DNA and Distrust

Kerry Abrams*

Brandon L. Garrett**

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions “not relevant to identity.” We argue that policy implications of genetic testing laws cannot be so neatly demarcated. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from “deadbeat dads,” which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population’s genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators, and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.

Continue reading in the print edition . . .

© 2016 Kerry Abrams & Brandon L. Garrett. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Virginia School of Law.

**Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. For their comments on drafts of this Article, we thank Sarah Abramowicz, Josh Bowers, Sara Sun Beale, Sam Buell, Guy-Uriel Charles, Kim Forde-Mazrui, Lisa Griffin, Jill Hasday, Deborah Hellman, Rich Hynes, Eisha Jain, Elisabeth Joh, Michael Livermore, Jessica Lowe, Julia Mahoney, John Monahan, Cynthia Nicoletti, Jed Purdy, Rachel Rebouche, Mimi Riley, Naomi Schoenbaum, Rich Schragger and the participants at a faculty workshop at Duke Law School, a summer workshop at the University of Virginia School of Law, and a workshop at the 2014 Emerging Family Law Scholars conference. Courtney Miller and Jack Shirley provided very helpful legal research.