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Lawsuit says seizure of baby for test violated rights

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By ANNA JO BRATTON / The Associated Press

Thursday, Oct 25, 2007 - 09:27:34 pm CDT

OMAHA — A Nebraska couple sued state health officials Thursday because they believe their rights were violated when their newborn baby was seized so a mandatory blood test could be performed.

“This is a classic case of the government overreaching and violating a family’s constitutional rights,” said Jeff Downing, the couple’s attorney.

Mary and Josue Anaya believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person’s life. State health officials “conspired to deny the Anayas their rights of due process, and to seize and test baby Joel without notice or a hearing in district court,” according to the filed in U.S. District Court in Omaha.

Story Photo
Mary Anaya holds her 6-week-old son Joel in Omaha Wednesday. The baby is home after sheriff's deputies seized him from his parents so doctors could perform a mandatory blood test that the boy's parents object to on religious grounds. (AP)

“They seized him and asked questions later,” Downing said.

The Anaya family is not seeking damages, but they want to ensure that this won’t happen again if they have more children. That’s why Downing also appealed the state court orders allowing the seizure and testing.

It’s the first time in Nebraska a child was taken from parents to draw the drops of blood from the baby’s heel for the screening, said Marla Augustine, spokeswoman for the state Department of Health and Human Services. 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.

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.

Last year, out of 26,819 babies tested, 537 tested positive for one of the dozens of diseases, and 43 of those results were confirmed, according to the state’s Newborn Screening Program.

Augustine said Thursday that state officials had not seen the lawsuit and would have no comment. The lawsuit names the state health department director and two people who oversee the newborn screening program.

The decision to seize Joel Anaya and test him was made by Douglas County prosecutors who have said they only did what was necessary to protect the baby’s health. The federal lawsuit does not name as defendants the prosecutors who asked for the tests or the sheriff’s deputies who seized Joel.

Mary Anaya gave birth at home Sept. 2. The Anayas received a letter weeks later asking if they would have Joel tested, and 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, Downing 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, said Nicole Brundo Goaley, a deputy Douglas County Attorney. So the county got an order from a juvenile court judge to test the baby.

Sheriff’s deputies came Oct. 11 to take the baby, who was almost 6 weeks old, and 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.

In the meantime, social workers let Mary Anaya nurse her son several times a day, and he was returned to her Oct. 16 when the tests came back negative.

The county attorney dropped the case, and no criminal charges were filed.


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Tests saved our girl wrote on October 25, 2007 11:06 pm:
" I commend the state for performing such tests as a requirement...they save childrens lives..both physically and mentally...our baby was disagnosed with hypothyroidism from these test..and to save her fromo mental retardationo she only needs a pill a day...without the medicine she would be what use to be referred to as creatism. she now can have a normal active life. The march of dimes highly recommends these tests and they truly do save children's lives. "

 Matt Poulsen wrote on October 25, 2007 11:49 pm:
" Well, the parents are wrong...period. Drawing blood DOES NOT shorten a person's life. Yes, we are entitled to believe anything we want, but it does not mean its true. Why would God give mankind a highly evolved brain if he didn't want you to use it?? Whether the parents believe this nonsense is one thing, but when their beliefs can seriously effect the health of a baby is an entirely different question. If I believed that starving my child would lead to eternal salvation should I be allowed to do that?? "

 Douglas wrote on October 26, 2007 6:21 am:
" This is the most assanine procedure in teh entire world. Why wasn't the county judge named in the story? HE or she is an absolute fool for placing this child in custody. And who sent the police to "pick up" the child? Why in the heck didin't they take along a nurse and complete the test in the child's home? This is harassment plain and simple. These people challenged the system in court and are being singled out for special punishment. Was this really in America? "

 Literally wrote on October 26, 2007 6:57 am:
" I am not sure where the belief that drawing blood for testing will shorten a person's life comes from, as I don't recall ever reading THAT in the bible. The bible says a lot of things, which are not meant to be taken literally. My wisdom teeth were pulled years ago.. "an eye for an eye, a tooth for a tooth".. so I should go pull my dentists teeth?? The bible told me to do it.. "

 WCG wrote on October 26, 2007 7:01 am:
" Just because his parents are religious loonies, this infant shouldn't have to risk death or disability. There are some things, after all, that you can't do to your kids. And the state has a responsibility to EVERYONE. I don't understand why we seem to have such a growing number of religious nuts in this country, but that's their own business. You can believe any loony thing you want to believe - and you can teach your idiocy to your kids, too - but there are limits. The health and safety of a child must come first. "

 Buddha wrote on October 26, 2007 7:33 am:
" I'm surprised the family hasn't named the prosecutors or the deputies in the lawsuit. I would add them. If it were me, I would add the judge as well. The judge who decided this child needed to be taken away and placed in foster care should be prosecuted for child abuse. This child was nursing! This isn't Nazi Germany! Religious beliefs should be respected, and I believe it's time the Legislature steps up to the plate and allow the exemption. "

 No wrote on October 26, 2007 7:41 am:
" The lawsuit is for the unlawful seizure of the infant and keeping him in a foster home for 5 days without prior notification that this would be done. None of you supporting this testing would support the way this "raid" was carried out. "

 USA? wrote on October 26, 2007 9:34 am:
" Only 43 out of every 26,819 babies testing possitive for one of these diseases with only SOME of the diseases causing MR or death?! That is 16 out of 10,000 babies. With these odds, the state better make sure they send crossing guards to every corner so we can make sure every child can cross the streets safely. We better make sure its a law to have 24 hour security camera monitoring in every home to make sure nobody is harming any children in their homes. We will make sure to staff thousands of people to look over each home. I can't believe this happened in a "free" country. These people should have their religious rights protected, that is what the US was/is all about. What about the psychological harm done to this newly born baby not knowing where his mother is or if she is coming back? I can not express how disappointed in the government I am on this one! They need to step back and find their place! How we view this couples religion or beliefs is irrelevent here. We are in America for Gods sakes! "

 tim wrote on October 26, 2007 10:31 am:
" religious loonies, parents wrong blah blah blah. this country was founded on the right of freedom of religion. big brother has no right to take a child that appears to be healthy and save from its parents. whats next, the government will decide children eating a hamburger are in danger of heart disease and obduct them. big brother needs to stay out of our homes and our personal lives and religious choices. "

 Mom wrote on October 26, 2007 11:50 am:
" These tests save lives. They are also mandated and legally required by the state of NE. These parents were given opportunties to take their child in and have the testing completed, and they failed to do so. I understand that this family has the belief that any blood draws shorten life. I'm not sure where they would have gathered such a belief, as red blood cells are replaced in the body on a continuous basis. This infant will suffer no harm and the parents should be thankful that is well and free from illness associated with these blood tests. "

 common sense wrote on October 26, 2007 12:21 pm:
" It is hard to understand why it is easy for some parents to believe in certain religious teachings, but difficult for these same parents to want the best chances in life for their child. The citizens of NE are lucky to have the newborn screening program that we have. It is run by intelligent, caring, hard working people that truly want the best for this states newborns and all the state's population and taxpayers. No, I do not work side by side with this program. I just have heard from many affected by it and it has always been positive. "

 Beedle wrote on October 26, 2007 12:35 pm:
" My law knowledge is a bit rusty, but doesn't the government have a compelling interest to protect a child's well-being over the parents' religious beliefs? There have to be less traumatic ways of dealing with the situation, though. "

 Former Nebraskan wrote on October 26, 2007 3:09 pm:
" I'm confused. If the parents are suing because their child was "seized" to do the mandatory testing, shouldn't they be suing the people who ordered and carried out the seizing? They are suing the wrong people. They are suing the coordinators of the newborn screening program (as stated in another paper). They don't order the removal of children. Also, these tests are mandatory for a reason. If you don't want to subject your child to this test and you believe that strongly about it, have your child in another state which does not make the testing mandatory. Personally,I think it should be mandatory in all states. It is not mandatory where I live but I had it done with my two children becuase I want the best for them. Why wouldn't a parent want to do everything for their child and want to make sure their child is safe and healthy? This is a quick and simple test and no harm is done to the child but the results could be life changing. Good job newborn screening and thanks for looking out for our children! "

 Well Tim wrote on October 26, 2007 5:51 pm:
" You're wrong. This is not about freedom of religion at all. This child needs to be tested to make sure he doesn't have diseases that may endanger his life. More importantly, the tests protect the rest of us from having a "Typhoid Mary" running around the streets "

 Law wrote on October 26, 2007 9:30 pm:
" "Why wasn't the county judge named in the story [case, I'm assuming you mean]?" The Anayas are only seeking injunctive relief. They want the federal court to tell HHS that it cannot do what they did to the Anayas in the future (prospective relief). Suing the judge, in that respect, does nothing. If the Anayas WERE seeking damages, judges have absolute immunity from suit with respect to acts that are within their judicial capacity. See Stump v. Sparkman, 435 U.S. 349 (1978). "

 CS wrote on October 26, 2007 9:36 pm:
" No, they don't, Well Tim. None of the diseases are communicable. If they were, I could see some compelling interest in the states position. Since they aren't I see only an overbearing state and health officials. Nazis once thought it was cool to mandate medical procedures too. Imagine if this was one of you and your HMO was mandating that you receive a test or give blood for a statistical anomaly. How you all would howl about the infringement of your rights-I hope. If not, there is no hope for you and your rights are already lost. "

 What about my rights? wrote on October 26, 2007 11:56 pm:
" I respect differences in religions and beliefs, however, I do not respect the fact that children who are not tested and/or inoculated for certain diseases put me and my family at risk both physically and financially. Who pays when these children have a serious disease that needs expensive treatment? Who pays when these children infect other innocent children? Who pays when my family members contract a serious disease from a child like little Anaya,a disease that could have easily been prevented and/or treated. I pay, just like I wind up paying for other poor decisions made by people in this free country. "

 whatever wrote on October 27, 2007 3:51 am:
" Frankly, a person carrying an STD exercising his/her sexual freedom is a far greater threat to the health of this society than this child is. In fact, the State acting in this manner is a far greater threat to the health of this country than is the child and the parents. These parents have every right to refuse this test, but I see the supporters of "selective state sponsered terror" are out in force today. Tell me, how many of you are willing to relinquish your rights and have the state investigate you in the name of health and safety? Not many I suspect. Let's all be a little more intellectually honest and think this issue through before putting the jackboots on and saluting the state. At some point if you want a relatively free society the brave and the courageous have to draw a line and say enough is enough. "

 NursingMom wrote on October 27, 2007 6:07 pm:
" I can't believe how many people are quick to judge the parents without knowing the facts. The diseases are super rare and all non contagious and non preventable. They do not pose any public health danger. It is simply a matter of how early treatment starts. Nobody used to get treated until they had symptoms. Look at the false positive rate reported here. That means they probably start treating healthy children by mistake. What happened to liberty? "

 Millard wrote on October 30, 2007 1:15 pm:
" It has nothing to do with Typhoid Marys. These diseases are not contageous. What's the bigger danger to a child, here? The point is, the STATE cannot tell you how you can raise them. If it's so important, parents will do it on their own. They took the child away. The government cannot and should not decide when to veto your religious beliefs. You can say, "What if their religious beliefs this...?" and "What if they that...?" But the fact is, they do not. If the child wants to grow up and change his mind, fine. Get tested. All they do even if they find you positive is give you information. Whoopie! They could give them the information and then they could say, "No, we don't want to have treatment," if it violated these same beliefs. People are way, way, way too anxious to have use the government as a blunt tool to remake individuals. Your child is your child, not the State's. If they'd tested positive, as I said, they could just as easily have decided to say NO to treatment. We can disagree with it, but how long before they find something other parents don't like? I happen to find it disgusting that some deaf people specifically chose to raise deaf children. Some people oppose lesbians having children. If the state can declare these people loonies, just wait until someone doesn't like what you're doing. This is a clear case of government over-reach. Take a child away from the parents so you can test, and if the test comes up X, give them a PAMPHLET? Please. Open your eyes. "

 Sanefatherofsix wrote on October 31, 2007 12:00 am:
" This has to be one of the most frightening things I have ever read. Even though the article is slanted to paint the parents as religious freaks from the start. Think about it, state (storm) troopers coming into your private home and taking your baby from your 12 year olds' arms and telling you "don't worry he is in the hands of profesinals now." Is this what nationalized health care will be like? BE AFRAID, BE VERY AFRAID. "

 Rose wrote on October 31, 2007 1:21 am:
" Freedom??? This child was not in any danger! Are the courts also saying that every mother over the age of 40 must be tested to make sure the unborn child is healthy? Should Amniocentesis be forced on every woman? Amniocentesis can be used to diagnose a large number of genetic and chromosomal abnormalities in the fetus. In addition, it is helpful in the diagnosis of the severity of Rh incompatibility, lung maturity, and neural tube defects (such as spina bifida) where the vertebrae fail to close), The test can detect chromosomal disorders such as Down's syndrome, anencephaly (a condition in which the brain is incomplete or missing), and many rare, inherited metabolic disorders. Lets take it another step, should the women who take these test and test positive for Down’s should they be forced to abort the baby.. Are these the same people/group that says prayer and the pledge of allegiance can not be said in school? When will it be enough? This country was built on prayers, when did they turn so wrong? Children DIE in abusive homes every day waiting for county, state, government or RELIGIOUS groups to step up and rescues them,to make the abuse stop. Where are all of you then?! "

 Juvenile Courts are out of control wrote on October 31, 2007 2:08 am:
" I hope this couple runs them through a ringer. CPS and the Juvenile Courts in Douglas County have been out of control for years. It's high time someone teaches them that there's limits to their power. "

 David wrote on November 1, 2007 3:56 pm:
" Nebraska is taking great strides to becoming a real communist state, since when do we snatch babies from their mother’s homes? Have you ever read the Constitution of the United States? Nebraska has violated constitutional amendments 4, 5, and 14. Not only is it unconstitutional, but it is also morally wrong to take a nursing baby from his or her mother. The people who violated these constitutional rights should be in prison; meaning the state and the bureaucrats involved in this criminal act against the people. The statistics of the blood tests (less than 2% confirmed) validate it as a needless (not to mention illegal) test. The Anayas are justified to sue but I think you should seek millions of dollars, because money is the only thing that can hurt governmental agency. "

 sanefatherofsix wrote on November 2, 2007 7:49 am:
" I retract my eailier statement of this article being "the scariest thing I have ever read." Some of these reader comments chill my bones. "

 njstusfiter wrote on November 2, 2007 5:49 pm:
" For all of you who think that CPS will not invade your family, you have been lucky so far! That is unless you have lots of money to hire a good attorney (most attorneys won't even look at your case for under $10,000 which is why CPS attacks low income families more often) AND can afford to pay as much as $50,000 if necessary. Families who are low income, most often are renters and employees and have no savings that amount to more than a month's income. CPS invades your home and your lives all because of something as small as this article portrays. The remove children who are NOT abused nor neglected. Most children that the system steals are children who are "adoptable". These children are healthy, happy and well-mannered. The children who are gang members or into trouble all of the time are left in their homes unless there is REAL ABUSE which is rare. "It takes a village" is destroying our families!!! For those of you who do not believe this is true, my wish is for you to get a taste of the destructive forces that CPS brings...however, I wouldn't want to wish foster care on any child. "

 Is Government God??? wrote on November 3, 2007 1:23 pm:
" We are our children's parents. Therefore, we have the right to do what we think is best for our children. We conceived and gave birth to them, not the government. To often the government thinks they know better and step in. They are often wrong in what they believe is best for people. Whether or not the couple is right or wrong is irrelivant. "

 Jordan wrote on November 12, 2007 11:27 am:
" No, the Bible doesn't teach that drawing blood will shorten a person's life. But that's not the point! If you're arguing about how wrong the parents are, you've missed it by a mile. The government has stepped way over the line on this one. This is a sad case of reprehensible government intrusion into people's private lives. Does Big Brother know best? He sure thinks so. These parents better win this suit, and unreasonable seizure's like this better not happen again. "

 Coachdes wrote on February 25, 2008 10:14 am:
" The point is the govenment showed up and took this child away from his parents without warning and at their will. Was this in Nazi Germany? How far will we go before we defend our rights? My son is in school now- first grade but in a private school. I refer to him as "my property- even there because I want to make it very clear- he is mine and I'll defend him as I'd defend any of my other assets if someone tried to step in and take them! "

 For Parents Rights wrote on March 8, 2008 11:46 pm:
" Are you all refugees from a communist country? No level of government should have authority to force parents to give up their religious rights as they raise their own children. "

 Jaime wrote on March 31, 2008 10:41 pm:
" I don't see why the parents weren't told that by not having their baby tested, they would be in danger of losing her until the test was performed. I understand that the parents are against the test and the test really has low odds of coming back positive for anything. It's more of a safety measure, but is it really such a huge deal that the police had to seize the baby? "

 insa wrote on November 29, 2008 1:36 am:
" This is a matter of rights and beliefs. I for one believe that regardless of who's religions says what it is a parents choice what is done to there children. The state has no right to seize someones child for testing on the grounds it may save a life. Its time we as people are allowed to govern our own bodies and are rights are respected. I for one believe the same belief and am having a baby my baby on monday. I am refusing this newborn screening as well. Its religious prosecution and its wrong. We are not hurting anyone. "

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