Federal Appeals Court: Michigan’s Newborn Blood Screening Program Is Constitutional
The Michigan Department of Health and Human Services was wrongly ordered to return or destroy the plaintiffs’ stored blood spots and data that had been collected under Michigan’s newborn health screening program, the 6th U.S. Circuit Court of Appeals has ruled.
It is the second time the 6th Circuit issued an opinion in Kanuszewski, et al. v Michigan Dep’t of Health and Human Services, et al. (Kanuszewski II) (Docket No. 23-1733) concerning the constitutionality of the newborn health screening program administered by the Michigan Department of Health and Human Services (MDHHS). Under the program, the State of Michigan collects blood samples from newborn babies and screens them for diseases. Every state has a similar program and more than 98 percent of children born in the United States are tested at birth.
The plaintiffs in Kanuszewski are four parents and their nine children. Pursuant to MCL 333.5431, the newborns had their heels pricked and blood drawn as part of the Michigan screening program. The plaintiffs subsequently filed suit against the MDHHS, claiming the program involves “coercive, non-consensual taking and keeping of baby blood for the state’s profit, in violation of the Fourth and Fourteenth Amendments.”
In 2019, the 6th Circuit affirmed the U.S. District Court, Eastern District of Michigan’s dismissal of the plaintiffs’ Fourth Amendment claims, except those claims against the individual defendants in their official capacities “to the extent that those claims [sought] injunctive and declaratory relief in connection with” the defendants’ “ongoing retention, transfer and storage of blood samples.” Regarding the latter claims, the 6th Circuit reversed and remanded the case (Kanuszewski v Michigan Dep’t of Health and Human Services, 927 F.3d 396 (6th Cir. 2019) (Kanuszewski I)). On remand, the federal district court granted judgment in the plaintiffs’ favor on nearly all the remaining claims. The district court also ordered the defendants to return or destroy the stored blood spots and data that had been collected under the program.
In this second appeal, the 6th Circuit reversed the federal district court’s decision, finding it “over-extended our prior opinion’s holdings and failed to apply the law to the facts as developed during discovery.” As a result, the 6th Circuit “reverse[d] the district court’s judgment in plaintiffs’ favor on all Fourteenth and Fourth Amendment claims and vacate[d] the injunction requiring defendants to destroy the stored data.”
Judge Richard Allen Griffin wrote the opinion, joined by Judge John B. Nalbandian and Judge Andre B. Mathis.
Preliminary Issues
At the outset of its opinion, the 6th Circuit rejected the plaintiffs’ claim of mootness, finding that appellate review was not limited to an injunction that had gone into effect while the appeal was pending. “Although we cannot order plaintiffs to return the blood spots that they destroyed per the injunction, the underlying constitutional challenges are not moot on appeal because we can still affirm or reverse the district court’s judgment.”
The 6th Circuit also rejected the plaintiffs’ argument that the panel was bound by the law-of-the-case doctrine. This doctrine precludes reconsideration of issues that a court decided explicitly or implicitly “by necessary inference” at an earlier stage in the case. The plaintiffs contended that because they proved most of the facts of their complaint through discovery, the 6th Circuit did not need to revisit its prior decision and, instead, should hold (as did the district court) that Kanuszewski I dictated judgment in their favor.
“We cannot agree,” the 6th Circuit said. “In Kanuszewski I, we appropriately assumed that the complaint’s allegations regarding medical treatment, searches, and seizures were true. But we neither ‘considered’ nor ‘consciously resolved’ whether each of defendants’ discrete actions following the taking of the plaintiff-children’s blood actually constituted medical care under the Fourteenth Amendment or a search or seizure under the Fourth Amendment.”
Fourteenth Amendment
Turning to the plaintiffs’ Fourteenth Amendment claim, the 6th Circuit noted they argued the defendants violated the substantive due process of 1) the “children’s right to refuse medical treatment” and 2) the “parents’ own fundamental liberty interest in the care, custody and management of their children.”
The 6th Circuit pointed out that, although the defendants conceded “the initial heel prick and screening were ‘medical in nature,’” they maintained the post-screening conduct at issue in the appeal was not medical “because it d[id] not implicate plaintiffs’ bodily integrity.”
Moreover, the 6th Circuit observed that its prior decision in the case did not analyze whether each challenged action constituted medical care. “And the district court failed to do so on remand. We must now determine, in the first instance, whether defendants’ actions that are at issue in this appeal – storing anonymized blood spots and using them for purposes beyond the child’s medical diagnosis or treatment – impede plaintiff-parents’ fundamental right to direct the medical care of their children. As set forth, they do not.”
In its analysis, the 6th Circuit specifically referenced Capen v Saginaw County, 103 F.4th 457 (6th Cir. 2024). “Our recent decision in Capen – where we held that a state’s mandatory psychological fitness-for-duty evaluations did not violate an employee’s right to refuse unwanted medical treatment – is particularly illustrative. … We upheld the state’s rule because the employee ‘was not forced to accept any treatment’ and because ‘the purpose of the evaluations appeared to be descriptive,’ seeking only ‘to collect information from [the employee] and render a conclusion based on that information, rather than order him to make particular treatment decisions.’ … Although the psychologist recommended that the employee seek further mental health treatment, counseling (beyond the evaluation) was not a condition of employment. … We therefore concluded that the employee was ‘not forced to seek what we would commonly understand to be treatment.’”
Considering case precedent, “we hold that plaintiffs have failed to show that defendants’ conduct at issue – retention and use of the dried blood spots and data – implicates the parents’ right to direct the control of their children’s medical care,” the 6th Circuit wrote. “Under no reading of the caselaw can one argue that the literal act of storing involves medical treatment, diagnosis, or advice, or that this act intrudes on bodily integrity. Nor do the other uses – quality assurance, test improvement, test development, research, and victim identification – constitute medical care for the child who provided the blood spots. While they may ‘help[] to ensure accurate and timely screening for other babies,’ plaintiffs concede that ‘general public health research is not directly connected to the specific care of the peculiar newborn Michigan children.’ In fact, the consent form signed by some plaintiff-parents affirms: ‘Most likely you or your child will not benefit from blood spot research.’ And plaintiff-parents do not have a fundamental right to direct the medical care of other children. In sum, plaintiffs failed to prove that any of these actions touch on their decision-making with respect to their children’s medical care.”
Although the plaintiffs “strongly oppose[d]” the defendants’ storage and research of their children’s blood spots and data, “we cannot elevate every concern to a ‘fundamental right,’” the 6th Circuit emphasized. “The actual proposed ‘right’ at issue here – the freedom to refuse to have one’s child’s blood spots anonymized, stored, and used for purposes wholly unrelated to the child’s medical care – has not been recognized by any court and is, at best, tenuously related to plaintiff-parents’ liberty interests in protecting their children’s bodily integrity insofar as the dried blood spots are (or were at some point) part of the body. Such extrapolation is too abstract to constitute an objective, historically rooted fundamental right. Nor do defendants’ actions infringe any other well-established fundamental right of parents to direct their child’s upbringing, education, care, custody, or control. … With no fundamental right infringed, our analysis ends here.”
Accordingly, the 6th Circuit reversed the federal district court’s order granting summary judgment in the plaintiffs’ favor, concluding the defendants’ storage and use of the dried blood spots and data did not violate Fourteenth Amendment substantive due process guarantees.
Fourth Amendment
Next, the 6th Circuit addressed the plaintiffs’ argument that the defendant violated the children’s Fourth Amendment rights by storing and using the blood spots and data without consent.
At the outset, the 6th Circuit noted that a seizure “affects only the person’s possessory interests; a search affects a person’s privacy interests.” In granting judgment for the plaintiffs, “the district court conflated these distinct concepts, focused solely on plaintiffs’ alleged privacy interests, and concluded that all of defendants’ conduct fell under the Fourth Amendment. … [T]his was erroneous. We therefore consider anew whether each challenged action – dried blood spot storage; data storage; and use of the dried blood spot for research, equipment calibration, test improvements, and victim identification – was an unreasonable search or a seizure under the Fourth Amendment.”
Here, “much of defendants’ conduct is not a search because it is not ‘an attempt to find something or to obtain information,’” the 6th Circuit observed. “For instance, defendants’ uses of the stored blood spots for equipment calibration and improving screening program tests are not searches because they do not reveal any information about the individual plaintiff-children. Likewise, defendants’ transfer of the blood spots to private third parties are not searches. Those transfers, without research, do not reveal any information to the government.”
In certain circumstances “when the government encourages and endorses blood or urine testing by third parties, such testing can be attributed to the government,” the 6th Circuit acknowledged. “And there is evidence that the state encourages third-party research of blood spots, given Michigan’s statutory authorization of research … and MDHHS’s strong support for the … program. But here, the third-party researchers do not obtain private information about individual plaintiff-children because all blood spots are anonymized. Indeed, similar claims about anonymized information have been litigated in several of our sister circuits, and none of those courts have recognized a privacy interest in information revealed to third parties that is not personally identifiable.”
Meanwhile, the plaintiffs’ claim concerning the defendant’s use of the blood spots for victim identification “is not justiciable,” the 6th Circuit said. “Defendants never used, or even attempted to use, plaintiff-children’s blood spots for victim identification. This fact, alone, is dispositive – the Fourth Amendment protects against actuality not potentiality. … Moreover, even if defendants sought to use a plaintiff-child’s blood spots for victim identification, defendants would do so only if a family member consents or if the police obtain a warrant or subpoena. A claim that is ‘dependent on contingent future events that may not occur as anticipated, or indeed may not occur at all, … is not constitutionally ripe.’ … Because defendants’ policy has not caused any injury in fact to plaintiffs – one that is ‘concrete and particularized’ and ‘actual or imminent,’ … – plaintiffs lack constitutional ripeness and standing to bring this claim …. We therefore reverse the district court’s entry of judgment in plaintiffs’ favor on the Fourth Amendment claims.”
As a result, “[t]hat leaves us with one remaining challenged action – defendant’s retention of dried blood spots and data,” the 6th Circuit explained. “We analyze that retention as a potential seizure, not as a search, because it involves MDHHS’s exercise of ‘dominion and control over’ the dried blood spots and data.”
According to the 6th Circuit, the plaintiffs had to prove the following to prevail:
they had a possessory interest in the property.
the government meaningfully interfered with that possessory interest.
that interference was unreasonable.
“Plaintiffs stumble on the first element – they fail to prove that they had a possessory interest in the blood spots and data,” the 6th Circuit said. The federal district court “relied on our prior opinion, stating that we ‘ha[d] already answered the … question.’ … But as set forth, our prior opinion assumed without deciding that plaintiffs had a possessory interest sufficient to establish a Fourth Amendment seizure claim.”
Michigan’s state courts “have only obliquely discussed whether individuals have a possessory interest in their blood spots or associated data,” the 6th Circuit wrote. “In reference to evidence about blood alcohol content, the Michigan Court of Appeals once mentioned that a criminal defendant ‘voluntarily surrendered her possessory interest in the blood sample’ such that ‘there is no basis on which defendant can object to the seizure of her blood.’” However, the 6th Circuit said the blood sample collected in that case (in connection with a drunk-driving arrest) differed from the dried blood spot cards the defendant collects from newborns under Michigan’s screening program, as well as from the demographic data that the defendant digitally stores.
“Neither we nor the district court on remand need to resolve this important state-law question concerning possessory rights because plaintiffs failed to prove their claim,” the 6th Circuit concluded. “At no point, in their complaint, in briefs before the district court, or on appeal, did plaintiffs support that they have a property interest in the dried blood spots and data, let alone satisfy their burden of proof. Plaintiffs assumed without offering a single case, statute, or argument that they have a property interest in the blood spots and data – an essential component of a seizure claim. Because they did not prove a property interest, we reverse the district court’s judgment in plaintiffs’ favor as to the Fourth Amendment seizure claims.”
