Harms Others ………………………………………………223 D. The Confl ict Between the First and Fourteenth Amendments ……………………………………………………………230 E. Steinberg v. Brown: The Precedent Ignored in Roe ………………………232 XXIII Rule by Law v. Rule of Law …………………………………………………234 A. Bryn ………………………………………………………………………234 B. The Aftermath of Bryn ……………………………………………………241 XXIV Abandoning the Rule of Law: Roe and Doe …………………………………243 A. Roe ………………………………………………………………………243 B. Doe ………………………………………………………………………246 XXV Defending the Rule of Law for Murderers …………………………………248 XXVI The Imposition of Rule by Law: Casey ……………………………………251 XXVII How Segregation Works: Cruzan …………………………………………255 XXVIII The Conservatives Retreat ……………………………………………………257 XXVIX The Turning Point: Public Outrage over Partial Birth Abortion ……………257 XXX The Revival of Human Slavery ………………………………………………261 A. Cloning …………………………………………………………………262 B. Embryonic Stem Cell Research …………………………………………264 C. Vaccines …………………………………………………………………265 XXXI International Law ……………………………………………………………267 A. Expanding the Class of Depersonalized Humans ………………………267 B. Political Correctness: The Canadian Model ……………………………270 C. Universal Human Rights …………………………………………………271 XXXII The Moral Imperative to Protect Human Life from Conception ……………273 XXXIII Restoring the Rule of Law ……………………………………………………275 XXXIV When Judicial Review Fails …………………………………………………282 XXXV Summary of the Case for Constitutional Personhood ………………………286 XXXVI When Human Being and Person Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence: Equal at Last ……………287 Opinion of this Honorable Court ……………………………………………287 XXVII Beyond Personhood …………………………………………………………289 A. Is There an Affi rmative Government Duty Under the Fourteenth Amendment to Protect Unborn or Born Persons? …………290 B. Application to Abortion …………………………………………………294 C. The “New” Moral Case for Aborting a Constitutional Person ……………296 D. The Jurisprudential Argument …………………………………………299 Conclusion …………………………………………………………………302 Preface The featured article in this edition of Issues in Law & Medicine is the thesis of professor Charles I. Lugosi, which was submitted and defended as part of the requirements for his Doctorate in Juridical Science from the University of Pennsyl- vania. In it, he applies the Fourteenth Amendment of the United States Constitu- tion to the issue of abortion. The Fourteenth Amendment was intended to protect people from discrimination by the states. But racism is not the only thing people need protection from. As a constitutional principle, Dr. Lugosi reasons that the Fourteenth Amendment is not confi ned to its historical origin and purpose, but is available to protect all human beings, including all unborn human beings. The Supreme Court can defi ne “person” to include all human beings, born and unborn. It simply has chosen not to do so. Dr. Lugosi argues that 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 defi nition of “person” under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artifi cial “persons” under the law, is more than met by the unborn, demonstrating