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St. Thomas Law Review

First Page

561

Document Type

Article

Abstract

The subjects of this article are the nhos, especially non-human animals, for the reason that they are the most difficult class to reign in with the right of self-interest. But it is true that self-interest has far broader application to human embryos, human stem cells, and human cloning. These quasi-person candidates are put aside for now. In this article, a fusion of biology and law is used to suggest this new theory for extending U.S. Constitutional rights to quasi-person nhos. In evoking the Thirteenth Amendment, it does not mean that animal ownership is being equated with slavery. This is not a liberty argument. Instead, the thesis is being advanced that the right of self-interest is severable from the Thirteenth Amendment, and can be stretched, like an accordion, to wrap around non-human organisms (and other quasi-persons), without abolishing their status as property. This expansion can be accomplished because, in part, the barrier that fell in 1865, when the right of self-interest was extended to Africans, undid the rule that "race" could be used to dissect and apportion the constitutional community. When the concept of race is analyzed from the biojurist's perspective, it leads to the conclusion that Congress's rejection of the race rule is not in its final repose, but has vitality beyond the abolition of slavery, potent enough to penetrate the species barrier. In enlarging the scope of the Constitution, the right of self-interest was applied to the class of quasi-persons - the part-property, part-person status of slaves at the time of the enactment of the Thirteenth Amendment. One thing this article does not do is to define the quasi-person class. Instead, the focus is on the emergence of self-interest and its applicability to entities entitled to its shelter. Because both embryos and non-human animals today are considered to have attributes of both person and property, it is consistent with the spirit and intent of the Thirteenth Amendment to convey the right of self-interest to them. Such right permits a quasi-person to demand, at a minimum, respect, consideration, and a weighing of its own interest in itself to survive. No right is unencumbered. Granting rights to quasi-persons will inevitably conflict with entrenched societal rules, laws, and civil liberties possessed by persons. Suppose a human embryo, with a guardian as a spokesperson, claimed that a state law permitting abortion during the first and second trimesters violated its liberty interest. A court faces the determination whether the state law is a valid exercise of the police power, or whether its interference with the quasi-person's liberty interest is prohibitive. To justify an interference with a fundamental constitutional right, the state must establish a compelling reason to accomplish an important state interest - the "strict scrutiny" standard. Should the mother's right to procreate and right of privacy be superior to the embryo's right to live? What if cattle were to challenge the slaughterhouse laws or the companion animals were to challenge state sterilization laws? Balancing the interests of a person against those of a quasi-person is going to be the chief dilemma when self-interest is extended to human embryos and nhos. An approach to this difficult balancing task is to apply a lesser standard to nhos when such a conflict arises, such as the standard of review applied to economic rights where a state only has to show that the statute has a rational relationship to a legitimate state purpose. Ultimately, the solution will have to be a creative one, leaving quasi-persons with the right of self-interest intact, without compromising the rights of persons.

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