Fourth & Fourteenth Amendment challenges to Michigan’s “blood spot” newborn health screening program; MCL 333.5431; The “law of the case” doctrine; Whether storing anonymized blood spots & using them for purposes beyond the child’s medical diagnosis or treatment interferes with parents’ fundamental right to direct their children’s medical care; Capen v Saginaw Cnty; Whether defendants violated plaintiffs-children’s Fourth Amendment rights by storing & using the blood spots & data without consent; Search & seizure; Whether plaintiffs had a “possessory interest” in the blood spots & data; Mootness; Michigan Department of Health & Human Services (MDHHS)

[This appeal was from the ED-MI.] In this case raising Fourteenth and Fourth Amendment challenges to Michigan’s newborn health screening program that involves collecting blood samples, the court held that plaintiffs-families “failed to show that defendants’ conduct at issue—retention and use of the dried blood spots and data—implicates the parents’ right to direct the control of their children’s medical care.” It also held that “dried blood spot storage; data storage; and use of the dried blood spot for research, equipment calibration, test improvements, and victim identification” did not constitute “an unreasonable search or a seizure under the Fourth Amendment.” MCL 333.5431 requires medical personnel to prick every newborn’s heel within hours of birth to create “a dried blood spot card.” Plaintiffs argued that “Michigan’s scheme entails coercive, non-consensual taking and keeping of baby blood for the state’s profit, in violation of the Fourth and Fourteenth Amendments.” The district court initially dismissed their claims, but a prior panel of the court reversed as to several claims and remanded. On remand, the district court ruled for plaintiffs. In this appeal, the court first found that the appeal was not moot, and that “conclusory legal statements from” its prior opinion did “not establish binding law of the case[.]” Turning to the merits, as to the Fourteenth Amendment claim, the court considered whether the actions at issue—“storing anonymized blood spots and using them for purposes beyond the child’s medical diagnosis or treatment—impede plaintiff-parents’ fundamental right to direct” their children’s medical care. It concluded that, as “set forth, they do not.” It noted that under “no reading of the caselaw can one argue that the literal act of storing involves medical treatment, diagnosis, or advice, or that this act intrudes on bodily integrity. Nor do the other uses—quality assurance, test improvement, test development, research, and victim identification—constitute medical care for the child who provided the blood spots.” The court then considered whether “storing and using the blood spots and data without consent” violated plaintiffs-children’s Fourth Amendment rights. It concluded that “much of defendants’ conduct is not a search because it is not ‘an attempt to find something or to obtain information.’ . . . [T]he third-party researchers do not obtain private information about individual plaintiff-children because all blood spots are anonymized.” Further, plaintiffs could not show that they were subject to a “seizure” where they failed “to prove that they had a possessory interest in the blood spots and data.” The court reversed the judgment for plaintiffs and vacated “the injunction requiring defendants to destroy the stored data.”