Throughout the United States of America, every time a new baby is born, state medical professionals draw blood from the baby’s heel and place it on a screening card. The blood is then tested for a variety of different genetic disorders. The state programs perpetuate an important government interest of providing children, parents, and doctors with critical information for detecting genetic diseases. Nationally, every year four million babies will have their blood drawn and screened, but some doubts have begun to arise about these programs.
Many states offer parents the ability to opt out on valid religious grounds, but otherwise, they will have to participate in the newborn screening program. These programs are effective at protecting the life of a child, but legal issues arise when there has been improper informed consent. Some states choose to store the blood of the newborn child for years or decades after the original drawing, creating a multitude of constitutional law issues when the information is sold without informed consent or is accessed for criminal investigations.
This Comment will not address the criminal implications of the blood drawing program under the Constitution. Instead, it will analyze a current lawsuit in the United States District Court for the Eastern District of Michigan over the drawing and storage of children’s blood without a parent or guardian’s informed consent. The district court dismissed the Plaintiff’s original complaint using rational basis review. However, the Sixth Circuit overturned the district court’s ruling on the continued storage of the blood by creating a fundamental right for parents to control their children’s medical care. The Sixth Circuit’s ruling was decided before Dobbs v. Jackson Women’s Health Organization solidified the conservative Supreme Court’s substantive due process analysis that solely relies on the United States’ traditions and history. On remand, the district court opined that the “Sixth Circuit did not address the Nation’s history or tradition of parents’ right to direct their children’s medical care or how that right is implicit in the concept of ordered liberty”; instead, the Sixth Circuit merely announced “that the Constitution ‘would seem to naturally include parents’ right to direct their children’s medical care.’”
