Breyer: Courts Must Adjust to DNA Era

The court system must prepare itself for judicial decisions involving developments in genetics, Supreme Court Justice Stephen G. Breyer said yesterday afternoon in an address at the Charles Hotel.

His speech concluded the three-day conference of the National Commission on the Future of DNA Evidence, which brought together a diverse group of scientists, legal experts and bioethicists from all over the world.

"The [commission] and meetings such as the one we are now attending provide additional examples of productive conversation, taking place prior to, or during, significant legal change," Breyer said.

He also said it is imperative to continue dialogue between individuals in science and in law and other fields while making difficult science-related decisions in the courts.

"[America] will only continue to warrant praise if we who work in law, in science and in public policy increasingly understand one another and work together," he said.

Breyer, a graduate of Harvard Law School, said that because none of the nine current Supreme Court justices have any background in the natural sciences, lawyers and scientists have to prepare extensive briefs to educate them about complex scientific issues.

"Since the implications of our decisions in the real world often can and should play a role in our legal decisions, the clearer our understanding of the relevant science, the better," he said.

Additionally, he emphasized the importance of discussing the potential social and economic impact of DNA decisions in public forums.

The importance of public debate about scientific issues could be seen in 1996 when the Supreme Court considered the constitutionality of physician-assisted suicide, Breyer said.

"The relevant public policy issues, including our decision's likely social impact, had already been previously debated at length, in various public forums," he said. "In such cases, our Court rides the coattails of an existing public debate."

But Breyer said he fears that developments in genetics have not yet been subject to the public discussion needed to ensure sound decisions.

He highlighted three still-unexamined areas: DNA's role in the criminal process, the ability of DNA to predict predisposition to certain medical conditions and the application of patent laws to genetic research.

"[The] patent law approach is a one-size-fits-all approach. The question is, does it fit to the world of genetic research?" Breyer said.

He said that the crux of patent law is deciding whether a discovery "amounts to a protectable invention or useful device." In the case of genetic research, scientists sometimes apply when they have discovered "an existing aspect of nature" in which case a patent would not apply.

But despite of all the implications and difficult questions associated with genetic research, the benefits far outweigh the risks, Breyer said.

He said that fears of developing genetic engineering almost led to its prohibition in certain areas of research in the 1970s.

"One can easily imagine the harmful consequences to which a ban might have led... Research has led to enormously beneficial discoveries related to our health and well-being," Breyer said.

Shirley S. Abrahamson, chair of the National Commission on the Future of DNA Evidence, said she was pleased by the success of the conference.

"It accomplished all of its goals... bringing people from all over the country and around the world to discuss issues relating to DNA," Abrahamson said.

Breyer was a professor at Harvard Law School and the Kennedy School of Government before he took his seat on the Supreme Court in 1994.