You may well ask what these seemingly disparate topics have in common. Each teaser represents an issue that’s before the U.S. Supreme Court. Since June is decision time for the Court, it seems a good time to review the issues and my earlier predictions.
This April the Court, as part of its effort to determine the legality of human gene patenting, struggled to understand the complexity and practical results of such patents. To the wry amusement of Court watchers, both the attorneys and the Justices posed various analogies from chocolate-chip cookies to baseball bats. Shortly afterward, in Mid-May, the issue and its importance took on a very real and human face – that of the actress and humanitarian Angelina Jolie. Through the very genetic test that is at issue, she learned that she had inherited a rare gene greatly increasing her risk of breast and ovarian cancer and chose to have a double mastectomy.
Her very public revelation brought the issue of gene patents and gene testing out of the legal laboratory and into living room conversations everywhere. If genes can be patented, companies that own these patents stand to make millions. The test Angelina took costs around $3,000 a pop, posing a real obstacle for many women. Moreover, many health insurers and Medicare do not currently pay for these tests. Should the Court rule in favor of Myriad Genetics, the precedent likely would result in many new gene patents being issued, giving the world access to innovative and possibly life-saving tests that few can afford.
In January, I predicted that that the company would win a close and narrow victory – thus continuing to hold the patent on the two specific genes. Thanks to Angelina’s disclosure and courage, I now predict the Court will rule that genes cannot be patented. I still think Myriad will continue to hold a patent to the testing process but not to the genes themselves. A human face garners more sympathy than a baseball bat.
Let’s now look at the challenge to the Federal Defense of Marriage Act (DOMA) and a challenge to California’s gay marriage ban, Proposition 8. I predicted that “the Court will decide DOMA is unconstitutional, but will allow states to define marriage. The decision will disappoint all parties.”
My continuing concern is a wild-card factor that is difficult to measure – the Catholic background of many of the judges and the church’s vocal and unrelenting opposition to gay marriage. But given the continuing trend of states to endorse gay marriage, a seemingly significant factor in the oral argument, I continue to believe DOMA is on its way out, but that by a narrow and contentious decision the Court will allow states to define marriage or punt on a standing issue.
I also predicted the Court to severely limit affirmative action as we know it and the decision to spark a plethora of new lawsuits and protests. I said to watch for Justice Kennedy to write the majority opinion. I don’t see any reason to change my opinion on this one.
Finally, the Court is revisiting the constitutionality of Section 5 of the Voting Rights Act. I’m going to hold to my prediction that Roberts disappoints his supporters again by joining the liberal minority to uphold Section 5’s constitutionality, but I’m less and less confident with each passing day.
We’ll all know the outcome of these four important cases in a matter of weeks. What seemed to be a pretty boring term of the Court has become the focus of national attention, thanks in no small part to Angelina Jolie. The power of celebrity, when used for the common good, should never be underestimated.
