Like all new mothers, New Jersey residents Hannah Lovaglio and Erica Jedynak each experienced the usual emotional whirlwind during their pregnancies. They had attended prenatal classes, meticulously planned their nurseries, and devoured books on parenting. They were determined to give their newborns the best possible start in life. Little did they know that a disquieting surprise awaited them after their babies were born.
Shortly after giving birth, medical staff performed a routine heel prick. Their children’s blood was collected on a card and whisked away to the New Jersey Department of Health’s Newborn Screening Laboratory to be tested for a range of disorders. New Jersey didn’t seek Hannah’s or Erica’s consent first; instead, each got a handout stating that New Jersey law mandated it. But that didn’t raise any red flags for the two: Every state conducts such testing, and they trusted the system.
But Hannah’s and Erica’s real shock came upon learning what New Jersey didn’t disclose.
Unbeknownst to parents, a portion of their baby’s blood remained unused after the screening was complete. And New Jersey had unilaterally decided that it could keep that blood for 23 years. Even worse, New Jersey believed it could use that blood however it saw fit, whether that be selling it to third parties, giving it to law enforcement, or even turning it over to the Pentagon.
Hannah and Erica were appalled. Their top priority was protecting their children’s health and safety. Realizing that they had no idea where their children’s blood might be or what it was being used for only deepened their distress.
Fueled by that concern and a shared sense of outrage, Hannah, Erica, and others have joined forces with the Institute for Justice to file a class action lawsuit, which invokes two fundamental claims under the U.S. Constitution. First, it raises a Fourth Amendment claim, arguing that the state’s retention of the children’s blood without consent was an unconstitutional seizure. And second, it raises a due process claim under the Fourteenth Amendment, asserting that the state’s creation of its blood database unconstitutionally infringed upon Hannah and Erica’s fundamental right to make medical decisions for their children.
What they ask for is simple: An order telling New Jersey to either obtain informed consent from parents to hold on to the remaining blood, or else return or destroy it. Their fight is part of the Institute’s Project on the Fourth Amendment, dedicated to safeguarding Americans’ foundational right to be secure from unreasonable searches and seizures. In the eyes of Hannah and Erica, this fight is not just for their children but for all children born in New Jersey, to ensure that their future is not subject to the unknown whims of the state.
The Newborn Screening Program.
Since the 1970s, New Jersey has required every baby born in the state to be tested for a wide range of disorders, including cystic fibrosis, hormonal deficiencies, and other immunity and congenital disorders. 1 Within 48 hours of birth, hospitals prick the heel of each newborn and collect the blood on a paper card, which is then sent to the New Jersey Department of Health for testing. 2 Here’s a picture of the heel prick and the paper card: 3
The heel prick and genetic testing are mandatory unless a parent has a religious objection. 4 Parents receive a handout about the process in the packet of paperwork that every new parent receives at the hospital: 5
After the testing is completed, parents are informed through their pediatricians, about the results and whether any follow-up testing is needed.
New Jersey Unlawfully Keeps the Remaining Blood and Gives it to Third Parties.
After New Jersey completes the newborn screening tests, there is some unused blood left on the paper card. New Jersey does not destroy the unused blood; instead, it holds on to it. In fact, as reported by several news outlets, New Jersey stores all unused blood in a temperature-controlled room for 23 years after testing. 6
No New Jersey statute requires unused blood to be destroyed, but no statute authorizes New Jersey to retain the blood either. Instead, the New Jersey Department of Health has unilaterally determined that it can keep and store the unused blood from every baby born in New Jersey.
New Jersey never tells parents that it will keep their baby’s blood after the newborn screening testing is completed, nor does New Jersey obtain a warrant to keep the blood. The only way parents could be informed about New Jersey’s prolonged retention of the blood is by proactively going to one of the third-party websites listed at the bottom of the card they are given. The card itself makes no mention of how long New Jersey holds the blood, nor what purposes it can be used for.
New Jersey does not just keep the unused blood for itself. Rather, it has been caught giving baby blood to third parties. Following a lawsuit filed by New Jersey public defenders, it was revealed that on several occasions, New Jersey turned over unused blood from its baby blood stockpile to law enforcement officers, all without consent or a warrant.
And lawsuits against similar programs in other states have revealed disturbing behavior, with states giving or selling blood from their baby blood stockpiles to other third parties, such as researchers and companies. At least one state, Texas, was caught turning over babies’ blood to the Pentagon. But, regardless, New Jersey does not tell parents when—or to whom—it gives away or sells their children’s blood.
Plaintiffs were Appalled to Learn that New Jersey is Secretly Keeping Their Children’s Blood—So They Filed a Class Action Lawsuit.
Plaintiff Hannah Lovaglio has been married for eight years and has two boys (ages 5 and 1.5), both of whom were born in New Jersey. She loves raising her family in New Jersey. Plaintiffs Erica and Jeremiah Jedynak are married and live in Boonton, New Jersey. They have one son, who was also born in New Jersey, and turns 2 in December 2023.
New Jersey took blood from all three boys through the Newborn Screening Program. The results were all normal. And when Plaintiffs found out that the state is still keeping the blood, they were appalled. New Jersey never asked Plaintiffs if they could keep the blood.
Plaintiffs agree that their top priority is protecting their children. That includes protecting and keeping track of their children, their health and medical needs, and everything else about them—including their blood, which has their DNA and genetic information. But now, Plaintiffs worry about how New Jersey may abuse its possession of their children’s blood. As Hannah sees it, when your baby is born and you’re in the hospital, the only concern is for the baby’s health and the mother’s health—that’s it. But New Jersey’s unlawful retention of her children’s blood, which can be used in limitless ways in the future, ruins that moment. And as Erica describes it, New Jersey is compiling “a creepy database” that is not only unlawful, but immoral.
The Constitution Protects Against Unlawful Seizures and Parents’ Fundamental Right to Make Medical Decisions for Their Children.
The Fourth Amendment is a founding principle of America. It protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The right of the people to be secure in their persons includes property and privacy interests in the possession of their blood and genetic information.
When New Jersey first draws the blood for the Newborn Screening Program, that is a “seizure” under the Fourth Amendment. New Jersey’s purpose for the initial drawing and collection of baby blood—and thus, the initial seizure—is to test for 62 diseases.
But once that testing is completed, New Jersey’s justification for seizing the blood has ended. Under the Constitution, that means that New Jersey must either (a) end the seizure and return the property, or (b) secure a new justification to continue the seizure. New Jersey, however, does neither, instead deciding to keep the blood for its own secret purposes. That violates the Fourth Amendment.
New Jersey’s baby blood stockpile also violates parents’ rights under the Fourteenth Amendment, which guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” And as the U.S. Supreme Court has recognized, parents have the fundamental right to raise their children without undue state interference, which includes the right to direct the care, custody, and control of their children. That fundamental right includes the right of parents to direct their children’s medical care. Stockpiling children’s blood without first getting those parents’ informed consent violates that fundamental right.
The Legal Claims and Relief.
This case raises two claims under the U.S. Constitution. First, the retention of the blood from the Newborn Screening Program after testing is completed violates the children’s Fourth Amendment rights. Second, the retention of the blood from the Newborn Screening Program after testing is completed violates the parents’ due process rights under the Fourteenth Amendment.
For both claims, the lawsuit asks for the same relief. The court should require New Jersey to either:
- Obtain informed consent from the parent or legal guardian, meaning that parents are informed of the specific uses that the blood can be used for before New Jersey retains any blood spot after the newborn screening tests are completed;
- Return all blood spots for which New Jersey does not first obtain informed consent to retain the blood for specified uses once the newborn screening tests are completed; or
- Destroy all blood spots for which New Jersey does not obtain informed consent to retain the blood for specified uses once the newborn screening tests are completed.
The Institute for Justice is seeking this relief for the blood that New Jersey currently has and for all blood collected through the Newborn Screening Program moving forward.
The Litigation Team.
Institute for Justice Attorneys Brian Morris and Christie Hebert and Senior Attorney Robert Frommer represent Plaintiffs.
The Institute for Justice.
Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. Our efforts include direct lawsuits against government officials, appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of holding government officials accountable. We do all this because of our fundamental belief that following the Constitution means being held accountable for violating it.
Through its Project on the Fourth Amendment, IJ defends the rights of Americans to be secure in their persons and properties against unreasonable searches and seizures. Following IJ’s lawsuit, an Iowa court recently declared an Orange City, Iowa, law that required warrantless inspections of all rental properties unconstitutional. IJ is currently suing game wardens in Virginia after they snuck onto a family’s private property and stole cameras. IJ is also arguing before the Michigan Supreme Court that towns should not conduct warrantless drone surveillance to look for code violations.