SUPREME COURT NOTEBOOK

Judges can rule on passport law By Jesse J. Holland Associated Press WASHINGTON (AP) -- The Supreme Court ruled Monday that the federal courts should decide whether a law that would allow Jerusalem-born Americans to list Israel as their birthplace on their U.S. passport passes constitutional muster. The justices, on an 8-1 judgment, overturned a lower court ruling that said the judiciary could not get involved in a political fight mixing Middle Eastern politics with a dispute between Congress and the president. "The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the (U.S.) Constitution," said Chief Justice John Roberts, who wrote the majority opinion. But because the lower courts never actually ruled on the merits of the law giving Americans born in Jerusalem the right to have Israel listed as their birthplace -- only that judges should not get involved -- Roberts said the high court did not have enough facts to determine the law's constitutionality. "Ours is a court of final review and not first view," said Roberts, who sent the case back down to the lower courts for rehearing. The parents of Jerusalem-born Menachem Zivotofsky sued the State Department after it would not issue the boy a passport showing he was born in Israel. The United States has refused to recognize any nation's sovereignty over Jerusalem since Israel's creation in 1948, so his passport only says "Jerusalem" as his birthplace. At the time, Jerusalem was divided, with Israel controlling the western part of the city and Jordan holding sway over the eastern sector that includes key Jewish, Muslim and Christian holy sites. Israel captured east Jerusalem from Jordan in the 1967 Mideast war, annexed the area and proclaimed the once-divided city as its capital. The Palestinians claim east Jerusalem as their capital. The international community does not recognize the Israeli annexation and says the fate of the holy city should be resolved through negotiations. Congress passed the law seeking to give Americans born there the right to have Israel listed as their birthplace in 2002; but Republican and Democratic administrations have refused to enforce it. The government said the passport policy is in line with longstanding U.S. foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians. Justice Stephen Breyer was the only dissenter on the court, saying there is a "serious risk" that judicial "intervention will bring about 'embarrassment,' show lack of 'respect' for the other branches, and potentially disrupt sound foreign policy decision making." The U.S. Court of Appeals for the District of Columbia Circuit agreed, saying that the federal judiciary has no authority to consider the matter, which they have labeled a political dispute that is best resolved by the other two branches of government without court involvement. The Obama administration, like its Republican and Democratic predecessors, says it does not want to stir up anger in the Arab world by appearing to take a position on the ultimate fate of Jerusalem. But Roberts said the question before the court is not a political one. "The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts' own unmoored determination of what the United States policy toward Jerusalem should be," Roberts said. "Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the judiciary must decide if Zivotofsky's interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise." The passport restriction applies to people born anywhere in Jerusalem, including the hospital in the western part where Menachem was born in 2002. In late 2002, Naomi Zivotofsky, Menachem's mother, showed up at the U.S. embassy in Tel Aviv to get her baby a U.S. passport, one that listed Israel as his birthplace. After State Department officials refused her request, the family sued. The family argues that the State Department has made an exception for U.S citizens born in Taiwan. Their passports may list their place of birth as Taiwan, rather than China. They also note that the State Department gives people born before Israel's creation in 1948 the option to say they were born in Palestine. Court won't hear appeal on hormone therapy law WASHINGTON (AP) -- The Supreme Court won't consider reinstating a Wisconsin law banning publicly-funded hormone therapy for inmates who identify as transgender women. The high court on Monday refused to hear an appeal from state officials, who have been trying to get the 2005 law reinstated since it was blocked by a federal judge weeks after its passage. The 7th U.S. Circuit Court of Appeals ruled last year that the law violates a constitutional ban on cruel and unusual punishment because it denies medical treatment. Some of the plaintiffs had been on hormones for years before the law was passed. Wisconsin state officials passed the law after an inmate who had received hormone therapy filed a lawsuit to try to force the prison to pay for his sex change. Human gene patents thrown out by justices WASHINGTON (AP) -- The U.S. Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. Myriad's BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer. The American Civil Liberties Union has been arguing that genes couldn't be patented, a position taken by a district court judge but overturned on appeal. The justices' decision sends the case back down for a continuation of the battle between the scientists who believe that genes carrying the secrets of life should not be exploited for commercial gain and companies that argue that a patent is a reward for years of expensive research that moves science forward. In 2010, a federal judge ruled that genes cannot be patented. U.S. District Judge Robert Sweet said he invalidated the patents because DNA's existence in an isolated form does not alter the fundamental quality of DNA as it exists in the body nor the information it encodes. But last year, a divided panel of the federal appeals court in Washington that handles patent cases reversed Sweet's ruling. The appeals court said genes can be patented because the isolated DNA has a "markedly different chemical structure" from DNA within the body. The Supreme Court threw out that decision, and sent the case back to the lower courts for rehearing. The high court said it sent the case back for rehearing because of its decision in another case last week saying that the laws of nature are unpatentable. In that case, the court unanimously threw out patents on a Prometheus Laboratories, Inc., test that could help doctors set drug doses for autoimmune diseases like Crohn's disease. "The question before us is whether the claims do significantly more than simply describe these natural relations," said Justice Stephen Breyer, who wrote the opinion in the Prometheus Laboratories case. "To put the matter more precisely, do the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent-eligible processes that apply natural law? We believe the answer to this question is no." The U.S. Patent and Trademark Office has been awarding patents on human genes for almost 30 years. Testing for mutations in the so-called BRCA genes has been around for just over a decade. Women with a faulty gene have a three to seven times greater risk of developing breast cancer and a higher risk of ovarian cancer. Men can also carry a BRCA mutation, raising their risk of prostate, pancreatic and other types of cancer. The mutations are most common in people of eastern European Jewish descent. Myriad Genetics Inc. sells the only BRCA gene test. Justices won't get involved in Florida tobacco case WASHINGTON (AP) -- The Supreme Court is refusing to overturn a $28.3 million verdict against R.J. Reynolds Tobacco Co. in the first of about 8,000 lawsuits that have been filed against cigarette companies in Florida. The high court on Monday refused to hear appeals of a Pensacola, Fla., jury's award to the family of Benny Martin, who died of lung cancer in 1995. R.J. Reynolds lawyers argued that the case should be overturned because Florida judges aren't making plaintiffs prove cigarette makers knowingly sold dangerous and defective products. People suing cigarette companies only have to prove addiction, and that their illnesses, or deaths of family members, were caused by cigarettes. The cigarette company says that standard violates due process. But the Supreme Court -- without comment -- refused to hear their argument. Published: Wed, Mar 28, 2012