by Sandra Park

ACLU Senior Staff Attorney

As the COVID-19 crisis takes its devastating toll, the need for scientific collaboration is self-evident. After the first outbreaks, scientists in China sequenced the viral genome and released that data, permitting laboratories globally to develop their own tests to diagnose patients for COVID. 

Yet, members of Congress, led by Sen. Thom Tillis (R-N.C.), have pointed to the pandemic as a reason to radically change patent law. The changes would allow corporations to have exclusive rights over genes, connections between genomes and disease, and other products and laws of nature, inhibiting scientific innovation.

Contrary to the arguments offered by Sen. Tillis and his allies in Congress, changing patent law to permit exclusivity on natural phenomena would give companies the ability to charge excessive fees for genetic testing to detect increased risk for diseases such as breast cancer, drive up patient costs for coronavirus testing, and inhibit scientific progress. That is why the American Civil Liberties Union and the ACLU of North Carolina have launched a campaign to educate people about the dangers these changes to Section 101 of the Patent Act pose, and to ask Sen. Tillis to abandon these efforts. The current ongoing public health crisis is an excellent example of what’s at risk if these patent law changes move forward.

Today, scientists around the world are contributing information about the thousands of new strains of coronavirus they have sequenced, data that is vital to understanding the virus and developing testing and treatments. While there have certainly been serious problems with sufficient access to tests in the United States, the issue is not that laboratories lack patent protection to develop them. Dozens of laboratories have created and are offering diagnostic tests.

Imagine an alternate scenario: The first laboratory to sequence the COVID-19 genome immediately files for patent protection on the genome and its connection to disease, threatens other labs that want to test for the virus with patent infringement suits, and seeks to monopolize testing. Other labs follow their example, and soon different strains of the novel coronavirus are subject to competing patent claims, impeding the ability of the scientific and medical communities to freely investigate the virus and its evolution.

This scenario is not fantastical. The U.S. Patent & Trademark Office adopted a policy in 2001 authorizing patents on genes once they were “isolated” or removed from their natural environment. Patents covering many thousands of genes and their connections to health conditions were issued, and patent holders exercised their rights to stop others from sequencing those genes, even when the other laboratories were using different, more comprehensive, or less costly methods. 

The ACLU represented 20 leading medical professional associations, geneticists, breast and ovarian cancer patients, and women’s health advocacy groups to challenge the Patent Office’s policy. In 2013, we won a unanimous ruling from the U.S. Supreme Court, which drew on over 150 years of precedent prohibiting patents on laws of nature, products of nature, and abstract ideas. By invalidating patents on two genes connected to hereditary risk for breast, ovarian, and other cancers, the court broke the monopoly controlled by the patentholder on all testing that could be conducted in the United States.   
 
Outraged by the Supreme Court’s decisions in our case and two others, the patent bar unleashed a major lobbying campaign to overturn them. Their efforts gained steam during the summer of 2019, when a group of senators and representatives, led by Sen. Thom Tillis as the chair of the Senate Judiciary Subcommittee on Intellectual Property, jointly issued a draft bill that would explicitly retract all of the Supreme Court case law barring patents on laws of nature, products of nature, and abstract ideas.

Over 160 medical, scientific, patient advocacy and civil rights organizations as well as over 80 biomedical scientists led by Drs. Harold Varmus and David Baltimore opposed the proposal. We highlighted that allowing patents on natural materials, natural processes, and ideas could “hamstring basic science and slow discovery, thereby compromising the nation’s ability to enhance the quality of health care and foster economic progress.” 
 
Shockingly, patent proponents are seizing on the COVID-19 crisis to renew their calls to expand what is eligible to be patented. They assert that companies were slow to develop diagnostic tests for the novel coronavirus because they lacked certainty that they could obtain patents. They are, in effect, asking for the ability to charge monopoly prices for testing of a new disease that is causing a global public health crisis. And they are pushing for permanent changes to patent law that will undermine medical practice and scientific research well after this crisis ends.

Since the outbreak, the ACLU has emphasized the need to respect the expertise of public health officials and scientists while preserving our civil rights and civil liberties. Our advice for Congress and patent policymakers is no different when it comes to patents. Many in the medical and scientific communities already have recognized how over-reaching patents would only hinder progress, calling for open science partnerships or adoption of the “Open COVID Pledge” – which commits to making intellectual property available for use in ending the pandemic and minimizing the impact of the disease, free of charge.

As the COVID-19 crisis makes clear, we all have a stake in how far patents reach. Patents dictate who has access to scientific breakthroughs, when, and at what cost. Granting exclusive rights over what belongs to the public impedes, rather than fosters, innovation and discovery. There will be many different ways we must mobilize to address the pandemic. Drastically expanding what can be patented should not be one of them.

by Manar Waheed

ACLU Senior Legislative and Advocacy Counsel

Four years ago, an election altered the reality of Muslims in America and all over the globe. As president, Donald Trump made real his promise to ban Muslims by abusing his authority under the Immigration and Nationality Act (INA). Once that ban was legitimized by the Supreme Court, he used the same authority to issue ban after ban, discriminating against Black and Brown people in furtherance of his white supremacist agenda.
 
As we round the corner on this presidential term, it is critical that these discriminatory bans and all the related policies, including social media vetting, are rescinded and a more stringent standard is put in place to protect against these abuses of authority by future presidents. Every executive order and proclamation using authority INA 212(f) must be rescinded immediately and the original National Origin-Based Antidiscrimination for Nonimmigrants Act (NO BAN Act) must be signed into law to protect the American people from such discrimination and abuse moving forward.
 
Throughout his campaign, Trump promised to ban Muslims from the United States with naked vitriol that disregarded the Constitution and the American ideal of equality. In the days and weeks that followed, people from all walks of life preemptively promised to register with Muslims if Trump created a registry, and safety pins became a symbol to express silent solidarity for all who might be attacked. In an attempt to prevent harm to Muslims in its final days, the Obama administration dismantled the framework for the original post-9/11 registration program, National Security Entry-Exit Registration System (NSEERS). Few realized the forthcoming reality, and instead many hoped that Trump’s campaign was an attempt to garner the votes with his base and would not manifest in discriminatory policies.
 
That hope was short-lived. Just one week into his presidency, Trump issued his Muslim ban, sending his own administration into disarray and our country into chaos. But this time it was different. Instead of the public silence that followed NSEERS, as people were disappeared from our country, many were outraged and ready to act. In hours, airports nationwide were flooded with protesters demanding that Muslims be let into the country. Members of Congress, including Rep. John Lewis, showed up and waited for every person at the airport to be released.
 
It was a defining moment in American history: an uprising that made our collective resistance to oppression and discrimination clear.
 
However, the will of the people is not always immediately reflected in the outcomes of our government or our systems. Though numerous courts rejected Trump’s ban and cited its naked discrimination and animus, the administration repeatedly re-enacted it — and even claimed that the third version of the ban was the result of a secret process that was disconnected from the President’s promise to ban Muslims from the United States. Ultimately, the Supreme Court decided that claim gave it just enough cover to uphold the third Muslim ban, in a 5-4 ruling that is one of the court’s historic failures.
 
It was not the first time the Supreme Court failed, and it likely won’t be the last. One of the most infamous Supreme Court failures was allowing the incarceration of Japanese people in America through so-called internment camps. It was 40 years after Fred Korematsu refused to submit to Japanese incarceration camps that his conviction was finally overturned in federal court, though the Supreme Court decision still stood. A few years later, a bill was passed and signed into law providing redress and reparations for those who were incarcerated. A few months after that, Fred Korematsu was awarded a Medal of Freedom. Indeed, he spent his life fighting for these freedoms and recognition alongside numerous advocacy organizations and people all over the country. It’s no surprise that his daughter, Karen Korematsu, founded the Korematsu Institute and has played a critical role in defending the rights of Muslims.
 
Much like Japanese incarceration, the Trump administration used fear-mongering under the veil of “national security” to further its discriminatory agenda — this time by suspending visas under INA 212(f) to repeatedly ban Black and Brown people. It began with the Muslim and refugee bans, and once legitimized by the Supreme Court, it extended to more countries, specifically targeting Africans, as well as the asylum ban and a ban on certain people unable to prove they would have health insurance products. Once the pandemic hit, Trump used the same authority to issue ban after ban — again, preying on people’s fears while failing to implement an effective response or meet people’s need for COVID-relief.
 
Eventually though, the systems catch up with the people they represent — though many get hurt along the way. Muslims, along with other Black and Brown people, have been hurting for far too long.
 
It is time to rescind the Muslim ban, all the bans that came after it, and the corresponding policies. It is time to put a more stringent standard in place to prevent future abuses of this authority, like that in the original NO BAN Act. It is time for civil rights and liberties again.

by Sarah Brannon, ACLU Managing Attorney

Molly McGrath, ACLU Voting Rights Campaign Strategist

With less than a week to go, the only thing we can be sure of is that this Election Day will most likely look, feel, and be different than previous years. We are, after all, living through a pandemic, economic crisis, fight for racial justice, and an election season. 

If you haven’t planned how you are going to cast your vote or already voted this election, there’s still time. You can find more information here about how to make your voting plan, and learn about the specific guidelines in your state. If you plan to vote by mail, consider dropping off your ballot in-person at a drop box or election office. If you plan to vote in-person, make sure to check the location of your polling place or early vote center. You can also learn about your rights at the polls here. 

And just as we’ve been asking our supporters to make a plan to vote, we at the ACLU have been preparing for months and years for this Election Day: activating volunteers, motivating voters, and fighting for our rights across the country in courts, legislatures, and in the streets. 

The ACLU national office and our state affiliates and chapters have been working around the clock to protect and expand your access to the ballot this election season. Through litigation and advocacy, we’ve fought and scored 26 victories in 20 states and Puerto Rico to safeguard the right to vote. Together, these states are home to more than 154 million Americans and wield 247 votes in the Electoral College.

But our work doesn’t stop there. Our state offices are working with a network of election protection lawyers and volunteers on the ground to make sure every eligible American can exercise their constitutional right to vote and each and every vote is counted. The ACLU is at the ready to act swiftly and use all of the tools and resources at our disposal to protect the vote. If you have questions about casting your ballot or difficulty voting, remember you have the right to vote and help is a phone call away at 1-866-OUR-VOTE.
 
The ACLU doesn’t represent one party, person, or side. Our mission is to protect our democracy and realize its promise for all. This election, during a pandemic, is an all-hands-on-deck moment for our entire ACLU community. The ACLU was created in a time of deep crisis for our nation, and time and time again, we’ve been called on to defend freedom in the most difficult circumstances.   
 
For four years, people have counted on us to do everything we can to protect people’s rights and our democracy. We won’t back down. On behalf of every member of our ACLU staff, we will continue to defend our fundamental freedoms with all that it takes for as long as it takes. Even in the darkest periods in modern American history, the ACLU has never mourned the present.