Health department asks judge to dismiss newborn screening lawsuit
OMAHA — State attorneys say an Omaha family who objected to mandatory blood tests of their newborn baby sued the wrong entity.
After Mary and Josue Anaya told Health and Human Services employees in September that they would not submit their son, Joel, for testing, workers reported the family to the Douglas County Attorney.
When sheriff’s deputies seized the child from the Anayas’ home Oct. 11, the health department took custody and the screening test was performed.
But it was the county attorney’s office — not the health department — who sought the protective order that the Anayas claim deprived them of their civil rights, according to the brief filed Thursday in U.S. District Court.
“The Anayas have brought their action against the wrong party,” wrote Michael Rumbaugh, assistant attorney general.
Health officials “did not institute the proceeding or seek the protective order of which the Anayas complain.”
The state is asking a judge to dismiss the lawsuit, which was filed against health department officials in October.
A message left for the Anayas’ attorney was not immediately returned Friday.
The Anayas 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,” the Anayas’ lawsuit claims.
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 not seeking damages, but they want to ensure that this won’t happen again if they have more children.
“It is true that ... it is sufficiently certain that any additional children the Anayas have in the future will be subject to the (testing),” Rumbaugh wrote.
But that doesn’t mean the family will always have the screening enforced by a protective order, and the case should be dismissed because the baby has already been tested and the court can’t provide relief, according to the brief.
“Indeed, the complaint itself points out that a protective order was not sought in 2003 when the Anayas’ daughter Rosa was ordered by the District Court of Douglas County to undergo the screening program,” Rumbaugh wrote.
In Rosa’s case, 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. He remained in foster care for several days until the preliminary results came back and confirmed further testing wasn’t needed.
The county attorney dropped the case, and no criminal charges were filed.
After Mary and Josue Anaya told Health and Human Services employees in September that they would not submit their son, Joel, for testing, workers reported the family to the Douglas County Attorney.
When sheriff’s deputies seized the child from the Anayas’ home Oct. 11, the health department took custody and the screening test was performed.
But it was the county attorney’s office — not the health department — who sought the protective order that the Anayas claim deprived them of their civil rights, according to the brief filed Thursday in U.S. District Court.
“The Anayas have brought their action against the wrong party,” wrote Michael Rumbaugh, assistant attorney general.
Health officials “did not institute the proceeding or seek the protective order of which the Anayas complain.”
The state is asking a judge to dismiss the lawsuit, which was filed against health department officials in October.
A message left for the Anayas’ attorney was not immediately returned Friday.
The Anayas 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,” the Anayas’ lawsuit claims.
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 not seeking damages, but they want to ensure that this won’t happen again if they have more children.
“It is true that ... it is sufficiently certain that any additional children the Anayas have in the future will be subject to the (testing),” Rumbaugh wrote.
But that doesn’t mean the family will always have the screening enforced by a protective order, and the case should be dismissed because the baby has already been tested and the court can’t provide relief, according to the brief.
“Indeed, the complaint itself points out that a protective order was not sought in 2003 when the Anayas’ daughter Rosa was ordered by the District Court of Douglas County to undergo the screening program,” Rumbaugh wrote.
In Rosa’s case, 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. He remained in foster care for several days until the preliminary results came back and confirmed further testing wasn’t needed.
The county attorney dropped the case, and no criminal charges were filed.
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