Does the Fourth Amendment Protect Your DNA?

IJ’s Project on the Fourth Amendment strives to safeguard one of America’s core founding principles: the right to be secure in our persons and property. That means two basic things. First, if the government wants to search or seize your property, it generally has to get a warrant or your consent. And second, once the government is done with your seized property, it must give it back. 

Hannah Lovaglio and Erica Jedynak, two New Jersey moms with young boys, just discovered that New Jersey is violating these safeguards. So they partnered with IJ to file a federal class action lawsuit to protect all New Jersey families.

Shortly after a baby is born, the hospital performs a routine heel prick. The blood is then sent to the state Department of Health to test for rare diseases. Every state does this testing, and each follows its own processes. New Jersey doesn’t ask parents for consent; instead, parents receive a handout explaining that state law mandates the testing.

But Hannah and Erica were appalled to learn what their state doesn’t tell parents.

Watch the case video!

Rather than destroy or return a baby’s blood after testing is completed (as most states do), New Jersey secretly keeps it for 23 years. If this seems like an arbitrary timeframe, that’s because it is—it’s the result of a quirk in bureaucratic categorizations for record-keeping. What’s worse, New Jersey believes that it can use that blood however it wants—such as selling it to third parties, giving it to prosecutors or police, or even turning it over to the Pentagon to create a national database. All of this is done without parental consent or a warrant.

As our client Hannah so eloquently put it: “It’s not right that the state can enter an incredibly intimate moment, the tender days of childbirth, and take something from our children. … As a mother, I deserve the right to decide whether or not the government takes blood from my son and holds onto it for decades.”  

Hannah is right. If the state wants to keep children’s blood and use it for purposes other than screening for diseases, it must first obtain informed consent from parents. That’s what IJ’s lawsuit is striving to establish: Once the newborn testing is finished, New Jersey must either obtain informed consent from parents to keep their children’s blood—or return or destroy it. 

A win in this case won’t just protect parents in New Jersey. It will also strengthen a core principle under the Fourth Amendment that IJ can apply elsewhere. If the government’s reason for taking your property is over, then it must return it; it doesn’t get to keep your property forever. That applies equally to your cash, vehicle, cellphone, business inventory, and yes, even your DNA and genetic information. The U.S. Supreme Court has endorsed this rule, but lower courts are divided about whether it applies to all personal property. We say that it does, and victory here can persuade more courts to agree.

Brian Morris is an IJ attorney.