Arguments on infant screening go to top court
Posted: Sunday, August 31, 2008
OMAHA, Neb. (AP) -- A Nebraska couple's objection to having their child's blood drawn to screen for rare but deadly diseases has again made its way to the state's highest court.
But this time, the baby's already been tested, and the Douglas County Attorney's Office says that because its case against Mary and Josue Anaya has been dismissed, the issue is moot.
The Anayas say they want to make sure that if they have other children, the county won't seize them to perform the test. That's what happened last year, when their son Joel was placed in state custody for several days.
The parents believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person's life.
"Based on their understanding of Scripture, they believe blood is important and precious and is not to be tampered with lightly," according to the Anayas' lawsuit.
But health officials say the newborn screening program is one of the state's most cost-effective public health programs. The newborn blood test -- usually performed within 48 hours of birth -- screens for dozens of rare diseases, some of which can cause severe mental retardation or death if left undetected.
Nebraska is one of four states -- South Dakota, Michigan and Montana are the others -- that doesn't offer a religious exemption for parents who don't want the test performed.
The Anayas are appealing the juvenile court ruling even though Douglas County dropped the case. The Nebraska Supreme Court will hear arguments Friday.
The couple also has filed separate civil action in U.S. District Court against Health and Human Services and Douglas County.
Mary Anaya gave birth at home Sept. 2, 2007. The Anayas received a letter and phone call weeks later asking if they would have Joel tested. The letter said if they did not, the county attorney would be notified.
No one ever told them that if the screening wasn't performed the baby could be placed in foster care, the Anayas said.
When the Anayas' daughter Rosa was born in 2003, a hearing was held in Douglas County District Court and the couple voiced their objections. The state Supreme Court eventually turned down their arguments, but Rosa never was tested.
This time, the county wanted to make sure the testing was completed and got an order from a juvenile court judge to take the baby.
Sheriff's deputies came to the Anayas' home Oct. 11 to take Joel, who was almost 6 weeks old, and placed him in the custody of the state Department of Health and Human Services.
A Douglas County juvenile court judge ordered the next day that the baby remain in foster care until the preliminary results came back and confirmed further testing wasn't needed. He was returned to them Oct. 16 when the tests came back negative.
The county attorney dropped the case, and no criminal charges were filed.
The Anayas say the state and the Douglas County Juvenile Court "overreached, using the heavy bludgeon of the juvenile code and temporary custody to secure a pinprick."
They argue that the lack of an exemption to the newborn screening requirement violates the Religious Freedom Clause of the state Constitution, which says people can worship God according to their own conscience, and that interference with isn't permitted.
But Douglas County said the health of the child was at risk, and it's their responsibility to follow the law.
If the law is wrong, it should be changed through the referendum process or the Legislature, the Douglas County attorney said.
"Whenever the actions of individuals, even though in pursuance of religious beliefs ... are considered as not in harmony with the public welfare, then it is proper that those acts be curbed," the Douglas County attorney said.
A legislative measure to add a religious exemption in Nebraska was withdrawn before being voted on earlier this year.
But this time, the baby's already been tested, and the Douglas County Attorney's Office says that because its case against Mary and Josue Anaya has been dismissed, the issue is moot.
The Anayas say they want to make sure that if they have other children, the county won't seize them to perform the test. That's what happened last year, when their son Joel was placed in state custody for several days.
The parents believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person's life.
"Based on their understanding of Scripture, they believe blood is important and precious and is not to be tampered with lightly," according to the Anayas' lawsuit.
But health officials say the newborn screening program is one of the state's most cost-effective public health programs. The newborn blood test -- usually performed within 48 hours of birth -- screens for dozens of rare diseases, some of which can cause severe mental retardation or death if left undetected.
Nebraska is one of four states -- South Dakota, Michigan and Montana are the others -- that doesn't offer a religious exemption for parents who don't want the test performed.
The Anayas are appealing the juvenile court ruling even though Douglas County dropped the case. The Nebraska Supreme Court will hear arguments Friday.
The couple also has filed separate civil action in U.S. District Court against Health and Human Services and Douglas County.
Mary Anaya gave birth at home Sept. 2, 2007. The Anayas received a letter and phone call weeks later asking if they would have Joel tested. The letter said if they did not, the county attorney would be notified.
No one ever told them that if the screening wasn't performed the baby could be placed in foster care, the Anayas said.
When the Anayas' daughter Rosa was born in 2003, a hearing was held in Douglas County District Court and the couple voiced their objections. The state Supreme Court eventually turned down their arguments, but Rosa never was tested.
This time, the county wanted to make sure the testing was completed and got an order from a juvenile court judge to take the baby.
Sheriff's deputies came to the Anayas' home Oct. 11 to take Joel, who was almost 6 weeks old, and placed him in the custody of the state Department of Health and Human Services.
A Douglas County juvenile court judge ordered the next day that the baby remain in foster care until the preliminary results came back and confirmed further testing wasn't needed. He was returned to them Oct. 16 when the tests came back negative.
The county attorney dropped the case, and no criminal charges were filed.
The Anayas say the state and the Douglas County Juvenile Court "overreached, using the heavy bludgeon of the juvenile code and temporary custody to secure a pinprick."
They argue that the lack of an exemption to the newborn screening requirement violates the Religious Freedom Clause of the state Constitution, which says people can worship God according to their own conscience, and that interference with isn't permitted.
But Douglas County said the health of the child was at risk, and it's their responsibility to follow the law.
If the law is wrong, it should be changed through the referendum process or the Legislature, the Douglas County attorney said.
"Whenever the actions of individuals, even though in pursuance of religious beliefs ... are considered as not in harmony with the public welfare, then it is proper that those acts be curbed," the Douglas County attorney said.
A legislative measure to add a religious exemption in Nebraska was withdrawn before being voted on earlier this year.
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