Parental Rights

Court Upholds Mandatory Newborn Health Screening Program,

rejecting Fourth Amendment and substantive due process arguments against it.

|The Volokh Conspiracy |

From Judge Thomas L. Ludington's opinion in Laporte v. Gordon, 2020 WL 1429496 (E.D. Mich. Mar. 24):

All 50 states have newborn screening programs for at least 29 health conditions. The screening process is begun by withdrawing a few drops of blood from a baby's heel 24 to 36 hours after a child's birth. Five or six spots of the blood are maintained on a filter paper card and then sent to the State Newborn Screening Laboratory for testing. The child's primary medical care provider is informed immediately of any adverse health test result. CDC data show that nationally about 12,500 newborns each year are diagnosed with a condition identified through the newborn screening program. "Approximately 6.9 million Michigan newborns have been screened with more than 7,200 babies identified with disease and treated early for disabling and life threatening conditions." …

The parent or legal representative of a newborn child decides whether all remaining blood samples should be destroyed, only blood samples stored for research should be destroyed, or the blood spots may be stored but not used for research purposes….

Plaintiffs … claim that Defendants violate the Fourth Amendment during the initial extraction of the blood spots from the newborns.

Plaintiffs allege in their motion for preliminary injunction that the Supreme Court has established that taking blood samples without first obtaining a warrant is a per se unreasonable search without an exception to the warrant requirement. Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016). Plaintiffs further contend that the testing of the blood spots reveals "highly personal and deeply private genetic/medical information" and is a second violation of the Fourth Amendment. Defendants respond that the "heel stick" is not a search and even if it is, it is subject to the special needs doctrine and community caretaker exceptions to the warrant requirement.

This exact issue was previously addressed with the same Plaintiff, in Kanuszewski v. Michigan Department of Health and Human Services, 333 F. Supp. 3d 716 (E.D. Mich. 2018) [which the Sixth Circuit reversed in part, largely on procedural grounds -EV]. This Court held that "a government mandated blood test that involves a non-consensual invasion of bodily integrity, constitutes a search even if the information derived from that search is not used for law enforcement purposes." This Court continued to explain that in "special needs cases, courts are tasked with balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate government interests." In Dubbs v. Head Start, Inc the 10th Circuit identified three features that special needs exception cases seem to share,

"(1) an exercise of governmental authority distinct from that of mere law enforcement—such as the authority as employer, the in loco parentis authority of school officials, or the post-incarceration authority of probation officers; (2) lack of individualized suspicion of wrongdoing, and concomitant lack of individualized stigma based on such suspicion; and (3) an interest in preventing future harm, generally involving the health or safety of the person being searched or of other persons directly touched by that person's conduct, rather than of deterrence or punishment for past wrongdoing."

This Court held [in Kanuszewski] that "state-mandated blood screening meets all three criteria. The exercise of governmental authority to advance public health is entirely distinct from law enforcement objectives. The mandatory blood screening applies to all infants, and involves no individualized considerations of wrongdoing. The Newborn Screening Program is also designed to protect the health and safety of the infants by facilitating early diagnosis, treatment, and prevention." This Court also explained how Kanuszewski differed from Dubbs, including that Defendants are following a statute in this case and that "the nature of the intrusion on Plaintiffs' privacy is minimal when compared to the state's interest in protecting infant health." The Court has not been persuaded to the contrary. Accordingly, Plaintiffs are unlikely in this Court's view of the legal authority to prevail on the merits of their Fourth Amendment claim…..

[As to the claim of a substantive due process right to direct their children's medical care,] the Sixth Circuit found that the program is subject to strict scrutiny…. However, that does not in this Court's view increase Plaintiffs' likelihood to prevail on the merits.

The state tests the blood of newborns to determine if the newborn faces a life-threatening disease. There is Supreme Court precedent that mandatory vaccination laws (if the law contains a medical exemption) are constitutional. Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). Similarly, the Sixth Circuit concluded that it is not a violation of the First Amendment for parents to be required to listen to an explanation about the risks of not vaccinating a child before being able to obtain a religious exception waiver, Nikolao v. Lyon, 875 F.3d 310 (6th Cir. 2017). The Supreme Court has explained that "parents generally 'have the rights, coupled with the high duty, to recognize and prepare [their children] for additional obligations.' Surely, this includes a 'high duty' to recognize symptoms of illness and to seek and follow medical advice."

However, the Court has also cautioned that while "Parents may be free to become martyrs themselves [ ] it does not follow they are free, in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Plaintiffs have not demonstrated they are likely to prevail on the merits of the case. The first prong favors Defendants….

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  1. I just learned about an FDA rule where citizens can be enrolled in medical experiments without their informed consent. I discovered that myself and my family were enrolled into some horrific medical experiment without our knowledge or consent. It’s unbelievable.

    The people in government do not respect the 4th Amendment and will find any excuse they can to control you and your bodies.

    1. I may regret this, but I’ll bite. Can you cite the FDA rule and enlighten us on the medical experiment?

      1. Here is the FDA rule for Exception from Informed Consent Requirements:

        https://www.fda.gov/regulatory-information/search-fda-guidance-documents/exception-informed-consent-requirements-emergency-research

        I do not wish to share with you the particular experiment since that could be used to identify me, given past statements I’ve made describing my faculty position.

        1. Sorry, Sam, but that doesn’t sound like what you describe. Among other things, you are obviously capable of giving consent, as is, presumably, your wife on your behalf if necessary.

          So how can you be affected by this?

          And what should be done in these cases?

          These investigations involve human subjects who have a life-threatening medical condition that necessitates urgent intervention (for which available treatments are unproven or unsatisfactory), and who, because of their condition (e.g., traumatic brain injury) cannot provide informed consent. The research must have the prospect of direct benefit to the patient and must involve an investigational product that, to be effective, must be administered before informed consent from the subject or the subject’s legally authorized representative can be obtained and in which there is no reasonable way to identify prospectively individuals likely to become eligible for participation.

          I can understand objecting to this – I’m not sure I like it myself – but they are hardly grabbing you off the street for experimentation.

          1. “So how can you be affected by this?”

            Our geographic area was enrolled in a medical experiment and no one was told about it. If myself or my wife were to have a medical emergency we could become unwitting participants in this medical experiment. We weren’t told about the experiment, we weren’t told how to opt-out we weren’t told anything.

            1. The research must have the prospect of direct benefit to the patient

              Unless that medical experiment is a panacea, this does not cover you or your wife being experimented on.

            2. If myself or my wife were to have a medical emergency we could become unwitting participants

              This parade of conditional is not at all the same as myself and my family were enrolled into some horrific medical experiment without our knowledge or consent.

              Is your faculty position at drama school?

              1. https://www.dallasnews.com/news/watchdog/2017/07/28/you-could-be-part-of-a-medical-experiment-that-almost-no-one-knows-about-not-even-you/

                Note the part about the deaths. And I don’t know how else to describe it when the EMS serving your area are trained and authorized to conduct an experiment upon you other than you being enrolled into a study unknowingly.

                You may wish to tone police in order to pink wash the truth, but doesn’t change the bottom line that entire populations were unwitting participants in medical experiments. Just because the experiment isnt triggered on you until you have a medical emergency doesn’t mean you aren’t enrolled into it.

                1. “tone police” – ?huh, who does “tone police(d) you, and with what particular word?

                  “pink wash” – is there some LGBTQ implication to this, and if not, then what?

                  “Just because the experiment isn’t triggered on you until you have a medical emergency doesn’t mean you aren’t enrolled into it.” What a bizarre understanding of “enrollment” when that would somehow come about though your mere existence need not be know to them, let alone your name, gender, age and other basic identifiers.

                  1. “tone police” – ?huh, who has “tone police(d)” you, and with what particular words?

                    “I do not wish to share with you the particular experiment since that could be used to identify me, given past statements I’ve made describing my faculty position.” For those of us who have not seen those “past statements (you’ve) made describing (your) faculty position,” how about repeating them here. It might help us understand your rather singular concerns.

                    Are you by any chance an “anti-vaxxer”?

                    1. If by “anti-vaxxer” you mean being aware of the $4B paid out to vaxx victims, aware of the special extra-judicial no fault vaccine court that protects Big Pharma from any product liability, and generally skeptical of Big Pharma and the people in government who are susceptible to being influenced by them, then yes I am an anti-vaxxer.

                      If on the flipside, being a pro-vaxxer would mean uncritically accepting what the people in government and Big Pharma say I need to medicate with then ignorantly following their orders like a dumb sheep, then no I am not a pro-vaxxer.

                      Or lining the pockets of Big Flu every year to medicate against a condition where my risk is a few days of the sniffles with a drug that has a 30% chance of working and often causes the same symptoms you are trying to avoid, then no I am not a pro-vaxxer.

                    2. Oh, dear.

                  2. Yeah, how upset you people are with my word choice is you tone policing. Pink washing is because I like pointing out Sarcastro’s lifestyle choices.

                    “What a bizarre understanding of “enrollment” when that would somehow come about though your mere existence need not be know to them, let alone your name, gender, age and other basic identifiers.”

                    How would you describe the population if an entire geographic region being selected as eligible participants for these types of sonewhat secret studies?

                    1. Of not if*

  2. I didn’t see compelling state interest here — exactly WHAT would potentially be identified & treated, and why wouldn’t a competent doctor notice something was wrong with the infant otherwise?

    1. There are metabolic disorders that do not become apparent for months, even years, that are easily treated when found early (for example, an inability to metabolize phenyalanine).

      There are also untreatable disorders, sadly, that cam be diagnosed early and that, again, do not manifest themselves for some interval of time.

  3. ” However, the Court has also cautioned that while ‘Parents may be free to become martyrs themselves [ ] it does not follow they are free, in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.’ ”

    That’s a bingo!

    1. True, but that’s why I always hated Wisconsin v. Yoder.

  4. “tone police” – ?huh, who has “tone police(d)” you, and with what particular words?

    “I do not wish to share with you the particular experiment since that could be used to identify me, given past statements I’ve made describing my faculty position.” For those of us who have not seen those “past statements (you’ve) made describing (your) faculty position,” how about repeating them here. It might help us understand your rather singular concerns.

    Are you by any chance an “anti-vaxxer”?

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