DNA and the Supreme Court

The Supreme Court will issue important decisions on DNA evidence and patents.

Daily Editorial Board

On the U.S. Supreme Court’s docket are two cases regarding DNA. In the first, Maryland v. King, the right of a state to compel DNA evidence to be taken from a person arrested for suspicion of a crime without a warrant will be evaluated. In the second, Association of Molecular Pathology v. Myriad Genetics, the ability to patent a human gene will be decided. Both involve the application of law to recent developments in science and technology, but the considerations are very different.

The thought of a government being able to compel DNA evidence that can then be used to investigate any crime — past or future — without a warrant is absurd given the understanding of the right to privacy Americans enjoy. Compelling such evidence upon conviction may have a legitimate value in the interest of preventing recidivism and the rights felons give up already. In some states, felons lose the right to vote permanently. Surely compelling DNA evidence is less egregious for those convicted, but Maryland’s law allows compelled collection from suspects — who are innocent until proven guilty.

While the ability to patent a human gene, at first glance, sounds absurd, note that to isolate and commercialize a gene requires significant capital and research to bring to market. The purpose of the copyright clause is to incentivize this very process by guaranteeing exclusive use by the inventor to recover the investment and provide profit motive. However, in this case, it also prevents other researchers from using other means to study the gene in question. This impedes the very advancement of technology the copyright clause intends to promote. If Dr. Jonas Salk had patented the polio vaccine, perhaps polio would not have been eradicated in the western hemisphere.