The plaintiffs sued New Jersey last November over the state’s secret practice of retaining newborn heel-prick samples for 23 years for undisclosed uses. (Getty Images)
Attorneys for parents challenging New Jersey’s controversial practice of storing blood that hospitals take from babies under a mandatory disease-screening program have asked a judge to reject the state’s bid to dismiss their federal lawsuit.
In a 49-page brief submitted Wednesday, attorney Brian Morris said restrictions the state made last summer to address parents’ concerns miss the point.
“The main point, as we’ve told the state over and over again, is: This case goes away if they just ask parents. This case is about consent,” Morris told the New Jersey Monitor.
Morris, an attorney with the Institute for Justice, sued New Jersey last November on behalf of three parents who were alarmed over the state’s secret practice of retaining newborn heel-prick samples for 23 years for undisclosed uses. The practice came to light in 2022 only after the state Office of the Public Defender learned police used these samples, which are known as blood spots, in several investigations without obtaining warrants.
With 100,000 babies born a year in New Jersey, the state had millions of baby blood spots in storage.
Morris has argued that the plaintiffs’ objection is not to the state requiring that hospitals take blood samples from babies to screen for disease — it’s to the state holding onto the blood samples, potentially for other uses, without parents’ permission.
Last month, the state asked the judge to dismiss the case, saying new changes render parents’ concerns moot. The state recently shortened retention time to two to 10 years, added hurdles for law enforcement’s use of blood spots, and allowed parents to opt out of retention.
But Morris said that argument fails under a legal doctrine known as the voluntary cessation doctrine, which says that a case isn’t moot merely because the defendant voluntarily stops their challenged conduct. They could resume the conduct again after the lawsuit, he said.
“Nothing prevents Defendants, or the Attorney General, from rescinding, amending, or modifying their policy changes tomorrow, in a year, or in five years,” Morris wrote. “And nothing prevents the next administration, the next DOH commissioner, or the next Attorney General from rescinding, amending, or modifying any of these voluntary changes at any time and for any reason (or for no reason at all).”
Besides, he added, New Jersey’s practice of retaining baby blood spots, no matter how they’re used or how long they’re stored, remains an unconstitutional seizure because officials still don’t first obtain parents’ informed consent. State officials disclosed in court filings that they’re used for follow-up testing on children, quality control, and new test development but otherwise have resisted revealing further details.
“You’re not asking parents for consent, and then you’re not telling anybody what you’re doing with it. So it’s like a double layer of deceit or lack of transparency,” he said. “But what they’ve been doing with the blood doesn’t change our claims. If they’re just keeping it in a warehouse and doing nothing with it, they’re still not asking parents for consent.”
An opt-out policy isn’t enough, he added.
“You don’t get to have an unconstitutional policy and then have this opt-out,” Morris said.
In other states, judges have rejected the idea that the ability to opt out of a blood spot retention policy amounts to “free and voluntary” consent, Morris noted in his brief. A federal judge mulling a similar challenge to Michigan’s baby blood spot retention said parents’ failure to opt out of blood spot retention could occur for many reasons.
“The silence of Plaintiffs might well have been the product of the opacity of the system, the infants’ nascent existence in the world, or the result of the overwhelmed state of their new parents,” that ruling stated.
Morris also took aim at other arguments the New Jersey Attorney General’s Office made in their motion to dismiss the lawsuit, including that retention is permitted under the special-needs exception to the Fourth Amendment. That exception allows a search or seizure that “serves special government needs,” if the government’s interests outweigh an individual’s privacy expectations.
But the burden is on the government to prove it has a special need, Morris said. To do that, the case must proceed with discovery, when the state would have to show evidence why it must retain 100,000 baby blood spots a year for two to 10 years, he added.
Morris also challenged the state’s claim that blood spots aren’t personal property because they’re medical waste.
That argument ignores two state laws — one that declares genetic information, including DNA, “personal information that should not be collected, retained or disclosed without the individual’s authorization” and another that requires medical waste to be disposed of within one year, Morris said.
But it also underscores how the state is “talking out of both sides of their mouth,” Morris said.
“Their argument is, ‘Oh, this is medical waste, you don’t have any possessory interest in your own blood,’ or ‘These things really aren’t valuable.’ But on the other hand, they’re saying, ‘Hey, these things are really valuable, and we need to keep them so we can run our tests and do research,’” Morris said. “They downplay the rights that parents have, contrasted with their own interests.”
The state has several weeks to respond to Morris’ brief. A spokesman for the Attorney General’s Office declined to comment Wednesday.
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