Justice Speeches

Chief Justice Thomas J. Moyer

Roche Science and Ethics Advisory Group

June 11, 2007

Black Robes and White Coats: The Emerging Intersection of Genetics and the Law

Thank you, Dr. Frankel, for inviting me to participate in this morning's program.

A science historian rightly observed that \"science stands at the center of every dimension of modern life.\"

That observation is a perfect echo of Alexander Hamilton's prediction in the Federalist Papers that all of society\'s issues would find their way to the courts.

The laboratory provides the first sign of hope for a cleaner environment ... longer, more productive lives...and a future free of disease.

Science comes to bare on the courtroom through research that provides new insights into criminal activity and pharmacological treatments of substance abuse.

Indeed, the intersection of law and science is perpetual.

With the completion of the Human Genome Project in 2003 many are predicting that the 21st century will be the \"Century of the Gene.\" And it would seem that the promises of the international Hapmap consortium have, in the first decade of the century, made that a very prophetic prediction.

Many believe that cures for a wide range of debilitating diseases are well within reach as scientists determine which genes or combinations of genes make a person most susceptible.

Advances in genetic profiling may enable physicians to screen their patients with predictive genetic tests and treat them with medication specifically designed for their genetic sequence. Similarly, genetic screening offers the promise that we will not awake from the dream that children will someday be born free of birth defects.

But the promise could be matched by the perils.

On the eve of John Roberts Supreme Court nomination hearings, Jeffrey Rosen wrote a comprehensive story that appeared in the New York Times. Here is one of his observations:

\"As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality, and free expression.\"

Consider, for instance, the technology being developed for \"brain fingerprinting\" that uses functional magnetic resonance imaging to detect brain activity related to certain events.

It will soon be technologically possible for a prosecutor to stand before a jury with a video display of a defendant\'s brain scan that arguably proves the defendant was at the scene of a crime.

But will such a demonstration violate the defendant's constitutional right to be protected from unreasonable searches and seizures?

Consider also the idea of \"genetic selection.\" With a better understanding of the fetal genome, scientists may be capable of implanting in the mother\'s womb an in vitro embryo that is less prone to various diseases.

But this raises the question: who decides when a heritable trait is a genetic defect?

If parents want to select against a propensity for Down syndrome or Alzheimer\'s, could they also select for height or intelligence, or even gender or melanin levels?

Will the parents\' rights to autonomy continue to expand, or will they be limited by arguments asserting the equal protection rights of the embryo?

And in a recent paper Mark Frankel and Brent Garland write that neuroscience and behavioral genetics raise the possibility that our "concept of criminal culpability will be undone by new scientific discoveries." They conclude that it "seems unlikely, at least in the near future."

I cannot predict the outcome of these debates, but with certainty I can foresee that some, if not all of these conflicts, will find their way to the courts.

A colleague of mine, the Executive Director of the Advanced Science and Technology Adjudication Resource Project, Dr. Franklin Zweig, agrees that it is inevitable that the courts will be required to resolve these and similar disputes. To quote Dr. Zweig:

"Because legislatures are slow to act, those controversies can be expected to be brought to court systems for resolution. Courts will become the first—not the last—resort for both dispute resolution and policy interpretation during the 21st century's early years."

Daubert and its Significance

As more scientific issues come before the courts, judges have been given a more prominent role in deciding the admissibility of scientific evidence.

For much of the 20th century, the standard was whether the evidence or testimony was generally accepted by the scientific community ... ruling out novel or dubious forms of science. This standard was criticized in the 1960s and 70s as being slow to respond to advances in science.

A change to the federal rules of evidence, and a corresponding decision by the U.S. Supreme Court, broadened the authority of a judge to decide what constitutes admissible scientific evidence.

In the Daubert decision, the Supreme Court held that "trial judge(s) must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."

To assess whether scientific evidence is reliable, the Court listed three nonexclusive factors that a trial court should consider:

The effect of Daubert was to convert trial courts from passive recipients of scientific and technical data ... into engaged evaluators of scientific techniques.

The judge became the gatekeeper—the person in the courtroom that decided which scientific evidence would be considered by the fact finder.

The overwhelming majority of states have adopted laws and rules of evidence consistent with the Daubert decision.

Warning that very few judges are trained

While judges are becoming more and more important as the final arbiter regarding the admissibility of scientific evidence, very few judges are trained in science or technology. To most, the practical application of bioscience, biotechnology, and biomedicine is a new phenomenon.

Yet it is judges who determine which scientific facts and propositions form the basis for very important decisions. Judges, as gatekeepers, regulate the flow of science evidence to the fact finder.

EINSHAC and ASTAR

The federal courts have worked with the American Association for the Advancement of Science to provide pertinent training and information to judges.

In 1995, Congress provided funding for the creation of EINSHAC, The Einstein Institute for Science, Health and the Courts to provide judges with tools to help resolve science-related disputes. I had the pleasure of sitting on the EINSHAC board and now serve on the ASTAR board.

EINSHAC has produced 2 ½ - 3 day programs for 500 judges in a number of countries.

It soon became clear that the scientific protocols would require that judges receive more than our session on emerging sciences. There was a need to offer advanced training to selected resource judges to adjudicate high profile cases—cases that come to us from the explosive advances in the life sciences.

The new venture was designated the Advanced Science and Technology Adjudication Resource Project or ASTAR ... with a goal to train 700 resource judges in the United States and foreign jurisdictions by the end of this decade.

Forty-five judges in Ohio and Maryland were the initial members of the consortium and the first to receive advanced science and technology adjudication training.

Those judges successfully completed the two year program that consisted of 120 hours of advanced science training. They are now assisting in the training of a new group of selected judges.

The program has expanded to 39 states with training conducted on a regional basis and at national institutes.

Ohio is responsible for the Midwest and Central Gulf states. Maryland coordinates the eastern seaboard states and the state of Washington provides for programs in the western states.

All judges are exposed to some of the leading scientists in the country, taking classes in courses such as genetics and bio-ethics. For example, we are being aided by faculty from the Ohio State University, Howard University, the University of North Carolina, the University of Washington, and Johns Hopkins.

ASTAR judges are tutored on the inner workings of computers, taught how the Avian Flu could affect agriculture and they unravel the double-helix as they are exposed to concepts of medicine and the reproductive sciences.

At a program at Lawrence Berkeley National Laboratory in March judges were exposed to a week-long program on Nanotechnology, Synthetic Biology and Environmental Biotechnology.

Later this month on the campus of Ohio State University more than 80 judges, including supreme court justices from four states, will participate in an intensive primer on science matters. We refer to the program as Science Boot Camp.

And later this year a program will be held at Johns Hopkins University School of Medicine regarding neuroscience and bio-behavioral technologies.

One thing we have found is that judges are eager to learn and doctors and researchers are eager to teach.

The advanced training is already being applied to cases in Ohio.

A number of cases have been filed in Ohio that involve corporate farms that generate large volumes of manure and waste. Neighbors of one farm filed suit claiming that the hydrogen sulfide, a byproduct of manure, produced neurological harm.

Putnam County Judge Randall Basinger is one of 20 Ohio judges who have completed 120 hours of ASTAR training and he used the information from that seminar to conduct hearings and write opinions with respect to the science presented through discovery by the parties to the lawsuit.

State v. Pierce (Criminal Case)

One case that exemplifies the approach taken by many courts to include advances in scientific technology is State v. Pierce, which considered whether DNA evidence could be used against a defendant in a criminal trial.

When the Ohio Supreme Court decided this case in 1992, we proceeded through these various steps by educating ourselves about the advancements in technology and used the Daubert standards of reliability regarding what was, at that point, relatively new forensic science.

Until this case was decided, it was not clear whether scientific evidence in the form of DNA analysis was admissible in an Ohio court.

In the Pierce case, blood samples taken from a defendant accused of rape were sent to the Cellmark Diagnostics DNA lab in Maryland along with samples from the victim's rape kits.

The defense argued that the DNA results, showing a match between the defendant's DNA and the rape kit samples, should not be admitted.

He claimed that DNA testing was "new or novel" and had not yet reached the point where "a scientific principle or discovery crosses the line between the experimental and demonstrable stages."

The Supreme Court of Ohio held that the DNA test results could be introduced as evidence because they were relevant to a critical issue in the case: the identity of the defendant as the rapist.

The defense could argue that false positives may occur in DNA testing, or that the Cellmark procedures and standards were deficient. But, the defense was not permitted to keep the evidence of the test results from the jury.

Now, as you know, DNA evidence is readily admitted in criminal cases nationwide, and is considered to be reliable \"beyond a reasonable doubt.\"

Though decided over 15 years ago, I foresee the Ohio Supreme Court and various other courts across the country proceeding in a similar manner to the Pierce case when considering the admissibility of evidence obtained through new scientific procedures in criminal cases.

In fact, TV shows such as CSI are causing jurors to expect CSI quality of forensic evidence in criminal cases. Some jurors actually vote to acquit if the prosecutor has not presented.

Brain scanning will be subject to the same level of scrutiny regarding its accuracy in the next few decades as DNA evidence was in the 80\'s and 90\'s.

Genetic Screening Civil Cases

As I alluded to before, genetic screening could lead courts to decide at what point a parent\'s rights to have a \"designed\" child end, and where the child\'s rights begin.

The future of these cases could be influenced by decisions of present day courts regarding genetic screening in numerous civil cases concerning physician malpractice.

Many jurisdictions around the country have already heard cases regarding wrongful conception. These cases used to present issues exclusively deriving from parents who conceived a child after having had a fallopian tubal ligation or vasectomy.

However, with the increase of genetic testing, some parents are saying that had they known that their child would be susceptible to a genetic defect, they would have either terminated the pregnancy early or not conceived at all.

Such a case was decided by the Supreme Court of Ohio in March 2006 in the case Schirmer v. Auburn Obstetrics and Gynecologic Association.

The court decided that parents of an unhealthy child born following negligent genetic counseling ... or a negligent failure to diagnose a fetal defect or disease ... may bring a medical malpractice action to recover costs arising from the pregnancy and birth of the child.

But the court held that they were not entitled to economic or non-economic damages for the care and raising of the child.

Helen Schirmer, the mother in the case, knew she carried a genetic defect ... Trisomy 22 ... that carried the risk for mental retardation and severe physical disabilities. She knew that the risk of the disorders was higher if the child was a boy.

After becoming pregnant she underwent genetic testing and was told by doctors that the fetus was likely female and exhibited the same inactive genetic flaw that she did.

Based on that information the Shirmers went forward with the pregnancy, giving birth to a boy with multiple physical and mental impairments requiring round-the-clock care.

A majority of the court decided that Ohio law did not allow the parents to recover the cost for caring and raising the child.

Geler v. Akawie

In Geler v. Akawie, a New Jersey case, the parents of a child who died from Tay-Sachs disease before the age of two sued their obstetricians for failing to test the father, the mother, and the amniotic fluid.

An appellate court ruled that the second physician was negligent in not testing for the disorder soon enough for the mother to receive an abortion under New Jersey law.

Genetic Privacy

The increased use of DNA forensics in criminal and civil cases has raised legal issues surrounding the collection of and access to DNA information.

Once a genetic sample has been collected and catalogued in a DNA database, it serves as an archive of information that may be of interest to a variety of entities — such as insurers, employers, schools, personal physicians, and medical researchers.

Because genetic information serves as an important predictor of health, the increased collection and use of genetic samples "has many people worried about discrimination resulting from inappropriate access to, and use of, private genetic information."

It "has led to concerns that employers and insurers may use this information as a means for limiting (an individual's) employment opportunities or insurance coverage."

No current federal statute explicitly addresses genetic discrimination in the workplace.

But in April this year, the U.S. House of Representatives approved the Genetic Information Nondiscrimination Act which would prohibit insurers from denying coverage or charging higher premiums based on a genetic predisposition to develop a disease. The bill also prohibits employers from using genetic information in hiring and job placement decisions.

The bill is pending before the Senate.

An article on the \"Ethical, Legal, and Social Implications of Genomic Medicine\" in the New England Journal of Medicine presented a related case. A company, Burlington Northern Santa Fe Railroad decided to test its employees for a hereditary condition that often leads to carpal tunnel syndrome.

When it became evident that Burlington Northern was testing these employees in order to deny disability compensation to those few who may have carried the mutated gene, the Equal Employment Opportunity Commission put a stop to it.

The case demonstrates the ongoing relevance of employee and employer rights. Certainly no one believes that an employee should be discriminated for genetically determined traits like skin color and gender, but what happens when the employee\'s insurance costs become prohibitively high due to his or her genetic predisposition to a disease?

To avoid a situation like Burlington Northern, may an employer use genetic testing to determine an applicant\'s susceptibility to any number of costly diseases before hiring that person?

While the genetic privacy bill awaits action in the Senate, almost every state has a law protecting against genetic discrimination with respect to health insurance, and over half of them protect in employment and offer confidentiality protections.

Conclusion

In an article titled \"The Interdependence of Science and Law,\" Justice Stephen Breyer wrote the following:

"The practice of science depends on sound law—law that at a minimum supports science by offering the scientist breathing space, in which he or she may search freely for the truth on which all knowledge depends. It is equally true that the law itself increasingly requires access to sound science. This need arises because society is becoming more dependent for its well-being on scientifically complex technology. To an increasing degree, this technology underlies legal issues of importance to all of us. We see this conclusion illustrated throughout the legal system.\"

The complexities of the 21st century make some of us long for the simplicity of the past. As you continue your interest—profession, research—you will participate in activities as exciting and perplexing as any in history, and you will certainly have contact with the law.

The prodigious expansion of scientific developments, and the Orwellian-reach of the information age ... will test the resilience of American jurisprudence.

These issues will appear on court dockets ... side by side with questions regarding civil liberties, due process and personal expression.

But these seemingly new issues will be resolved in the oldest of traditions: by interpreting and applying our laws consistent with our constitutions and by remaining faithful to the Bill of Rights.

The issues continue to evolve, but the process remains the same.

So it is in the 21st century, as it has been since the framing of the first constitutions of the republic that the third branch of government will continue to exercise its moral authority first identified in the Federalist Papers.