III. LEGAL CHALLENGES TO NBS PROGRAMS
The constitutionality of mandating NBS against parents’ objections has
been challenged and upheld by the courts.
52 In 2005, Nebraska’s Supreme
Court upheld the state’s newborn testing program when challenged by par-
ents who claimed that mandatory testing violated their constitutional rights
based on their religious objections.
53 In the county’s action to compel the
parents’ compliance, the court, held that the State’s interest in infant screen-
ing as a means to protect the health and welfare of all children satisfied the
compelling interest standard and was thus constitutional.
A lawsuit filed in 2009 by twenty-one families against the Minnesota
Department of Health alleged that the collection, use, storage, and dissemination of residual blood spots and test results violated the Minnesota State
Genetic Information Act of 2006 due to a lack of parental consent.
Minnesota Supreme Court held that use of residual blood spots and test results beyond the initial screening was not authorized by statute.
56 In 2012,
the Minnesota legislature passed a bill requiring all negative test results be
maintained for seventy-one days and then destroyed, unless parental consent to retain the blood spot for a longer period was received.
57 In January
2014, Minnesota settled the lawsuit over its storage and use of newborn
screening residual dried blood spots.
58 As a result of the settlement, the state
began the process of destroying 1. 1 million archived blood spots and test
results that had been collected prior to the November 2011 ruling by the
Minnesota Supreme Court.
59 However, in May 2014, the Minnesota legislature passed a bill, repealing the 2012 law, allowing the Department of
Health to keep samples and negative test results indefinitely for certain
newborn screening activities, unless parents provide informed consent revoking authority.
A lawsuit filed in Texas challenged the collection of blood spots.
52. See, e.g., Douglas Cnty. v. Anaya, 694 N.W.2d 601, 608 (Neb. 2005), cert. denied,
546 U.S. 826 (2005).
55. Bearder v. Minn., 806 N. W.2d 766, 769 (Minn. 2011).
56. Id. at 776. The court remanded the case to the district court for further fact finding
in order to determine the appropriate remedy. Id. at 777.
57. 2012 Minn. Sess. Law Serv. Ch. 292 (H.F. 2967) (West, WestlawNext).
58. Press Release, Minn. Dep’t of Health, Lawsuit settlement allows newborn screening
program to move forward (Jan. 13, 2014), http://www.health.state.mn.us/news
60. 2014 Minn. Sess. Law Serv. Ch. 203 (S.F. 2047) (West, WestlawNext). The new
law becomes effective August 1, 2014. Id.
61. First Amended Complaint, Beleno v. Tex. Dep’t. of State Health Servs., No. SA-09-
CA-188-FB (W. D. Tex. Sept. 29, 2009), ECF No. 45; Press Release, Parents Sue Texas