By The Associated Press
Friday, Dec 05, 2008 - 02:22:11 pm CST
Nebraska’s newborn screening law doesn’t violate a right to freely practice religion, but state officials crossed a line when they took an infant from his parents for a week last year, the state Supreme Court ruled on Friday.
The law that was upheld by the high court requires blood to be drawn from infants to test for rare and deadly diseases. But the court also said an Omaha infant was hurriedly, and improperly, taken from his parents by officials who said the parents weren’t properly caring for him and that he was in danger because the tests weren’t performed.
Said the infant’s mother, Mary Anaya, as she wept Friday: “I’m relieved to know if we find ourselves in the same situation we don’t have to be violated by having (police) sweep into our home and terrorize our children.’’
But, she added, “What’s done can’t be undone. It’s only a small satisfaction that what was done to us was found to be wrong when there’s no consequences … it’s a small consolation.’’
She and her husband, Josue, believe that, in accordance with the Bible, blood shouldn’t be deliberately drawn and that doing so can shorten a person’s life. 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 test involves a pinprick and checks for eight metabolic and genetic disorders, including cystic fibrosis.
In its ruling on Friday, the high court recalled a ruling it made three years ago in the case of another Anaya child, Rosa. In that case, the couple argued that the newborn testing law violated the First Amendment of the U.S. Constitution, which says laws can’t prohibit the exercise of religion.
The state Supreme Court eventually turned down their arguments, but Rosa never was tested.
In the new case, the Anayas challenged the screening law by saying it violates a clause of the Nebraska Constitution that says people can worship God according to their own consciences. The Anayas argued that the law sets a higher standard than the U.S. Constitution.
But the high court disagreed, saying similarities between the two constitutional clauses required it to review the law’s compliance with the U.S. Constitution. The court repeated its opinion from three years ago that the law does not specifically aim to infringe on religion, pointing out the law does not include exemptions for some children to be excused from testing.
The case settled by the high court on Friday began after Anaya gave birth to Joel at home on Sept. 2, 2007. The Anayas received a letter and phone call weeks later asking whether they would have Joel tested.
The letter said that if they did not, the county attorney would be notified.
Unlike in 2003, when Rosa wasn’t tested, state officials wanted to make sure testing was completed. They got an order from a juvenile court judge to take the baby.
Sheriff’s deputies went to the Anayas’ home Oct. 11, 2007, to take Joel, who was almost 6 weeks old.
Mary Anaya said four armed deputies came into her house that day. She said she tried to keep them outside, even using physical force, but they came in and took Joel from the arms of her 12-year-old child.
“It was terror,’’ she said.
He was placed in the custody of the state Department of Health and Human Services.
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. He was returned to them Oct. 16, when the tests came back negative.
The high court, in the opinion written by Judge Lindsey Miller-Lerman, criticized the decisions that were made. While failure to do the required tests can be considered with other actions to conclude a child is being neglected, “failure to test under the newborn screening statutes, standing alone, does not establish neglect,’’ says the ruling issued on Friday.
“There simply was no legal, factual, or logical basis to keep Joel in state custody after the blood sample was taken,’’ it goes on to say.
The high court pointed out that the newborn testing law directs officials to use district courts to force parents to comply with the law.
The allows the officials “to get a kid, then ask questions later,’’ said Jefferson Downing, attorney for the Anayas.
“The use of the juvenile code was absolutely improper,’’ he said. “The manner in which they went about enforcing the statute broke this family for a week.’’
