Religious Objection to Genetic Screening Test

[Gene Summerlin]

I have been contacted by a family that is expecting a baby in about two
weeks.  The family is new to Nebraska and just found out that Nebraska has a
mandatory PKU screening test that, by statute, must be performed via a blood
draw within 24 to 48 hours of birth.  There is no religious-objection
opt-out for the test in Nebraska (almost every other state that requires the
PKU screen either allows an opt out or allows up to five days to perform the
blood draw).  The PKU screen identifies babies that are at risk for
developing a certain treatable type of mental retardation.  The parents
don't object to the PKU blood test per se, rather, their religious beliefs
compel them to follow a silent birth procedure which precludes allowing the
blood draw within the first 72 hours of birth.  They have no problem with
allowing the blood draw after that time and there is, apparently, no medical
reason why the test has to be performed within the first 48 hours.  Yet, the
law specifically requires the baby's physician to take the blood draw within
24 to 48 hours from birth.

My constitutional law practice has typically involved Free Speech cases, but
now the family and Nebraska's ACLU have asked me to represent this family
and I'm a bit out of my area of familiarity.  I recognize that the Court has
upheld mandatory vaccination laws from Free Ex challenges on the basis that
the laws are necessary to protect the public health (though there would seem
to be a distinction between vaccinations and screenings).  I also recognize
that since Smith, Free Ex challenges are essentially subject to a rational
relationship test unless a hybrid claim is asserted.  I'm curious if anyone
has ever addressed a similar issue whether from a free exercise standpoint
or substantive due process perspective.

Feel free to contact me off list if you have any suggestions or can provide
any guidance.

Thanks,
Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
gene at osolaw.com


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