New Jersey Attorney General Matt Platkin has asked a judge to dismiss a federal lawsuit that aims to end the state’s two-year retention of blood samples taken from newborns under a mandatory disease-screening program. (Photo by Getty Images)
Attorney General Matt Platkin has asked a judge to dismiss a federal lawsuit several parents filed last year over New Jersey’s newborn disease-screening program, saying changes he made in June to restrict the retention and use of babies’ blood samples make the plaintiffs’ objections moot.
In a brief filed Monday, Platkin challenged the parents’ contention that the Department of Health’s long-term storage of the samples, which are known as blood spots, violates their children’s Fourth Amendment rights. That amendment protects “personal property” against “unreasonable searches and seizures,” but medical waste is not property, Assistant Attorney General Jean P. Reilly wrote on behalf of Platkin.
“Plaintiffs have no possessory interest in the spots left over from a heel prick authorized by law and unchallenged in this suit, much as a patient does not retain property rights in a nasal swab left over after a Covid-19 test,” Reilly wrote.
The filing comes almost a year after three parents, after learning police used newborn blood spots in several cases without obtaining warrants, sued the state for its practice of retaining newborn blood spots for 23 years for uses officials do not disclose. The parents want the state to destroy the spots after two weeks unless parents opt in and provide informed consent to their storage and subsequent use.
But Reilly argued Platkin’s new restrictions should erase privacy and consent concerns about the mandatory program, which screens for 61 disorders and marks its 60th anniversary this year.
Under a new directive, Platkin cut how long the state can store blood spots to two years for healthy babies and 10 years for those whose bloodwork detects disease. He also set stricter limits on — but did not forbid — law enforcement use of the blood spots. And under the new policy, parents can submit forms to request their newborns’ spots be destroyed when testing is complete.
Police use of blood spots already was “exceedingly rare,” Reilly wrote, noting they were obtained in five cases as of January 2023, in a state where 100,000 babies are born every year. With the new restrictions, she added, “such rare occurrences should become even rarer.”
Stored blood spots are used otherwise for just three reasons — for follow-up testing for the child, quality control, and new test development, she wrote. Spots stored for 10 years are de-identified, so pose no privacy risks, she added.
Reilly also dismissed as “unduly speculative” the parents’ concerns about how New Jersey might be using the spots beyond newborn disease, such as sharing them with the military to create a DNA database as Texas did or selling them to third parties as Michigan did.
“If Plaintiffs are concerned that Texas is ‘turning over blood to the Pentagon,’ then their quarrel is with Texas,” she wrote, adding: “If Plaintiffs’ imagined dystopian future ever did come to pass, then affected persons might well have claims to bring, depending on the facts.”
But Brian Morris, an attorney with the nonprofit Institute for Justice who represents the parents, said Platkin’s changes came only after two lawsuits over the program forced officials to act. The state Office of the Public Defender and New Jersey Monitor also sued the state in 2022 after officials refused to release records or information about law enforcement use of newborn blood spots.
“They were caught with their hand in the cookie jar, and now they’re saying we were doing nothing wrong,” Morris said.
The changes still fall short, particularly because the state insists on keeping its automatic retention of blood spots unless parents opt out, he added.
“To require actual, voluntary and informed consent under the Fourth Amendment, you need affirmative consent, not acquiescence or silence,” Morris said. “From our perspective, parents need to opt in, full stop.”
Platkin’s changes, even though they add restrictions, still allow police and third parties to obtain blood samples, he noted. Only a court ruling or statute — rather than a policy change subject to the whims of whoever’s in charge — can effectuate the kind of constitutional and privacy protections the newborn screening program should have, he added.
“They’re just saying, ‘OK, we know we did this bad thing in the past and gave it to the police without a warrant, but trust us, we’re not going to do bad things again.’ To us, that should set off alarm bells when the government, who’s been violating the Constitution, says, ‘leave us alone, we promise we won’t keep doing it,’” he said.
Morris has until Oct. 9 to submit a response. The case had been heading to settlement, but talks broke down over the summer, and Morris said he now hopes the case gets to discovery, where state officials will have to provide documents and testify under oath.
“The government needs to put on real evidence with real experts, with real explanations, if they think that they have good reasons to keep this for two years,” he said.
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