The closer we get to next year's March primaries, the faster the campaign promises fly. Republican gubernatorial frontrunner Greg Abbott recently made a splash by releasing an extensive list of items he says he’ll push for once elected.
One proposal in particular stood out a bit: safeguarding your DNA.
The proposal is a part of Abbott’s “We The People” plan. It also includes things like gun rights, campaign ethics and blocking the implementation of the Affordable Care Act. But DNA is item number one.
DNA rights have become increasingly important as technology creates more ways to collect, store and use the data. Abbott is concerned about governments or private companies exploiting people’s genetic material for their own gain.
Abbott points to the case of a woman in Baltimore who died of cervical cancer in 1951. Scientists studied her cancer cells for decades, without her family’s permission. Abbott says establishing ownership of one’s own DNA would prevent those kinds of intrusions.
But University of Texas School of Law professor Lynn Blais isn’t sure Abbott’s plan is on the right track.
"I think the issue of the use of DNA is certainly an important issue in the state and in the country," Blais says. "But I don’t really see it as an issue of property rights. I see it as an issue of privacy.”
Blais has taught property law at UT for more than two decades. She says the problem is that without specific legislation, Abbott’s proposal might not change anything. "Just saying we have a property right doesn’t answer the question of what your rights are with respect to your DNA," Blais says.
Michael Risher is a staff attorney with the American Civil Liberties Union of Northern California. He says your DNA may have even fewer protections when the criminal justice system gets involved.
“The US Supreme Court recently upheld a Maryland law that allowed the police to take DNA from people arrested for serious crimes after a judge had found probable cause,” he says.
Risher also points to court rulings that say your DNA is yours, as long as it’s still attached to your body. But when it’s collected – say, by the police – or discarded, it’s fair game. Abbott wants to address this by making laws that would put Texas, as he puts it, “on the vanguard of DNA property rights.”
But Risher cautions against making any sweeping changes, like declaring DNA personal property. He says that could dramatically affect how DNA can be used in law enforcement.
"So if DNA is your property, yes, that may alleviate some of the improper, what I would call, uses of DNA in the criminal justice system," Risher says. "But it also can make it very difficult for the criminal justice system to use DNA in productive ways."
He adds DNA has become a key in forensic investigations, used to solve cold cases and exonerate innocent people.
"What would be more productive in this area is for our legislators to take a close look at how DNA is being used in the criminal justice system," Risher says. "And how DNA is being used in other contexts. And decide precisely what is appropriate, what is inappropriate. So that we can have precise well thought out rules for doing things, rather than just kind of leaving it up in the air."
Professor Blais says one thing Abbott’s plan doesn’t address is how genetic information could be used to discriminate against you. But there's already a federal law that does address that.
“The Affordable Care Act goes pretty far to solving the discrimination in insurance problems by making it unlawful to exclude people from coverage due to pre-existing conditions," Blais says.
The final two proposals on Abbott’s “We The People” plan would prohibit the state government from implementing the Affordable Care Act – blocking that law's DNA protection.