E.D.Mich.: Preliminary injunction denied against compulsory blood testing of newborns

Michigan blood tests newborns for certain diseases. Based on Kanuszewski v. Michigan Department of Health and Human Services, 333 F. Supp. 3d 716 (E.D. Mich. 2018), the court finds that the parents are unlikely to succeed on a preliminary injunction. LaPorte v. Gordon, 2020 U.S. Dist. LEXIS 50431 (E.D. Mich. Mar. 24, 2020):

MCL § 333.5431 currently provides in part,
(1) A health professional in charge of the care of a newborn infant or, if none, the health professional in charge at the birth of an infant shall administer or cause to be administered to the infant a test for each of the following:
(a) Phenylketonuria.
(b) Galactosemia.
(c) Hypothyroidism.
(d) Maple syrup urine disease.
(e) Biotinidase deficiency.
(f) Sickle cell anemia.
(g) Congenital adrenal hyperplasia.
(h) Medium-chain acyl-coenzyme A dehydrogenase deficiency.
(i) Other treatable but otherwise disabling conditions as designated by the department.

(2) The informed consent requirements of sections 17020 and 17520 do not apply to the tests required under subsection (1). The tests required under subsection (1) shall be administered and reported within a time and under conditions prescribed by the department. The department may require that the tests be performed by the department.

. . .

Again, the issue remains the same as in Kanuszewski, with the Circuit’s direction that the issue is to be reviewed applying a strict scrutiny standard. Similar to the Fourth Amendment issue, neither party discussed this Court’s decision in Kanuszewski v. Michigan Department of Health and Human Services, 333 F. Supp. 3d 716 (E.D. Mich. 2018). Also like the Fourth Amendment claim, the Sixth Circuit affirmed this Court’s decision on the Fourth Amendment claim on procedural standing grounds and did not address the underlying merits of the claim. This Court discussed that “Supreme Court precedent recognizes ‘two competing values of equal worth: the right of parents to parent and the right of children to safety.'” Id. at 721 (quoting Spiering v. Heineman, 448 F. Supp. 2d 1129, 1140 (D. Neb. 2006). Based on the reasoning in Spiering, this Court applied rational basis review to the fundamental right because “courts have often assumed that various reasonable restrictions on such rights would be permissible, and that such restrictions need not be judged under the strict [scrutiny] test.” Id. (quoting 448 F. Supp. 2d at 1139). The Sixth Circuit concluded that the correct standard of review for parents’ right to the care and custody of their children is strict scrutiny, not rational basis. Kanuszewski v. Michigan Dep’t of Health & Human Servs., 927 F.3d 396, 420 (6th Cir. 2019). However, that does not in this Court’s view increase Plaintiffs’ likelihood to prevail on the merits.

The state tests the blood of newborns to determine if the newborn faces a life-threatening disease. There is Supreme Court precedent that mandatory vaccination laws (if the law contains a medical exemption) are constitutional. Jacobson v. Massachusetts, 197 U.S. 11, 38, 25 S. Ct. 358, 49 L. Ed. 643 (1905). Similarly, the Sixth Circuit concluded that it is not a violation of the First Amendment for parents to be required to listen to an explanation about the risks of not vaccinating a child before being able to obtain a religious exception waiver, Nikolao v. Lyon, 875 F.3d 310 (6th Cir. 2017). The Supreme Court has explained that “parents generally ‘have the rights, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’ Surely, this includes a ‘high duty’ to recognize symptoms of illness and to seek and follow medical advice.” Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979) (citation omitted). However, the Court has also cautioned that while “Parents may be free to become martyrs themselves [ ] it does not follow they are free, in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Prince v. Massachusetts, 321 U.S. 158, 170, 64 S. Ct. 438, 88 L. Ed. 645 (1944). Plaintiffs have not demonstrated they are likely to prevail on the merits of the case. The first prong favors Defendants.