Bernard W. Bell (Rutgers Law School – Newark) has posted Newborn Screening Programs & The Fourth Amendment on SSRN. Here is the abstract:
State newborn screening programs draw blood from newborns to detect dangerous heritable diseases. After conducting the screening, these programs typically retain residual dried blood spots for years and provide them to third parties in conjunction with medical and public health research or law enforcement activities. Frequently this occurs without parental consent or knowledge. Such practices have given rise to increasingly significant controversy over the past 30 years.
Despite the practices’ obvious privacy and parental autonomy implications, two courts recently rejected Fourth Amendment challenges directed at state programs’ stewardship of residual dried blood spots. Grounded on the U.S. Supreme Court’s standard formulation of Fourth Amendment unconstitutional seizure claim’s essential elements, both courts concluded that the parents, on behalf of themselves and their children, lacked the necessary “possessory interest” in residual dried blood spots to invoke the Constitution’s constraints upon unreasonable seizures.
This article argues that no “possessory” or “property” interest should be needed to invoke the Fourth Amendment’s constraints upon seizures, a reasonable expectation of privacy should be sufficient. The article explores the implications of such a change in perspective on the constitutional debates surrounding newborn screening program practices, including those surround consent, the scope of the administrative search/special needs doctrine, and state parens patriae authority.
The article then focuses more broadly upon potential extra-judicial privacy protections. Drawing on the scholarly literature regarding underenforced constitutional norms, the article notes that state legislatures and program policy makers can adopt greater privacy protections than those established as a baseline in constitutional litigation, and considers the potential efficacy of the “political protections” of privacy in this area. I turns out that stakeholders have incentives to advocate for robust privacy protections. The article considers the development of at least five sets of recommendations designed to establish robust privacy protections. In the end, however, constitutional litigation will remain critical to overcoming policymaker inertia, making the courts’ recent refusal to engage in constitutional review of newborn screening program consent and privacy practices problematic.
Recommended.