It Is So Ordered: Orphan Black And The Law

Orphan Black is a lot like the law: it is all about the way people and their objectives and their actions are at odds with “the system.” It’s not really surprising, because law and TV both follow the groundswell of society. Orphan Black and the U.S. Supreme Court syllabus boast many of the same themes: corporate identity, scientific ownership of living things, the right to control your body and life, and the right to exist as yourself, whatever and whoever that is. Here’s a rundown of just some of the U.S. Supreme Court cases that are relevant to the themes of Orphan Black. [While I know Orphan Black is a Canadian production, I’m not a Canadian lawyer – hence the U.S. focus.]

Gene Patents and Myriad

The Issue:

Patents for human products may sound hyper-modern, but in 1906 a patent for isolated, purified adrenaline filed by P.T. Westmoreland was upheld in court. Judge Learned Hand (my long-time favorite name of a legal figure, and maybe of a human) theorized that even “if it were merely an extracted product without change, there is no rule that such products are not patentable.”  By 2011, thousands of unaltered yet isolated human genes had been patented. Some argued that such patents fostered scientific progress – a fat cash incentive for labs and pharmaceutical companies to be the first to isolate a particular gene. Others maintained that these patents deterred scientific collaboration and led to price-gouging for testing of genetically-linked diseases.

The Case:

In Association For Molecular Pathology v. Myriad Genetics, Inc, Myriad owned the patent for the isolated BRCA1 and BRCA2 genes (AKA the breast cancer genes). The company enjoined other genetic testing labs from isolating BRCA DNA, which they challenged. The question: is uncovering the precise location and genetic sequence of the BRCA genes on their chromosomes an invention of “new and useful composition,” or was Myriad staking claim to naturally-occurring phenomena? The answer: mere isolation of a gene or genes is not patentable, although genes that have been altered may be patented, as may complementary DNA, or cDNA, an exons-only molecule created from mRNA.

Meanwhile, On Orphan Black:

In Orphan Black terms: if Dyad merely mapped the Leda DNA, they could not patent the genetic sequences — even if, say, they isolated the genes responsible for Kira’s fast healing. However, if they isolated Kira’s miraculous car accident genes and created cDNA, that could be patented, as could a protein therapy derived from modified cDNA. Even assuming Dyad HAD successfully patented all or part of the Leda DNA back in the ’80s, this would not mean that Dyad owned the clones themselves: rather that they retained the right to create derivative products based on that DNA.


The Right To Privacy and Griswold

The Issue:

The worst part about being an Orphan Black clone, for me, would be having to look my own face in the face all the time. The second-worst part would be the invasion of privacy. Finding out your partner is actually a monitor? It’s like the WORST secret three-way call. And secret spy-eyeballs? I don’t even like touching regular eyeballs. The right to privacy involves more than just freedom from looky-loos and spyballs, though. In Constitutional terms it’s the right to make your own medical decisions, parenting decisions, and who-to-spend-time-with decisions without government intrusion.

The Cases:

In 1965, Griswold v. Connecticut arose because it was illegal for married people to obtain contraception in the state of Connecticut. [Or single people. But a physician who only works with married couples made a sympathetic plaintiff in Mad Men-era New England.] Although the Constitution and Bill of Rights do not explicitly protect the right to privacy, the Supreme Court looked to other cases where a right to privacy was implicit, like Pierce v. Society of Sisters (educating your children as you see fit) and Meyer v. Nebraska (educating your children as you see fit, in German).  The right to privacy lives in the “penumbras” formed by the “emanations” from the guarantees in the first amendment (freedom of association), third (freedom from quartering soldiers in your house which sounds like the ACTUAL WORST), fourth (freedom from unreasonable search and seizure), fifth (freedom from self-incrimination) and ninth (rights retained by the people).

The right to privacy was the basis for the landmark Roe v. Wade decision in 1973 and still comes up quite a bit in debates over abortion legislation, like that terrifying Arkansas law or the gross Oklahoma bill or this stuff that just went down in Texas. The Supreme Court invoked the right to privacy in Lawrence v. Texas, the case that invalidated Texas’s sodomy law in 2003. You read that right. 2003. Season two of American Idol was on. It wasn’t long ago.

Meanwhile, On Orphan Black:

Where does clone monitoring fit into this?  LEDA isn’t fronted by a government agency, (Castor, on the other hand…). But if the government were somehow involved in any number of the weird bodily invasions and intrusions into autonomy that have happened so far, you better believe it’s an overstep.  Still, the constitutional right to privacy is all over Orphan Black. It’s there in the neolutionists’ right to get weird tails and gross eyes. It is evident in  Henrik’s weird cult’s right to assemble (not to do all the other stuff they do –  but if they want to peacefully remake The Village, have at it). It’s even why Alison’s parents could have a child through in vitro fertilization.

Corporate Personhood And Citizens United

The Issue:

A series about an evil, life-controlling corporation could not be better timed. The titans of industry are a hot topic right now: can corporations generate enough revenue to boost the economy while complying with environmental regulations? (Yes.) Will reducing corporate taxes help or hurt the average citizen? (Meh.) Do corporate policies infringe on free speech? (Ugh.) Also, are corporations even people? (WAIT WHAT.)

The Case:

Citizens United v. Federal Elections Commission began, like every problem I can remember having, with a presidential election. A non-profit wanted to air an anti-Hillary Clinton film on TV prior to the 2008 primary, but electioneering funded by corporations and unions was prohibited by law. The Supreme Court ruled that the application of this law violates the First Amendment right to free speech – a right afforded to people, but fine.

The dissent noted that a corporation is at its core creepier than a plain old rich person, having ” ‘limited liability’ for their owners and managers, ‘perpetual life,’ […] unlike voters in U.S. elections, corporations may be foreign controlled […] Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”

So, yikes.

Meanwhile, On Orphan Black

On one hand, the Dyad Institute/Topside (and Big Cosmetics, for that matter) isn’t looking to finance any elections. But it’s precisely the corporate activities listed in the Citizens United dissent that make these corporations so dangerous. An individual doing half of the things Dyad does would be scary enough, but a corporation  has many of the rights of an individual actor with comparatively few responsibilities and WAY more money. Safely hidden behind the corporate veil, Dyad higher ups are not personally responsible for the corporations actions (okay, if courts ever pierce the corporate veil it might be for something like cloning actual humans, not to mention all the murders – so many murders? has anyone counted them all? – but still, the presumption is a lack of personal liability). Even in the non Orphan Black-world, corporations have individual rights like freedom of speech and freedom of religion (Hobby Lobby, your sale section was legit but the rest of you is NOT).


I’m fresh out of time, but the history and philosophy of law are full of topics that are relevant to anyone with an interest in Orphan Black – or the world around them – like the legal and medical ethics of research on human subjects. The history of this issue is – like all legal topics – about more than just the law, it’s about who society (and the law, as a tool of society) prioritizes.

Recommended reading:

The Immortal Life Of Henrietta Lacks

You’ve Got Bad Blood: The Horror Of The Tuskegee Syphilis Experiment

The Ethics Of Using Medical Data From Nazi Experiments

Where Are All The Female Test Subjects?

That should be just about enough to hold us all over until Saturday night, when I will be crying for a solid hour, and possibly then some. Check back with us tomorrow for some more Orphan Black fun that will be, I promise, a little less academic.


Hamilton Explained: Appointing A Supreme Court Justice

In this Very Special Edition of Hamilton Explained, we aren’t explaining lyrics from Hamilton. Instead, we are using Lin-Manuel Miranda’s lyrics to explain a hot topic of the day: the whys and hows of appointing a Supreme Court Justice when one dies, retires, or resigns.  Hamilton lyrics are in red and underlined.

  1. A Supreme Court justice is appointed for life. Sort of.

Supreme Court justices are Article III judges – federal judges whose powers and responsibilities are governed by Article III of the U.S. Constitution. The Constitution provides, in relevant part, “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” (U.S. Const., art. III, § 1).

Most justices appointed by Washington died or retired within several years.

John Marshall, a historical figure who deserves a rap musical of his own, was appointed by John Adams (“President John Adams” – Good luck). So was Bushrod Washington, among others. Both served for over 30 years. A precedent was set: Justices were able to serve until death. (For your love, for your praise
And I’ll love you till my dying days).

But to be honest, a life term was a bit shorter in the early 1800s. Sure, historical lifespan ranges are skewed by high infant mortality (Every other founding father gets to grow old), but the fact is that starting in the 20th century, justices lived considerably longer. John Adams (sit down John, you fat mother – [BLEEP!]) may not have predicted that. (See, I never thought I’d live past twenty; Where I come from some get half as many.)


Well … I should say that  Justices serve for life – if they want – as long as they exemplify “good behaviour” (You keep out of trouble and you double your choices). IRL, only one justice has ever been impeached.

2. There are reasons for the justices to sit on the bench until death, retirement, or resignation.

First of all, this alleviates partisan pressures – Justices don’t have to appease the party that nominated them (don’t let them know what you’re against or what you’re for) or make their decisions based on what will get them elected to, say, a senate seat in the future (if you stand for nothing, Burr, what will you fall for?).


… in one essay, Hamilton wrote: “nothing can contribute so much to its firmness and independence as permanency in office”.

When a Supreme Court Justice can make his or her decisions based on their clearest interpretation of the Constitution and judicial precedent, they are (we hope) making decisions that will benefit American law for centuries to come, instead of their own career (What is a legacy? It’s planting seeds in a garden you never get to see.)

3. Eventually, some people retire…

If I say goodbye, the nation learns to move on
It outlives me when I’m gone

While Washington set the precedent for the two-term limit, we tend to think of Marshall as the originator of the life term for Supreme Court justices, even though that’s not strictly true.

and others die.
You have no control: Who lives, who dies, who tells your story … or which Justice dies during your Presidential term, it goes without saying.

4. Let’s take it back to 6th grade: there are three branches of government operating under a system of checks and balances.

I’ve been reading Common Sense by Thomas Paine … which argued against the system of checks and balances. And another thing, Mr. Age of Enlightenment, the drafters of the Constitution (I was chosen for the Constitutional Convention!) had to revisit the philosophies (like Paine’s) that lead them to break from England in order to create a new system of government  (If we lay a strong enough foundation, We’ll pass it on to you, we’ll give the world to you).

The result: a legislative, executive and judicial branch organized under the Constitution and its ever-expanding list of amendments (The constitution’s a mess -So it needs amendments). It’s full of contradictions, So is independence.

Basically all of American government is organized under the mantra of “check yourself before you wreck yourself.” And, the judiciary doesn’t need to tailor its decisions to the whims of the current legislature (My power of speech: unimpeachable).

5. When a vacancy is created by death, resignation, retirement, or impeachment (sorry, Samuel Chase), the President nominates a new Supreme Court Justice.

Despite those tweets you saw from your one Tea Party Uncle, this isn’t at all up for debate and is actually an enumerated power in the Constitution. Your Tea Party Uncle probably claims to be a strict constructionist, so he should love this. “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…” (U.S. Const., Art. II).

There’s never been a case where the President has left nomination up to the Senate, nor could he, because again, the President nominating the Supreme Court is legit written in the Constitution (I’d rather be divisive than indecisive).

Other than the President choosing the nominee, there aren’t really any other enumerated requirements. Unlike the President, the Supreme Court justice does not need to have been born on American soil – A place where even orphan immigrants can leave their fingerprints and rise up. Typically a nominee will be trained as a lawyer, and often is a sitting District Court judge.

Another thing:  you get love for it. You get hate for it, You get nothing if you… Wait for it, wait for it, wait! Which is to say, the President has ALWAYS said “I am not throwing away my shot” and appointed a new Justice – because we NEED the Judicial branch in America, and I’m not just saying that because it’s my own pet branch of government, but also because the Constitution says that it’s his job.


6. The Legislative branch is responsible for vetting and confirming this Justice.

When it’s time for the Senate Judiciary Committee to hold confirmation hearings, they are typically subject to lobbying from special interest groups and their electors. You cannot discount how influential lobbyists can be: at worst, holding funding over a senator’s head, but at best, educating them on possible implications of their decisions on segments of the U.S. population (No one really knows how the Parties get to yess The pieces that are sacrificed in Ev’ry game of ches We just assume that it happens But no one else is in The room where it happens.)

During the hearings, the nominee is questioned by the Committee (Ask him a question: it glances off, he obfuscates, he dances). They cover the nominee’s basic history (What’s your name, man?) and judicial philosophy (He started retreatin’ and readin’ every treatise on the shelf), but nominees may refuse to answer questions.

The Committee then votes on whether the nominee’s appointment should go to a Senate vote with a positive, negative, or neutral vote. Most disputes die, and no one shoots and also most nominees do go to a vote on the Senate floor.

If they don’t reach a peace, that’s alright. The Senate has only formally rejected 12 nominees after a full confirmation hearing; the last time that happened was in 1987.

But if the Senate DOES fail to confirm, they still don’t get to nominate a candidate because that is the president’s job. (But they don’t have a plan, they just hate mine!)

7. In the meantime, what happens to cases decided by the dead Supreme Court Justice?

While the Senate is twiddling its thumbs and playing pick-up sticks, a slate of pending Supreme Court cases hangs in the balance. So if they’re tempted to drag out the process for political reasons… um… Are these the men with which I am to defend America?

The late Justice does not get a say in future votes, even if he indicated how he was going to vote (Uh… do whatever you want, I’m super dead.) With the number of Supreme Court Justices at an inconvenient eight, any cases with a 4-4 split are bound to the lower courts’ decision. The Court is permitted to continue hearing cases, but most appellees don’t want their cases heard by an even-numbered court – although you can always do what I do: play Fantasy SCOTUS with upcoming cases and predict where the votes will fall. Some cases seem almost guaranteed for an even split; others may be unaffected. The Court may vote to hold over cases that are likely to split 4-4, which is obviously a massive delay in cases that have usually been working their way up the chain for years by the time cert is granted.

8. The Justice is confirmed; America continues.

Supreme Court Justices pledge their careers – literally until death – to upholding the U.S. Constitution and the rule of law as they see it. Death doesn’t discriminate, Between the sinners And the saints It takes and it takes and it takes.
And we keep living anyway – the cases approved for this term must be decided. There is no stop-point with justice. Our founding fathers knew it, and we know it – there is no decision that the Court makes on ANY issue that will be its last one. Jurisprudence evolves as our nation does. Carrying on short an Associate Justice is simply not an option. 

However, there is a long list of qualified nominees, a President with the express power to appoint one, and a Senate full of politicians who we have elected because they have vowed to approve qualified nominees – and at that time, another Justice will don the robe and continue the work.

America, you great unfinished symphony, you sent for me