Nothing is more personal than the blueprint of life itself, encoded in the DNA that comes with the gift of birth. Advances in medical technology have given scientists the power to read what's written in those genes, and there's the problem. Some of us want to control what doesn't belong to them.
On Thursday, the Supreme Court disappointed a company that had discovered two genes that, when damaged, lead to ovarian and breast cancer. Myriad Genetics Inc. wanted to patent the healthy gene sequence in pursuit of a cure and hoped to obtain a government-enforced monopoly. The court unanimously held that no one can patent something that occurs naturally. You might as well allow someone to patent fire and require everyone to pay a commission every time two sticks are rubbed together over a pile of tinder.
It's a pity the justices didn't show similar wisdom and unanimity in an earlier DNA case, of a Maryland man named Alonzo King, who was arrested in 2009 and charged with threatening with a shotgun. In a 5-4 decision, the court held that police were right to seize DNA from King without a warrant, as is the state's policy for everyone arrested. The genetic information taken from King's skin cells led to his conviction in an earlier and unrelated rape case.
The officers involved brought belated justice to the victim of a terrible unsolved crime. That's a good outcome, but at too high a price. It enables police to make fishing expeditions to link anyone who comes in contact with a cop to unsolved felonies. It trumps the presumption that a man is innocent until proven guilty.
The court majority, led by Justice Clarence Thomas, conceded that a DNA swab from King fell under the Fourth Amendment's search-and-seizure protections, but argued it was "reasonable" for the government to seize the sample without a warrant anyway, because its aim was to use the sample as a means of identification, like a fingerprint.
Justice Antonin Scalia, a law-and-order conservative, was joined by three liberal justices. He disputes the majority's assertion "that DNA is being taken not to solve crimes, but to identify those in the state's custody," which he said "taxes the credulity of the credulous. These DNA searches have nothing to do with identification."
Justice Scalia said the Maryland law is unconstitutional because it strikes at the core protections embodied in the Bill of Rights. "The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception. It lies at the very heart of the Fourth Amendment."
Conservatives sometimes fall prey to the temptation of favoring outcome over principle. We all want rapists and other violent thugs put behind bars, but catching one criminal is not worth diminishing the rights of all. We have to stand firmly for principle, not outcome, or we're likely to lose both.
The Washington Times
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