The Volokh Conspiracy
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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….