Michigan defends baby blood screening at Sixth Circuit

(CN) — The state of Michigan asked a three-judge panel of the Sixth Circuit on Thursday to reverse a lower court ruling that found its collection and testing of newborn blood samples was in violation of civil rights protections.

The Michigan health department’s newborn screening program tests blood spots taken from newborn babies for more than 50 diseases and disorders, including heart problems and hearing loss. It has identified conditions in more than 250 newborn children per year, health officials say, which helps parents start early treatment.

But a group of parents who filed suit in 2018 say they didn’t give consent for the state to obtain and store blood samples of their collective nine children after testing. In 2023, a federal court agreed the state violated their rights and ordered it to turn over the plaintiffs children’s blood samples. While they state complied, it appealed to the circuit court.

Michigan Assistant Attorney General Daniel Ping represented the state during the almost 40-minute oral argument and championed the success of the program.

“Michigan’s Newborn Screening Program and the bio trust for health do immeasurable life saving work for Michigan families,” Ping said. “The program has saved thousands of babies.”

He said there’s no evidence to support privacy concerns raised in the lawsuit, arguing “95% of that complaint was disproved.”

The judges questioned Ping about how the blood samples might be used in criminal or other law enforcement matters.

“But how does it work, like when there’s a victim?” asked U.S. Circuit Judge Andre Mathis, a Joe Biden appointee. “Are all these specimens tested and compared against the known victim’s DNA?"

Ping replied that samples are not used without the consent of the child’s guardian and parents receive information when their child is born about how the samples may be used.

Attorney Philip Ellison represented the families and argued that the case hinges on both privacy concerns and the property interest in the samples and data. “The data itself has been seized. After the testing is done, that data should have been automatically destroyed, because what is at the heart of this entire case is parental consent,” Ellison said.

Michigan allows the samples to be held for up to 100 years and gives families the option to destroy the samples if they wish. Since 2010, families can opt out of having the samples used in medical research.

Ellison’s argument that the state has no legal property interest in the samples, and that such an interest would only be with the parents, appeared to fall flat with U.S. Circuit Judge Richard Griffin.

“I think there’s an absence of a claim of property interest,” said Griffin, a George W. Bush appointee. “I think there’s a lack of proof of a property interest, that’s all.”

In response, Ellison said the blood and data must have a legal definition under Michigan law, and no prior court decision has provided specificity on the matter.

“I would take the position that at least the blood spots implicate a privacy interest — and then of course the data itself, which was created and extracted from the blood spots themselves, becomes a type of property interest, because the state has at least treated it that way,” Ellison said.

U.S. Circuit Judge John B. Nalbandian, a Donald Trump appointee, rounded out the panel.

No timetable was given on when a decision would be issued.