Legalism attempt to simultaneously challenged while also upheld biopolitical framing of activism – ACLU and other lawsuits against biotech only attempt to facilitate and optimize women’s access to biotechnology but still work within the language and framing of the neoliberal bioeconomies.

A coalition composed of the ACLU and several women’s health advocates has launched a powerful and valuable campaign in support of women’s rights to health. Yet, the case provides a limited intervention in support of women’s health because of its biopolitical framing and appeals for an open public domain. Addressing this limitation should not be understood as a criticism of the actors challenging Myriad’s patents. Their work is an important act of feminist solidarity, mobilization, and resistance to the law. Rather, it is a critique aimed at the law’s power to codify dissent into its own language and force oppositional discourses into narrow parameters.67 The plaintiffs filing the complaint and advocates submitting amicus briefs are thus compelled to make their arguments within an acceptable language intelligible to the law, a language of neoliberal, biopolitics and an open public domain. Centered on the metaphor of genes as information, the initial 2009 ACLU complaint argues that Myriad’s BRCA1 and BRCA2 patents restrict the flow of information regarding breast cancer research. Women are prevented from receiving genetic information regarding their susceptibility for the disease because testing can only be done through Myriad laboratories. The complaint points out that many women, particularly women of color, cannot afford the testing. This is because patent law provides Myriad with a temporary monopoly over breast cancer testing involving BRCA1 and BRCA2 genes, allowing Myriad to keep costs high and to be selective in the types of insurance they accept from patients. The legal complaint also argues that gene patents restrict information sharing among researchers, precluding them from developing alternative tests. Female patients at risk for breast cancer are unable to obtain more meaningful genetic testing, and female scientists are hindered from doing breast cancer research. Thus, women’s labor and participation (and health) in the bioeconomy is curtailed. The ACLU argues therefore for overturning genetic sequence patents and keeping them in the public domain. BRCA1 and BRCA2 gene sequences should not be patented, and should remain freely available in the public domain for scientific research. Similar arguments are made in the initial amicus briefs filed on behalf of the plaintiffs. A coalition of women’s health advocates assert that gene patents “prevent women at risk for breast cancer and ovarian cancer from obtaining the information they need about their own bodies to take steps to improve their health outcomes, and possibly save their own lives and the lives of their children.”68. Thus, they argue, it is critical that genetic sequence “knowledge and information are maintained in the public domain.”69 In developing a feminist analysis of patent law, one must think carefully how this case leaves neoliberal, biopolitical values unchallenged. Contemporary biopolitics, as discussed above, obliges women as the primary caretakers to engage in technologies of optimization for themselves and their families. Mechanics of neoliberal, biopolitics argue that patent law is crucial for providing new medical technologies to assist women in the self-management of their health. The ACLU case disputes such claims regarding patent ownership, while leaving biopolitical assumptions intact. The ACLU complaint argues that gene sequence patents actually prevent women from making decisions regarding their health and the well-being of their families. Myriad’s patent ownership rights enable the company to maintain a monopoly control over breast cancer research and testing. Populations of women therefore become regulated differently through legal “technologies of subjection” as high costs and insurance restrictions mean that only some women at risk for breast cancer can obtain testing.70 The case therefore argues that excluding gene sequences from patentable subject matter and placing them in the public domain would promote women’s right to health by giving them alternative testing technologies and better breast cancer research. The case however does not go far enough to challenge the styles of thought driving contemporary bioeconomies. The goal of the case is to facilitate women’s access to genetic testing, thus it reinforces biopolitical obligations for women to donate bodily tissues and utilize medical technologies. Biopolitical values are thus simultaneously challenged, while also being upheld. The legal complaint and amicus briefs make it clear that the plaintiffs are not against patents entirely. In fact, they explicitly agree on patents for genetic testing innovations. What they disagree on is patents over DNA sequences. Foundational to their legal claim is an open public domain model, one in which patent ownership is not suspended, but merely temporally deferred. Faith remains in a neoliberal model of free trade and competition. The ACLU engages within an economy of hope, placing their faith in an open public domain where freely accessible BRCA1 and BRCA2 genes will engender research and genetic testing alternatives, while reducing costs and increasing availability for women to receive testing. The foundational assumptions of the case therefore remain within modes of biopolitical governance. Its aim is to give women more testing alternatives, further entrenching women within a field of biopower compelling them to undergo genetic testing and assessing their potentiality as “pre-patients” for breast cancer.71 Ensuring alternative genetic tests for breast cancer is a worthwhile goal. Concerns over equality and access to such tests continue to be salient. Yet, women are obliged to seek genetic testing within an inequitable terrain that fails to provide the material resources for all women to receive such testing. It remains unclear if testing technologies will in fact materialize once Myriad’s gene patents are invalidated. Even if more testing options do become available, there is uncertainty as to whether or not women will have adequate insurance and levels of income to take advantage of them. It is also unclear if more testing options will lead to more meaningful information for patients and better practices of genetic counseling. Neoliberal, biopolitics governs the health of populations through narrowly constrained choices involving limited technologies. Resources are devoted to genetic screening, while cancer causing carcinogens remain within the very cleaning products and food supplies women consume on a daily basis. In other words, Western epistemologies of science emphasizing genetic research are upheld through normative scripts of scientific knowledge production, while basic public health initiatives are not prioritized. Therefore the ACLU case, while admirably striving for increasing genetic screening technologies, remains within a field of biopolitics regulating women’s bodies and labor within an uneven terrain. Women’s rights to health and conditions of labor continue to be constrained.