The last chapter presented the argument that laws banning reproductive cloning treat human clones differently than humans born through sexual reproduction. This discrimination triggers the equal protection guarantee.

It is not enough to conclude that such anticloning laws have put the equal protection guarantee into play in some abstract sense. Someone has to bring a lawsuit challenging the laws under the equal protection guarantee. This chapter examines how that might come about.

Basic Principles of Federal Standing

Under Article III, Section 2 of the U.S. Constitution, the federal courts have the jurisdiction to hear cases arising under the Constitution and the laws of the United States. Thus, if Congress enacts a federal anticloning law, the federal courts could hear an equal protection challenge to that law. Similarly, the federal courts could hear an equal protection challenge to the manner in which the FDA has applied federal law to stop cloning. Finally, if a plaintiff wants to challenge the constitutionality of a state anticloning law, he or she could bring that challenge in federal court subject to the limitations that the Eleventh Amendment imposes.

Thus, it seems likely that an equal protection challenge to anticloning laws could end up in federal court. However, to proceed, the plaintiff must have the standing to invoke the jurisdiction of the federal courts.