448 F.Supp.2d 1129 (D.Neb. 2006), 4 04CV3385, Spiering v. Heineman

Docket Nº:4 04CV3385
Citation:448 F.Supp.2d 1129
Party Name:Spiering v. Heineman
Case Date:September 12, 2006
Court:United States District Courts, 8th Circuit, District of Nebraska

Page 1129

448 F.Supp.2d 1129 (D.Neb. 2006)

Louise SPIERING and Ray Spiering, husband and wife, Plaintiffs,

v.

Governor Dave HEINEMAN, in his individual capacity and official capacity as Governor of the State of Nebraska, Attorney General Jon Bruning, in his individual capacity and official capacity as Attorney General of the State of Nebraska, Nancy Montanez, in her individual capacity and official capacity as Director of the Nebraska Department of Health and Human Services, Richard Raymond, M.D., in his individual capacity and official capacity as Director of the Nebraska Department of Health and Human Services Department of Regulation and Licensure, and Julie Miller, in her individual capacity and official capacity as Coordinator of the Nebraska Department of Health and Human Services Newborn Screening Program, Defendants.

No. 4:04CV3385.

United States District Court, D. Nebraska.

Sept. 12, 2006

Page 1130

[Copyrighted Material Omitted]

Page 1131

Amy A. Miller, American Civil Liberties Union Foundation of Nebraska, James L. Beckmann, V. Gene Summerlin, Jr., Ogborn, Summerlin Law Firm, Lincoln, NE, for Plaintiffs.

David D. Babcock, Michael J. Rumbaugh, Roger S. Brink, Nebraska Health and Human Services, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

Loving parents want to delay the state-mandated testing of their newly born infants for metabolic diseases because of their sincere religious beliefs and because of their equally sincere and related concern for the health of their children. Just as committed to the well-being of newborns, the State of Nebraska refuses to accommodate the family. Nebraska fervently believes that such an accommodation would harm children.

Realizing that there is very little law on the subject, I decide that Nebraska's newborn testing regime, as now constituted, 1 survives the plaintiffs' challenge.

I. BACKGROUND

Cross-motions for summary judgment have been filed. The plaintiffs' statement of undisputed facts appears at filing 76, pages 1-7, and the defendants' statement of undisputed facts appears at filing 70, pages 1-5.

Since neither side contested the opponent's facts, all of them are admitted. See NECivR 56.1. Unless a more specific citation is given, the facts recounted below are derived from the parties' statements of undisputed fact. I find the following facts to be the material ones:

The Spierings and Their Religious Beliefs

1. Although they are not formally members of the church (filing 79 ¶ 5), Ray and Louise Spiering follow the teachings of Scientology as they understand those

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teachings. They are sincere in their beliefs. That said, I do not determine whether the Spierings correctly understand and follow the true doctrines of Scientology. "[C]ourts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim." Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (the Free Exercise Clause permits a state to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use).

2. The Spierings' religious beliefs include the concept of "Silent Birth." Based on this religious tenet, and among other things, they believe that parents should insulate their newly born infants from pain during the birth process and for a period of seven days after birth. The Spierings sincerely believe that subjecting a child to the pain and trauma of a blood draw within seven days of birth violates the religious precept of "Silent Birth" and could cause the child to later suffer physical or mental injury.

3. The Spierings are sexually active. They do not use birth control measures. Given the difficulty that the Spierings experienced with Nebraska over the birth of their fourth child (discussed next), and the real possibility that Mrs. Spiering may become pregnant again, this case presents a live controversy, this case is ripe and it is not moot.

The Spierings' Four Children and the Temporary Restraining Order (TRO)

4. The Spierings have four children. The Spierings have no family history of any of the disorders screened for by the State of Nebraska.

5. The oldest child was born in Minnesota and the Spierings were allowed to opt out of testing based upon their religious beliefs. In contrast, and despite the fact that all states require some type of testing, Nebraska is one of the few states that do not allow an exemption for testing based upon religious grounds. 2

6. The next two children were born in Nebraska. Although they would have preferred to wait seven days, through the help of their physician, the Spierings were able to delay testing for these children for five days.

7. The Spierings' fourth child was the original focal point of this litigation. When the Spierings learned that their physician would no longer help them delay testing, and prior to the birth of their fourth child, they filed suit.

8. On December 17, 2004, and presented with the impending birth of the fourth child, I granted a TRO prohibiting Nebraska from enforcing its then current regulations regarding metabolic testing against the Spierings until the eighth day after the plaintiff's fourth child was born. (Filing 8.) In that decision, I emphasized that "my mind may well be changed by a better developed record and briefing." (Id. at 3.) Nonetheless, I was particularly concerned that Nebraska's regulatory scheme, as then constituted, contained an odd quirk. If the child was born in a hospital, a blood draw for testing was required within 48 hours, but if the child was born at home, the blood draw could be completed seven to ten days after the child was born. Despite this difference, Nebraska

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refused to accommodate the Spierings' desire to delay the testing of their infant for seven days. The practical result of Nebraska's position was to force Mrs. Spiering to give birth at home rather than in a hospital if she desired to follow her religious beliefs. Because the "born-at-home" exception seemed unrelated to the health of the infant or the health of the mother and because it also provided an unintended incentive to Mrs. Spiering to endanger herself and her infant, I granted temporary relief. Nonetheless, I ordered the Spierings to have their child tested as soon as possible after the seventh day.

9. Shortly after I issued the temporary restraining order, the Spierings' fourth child was born. The child was healthy. After seven days, the baby was tested as I had ordered and the testing information was provided to Nebraska. (See Filing 14.)

The Present Testing Scheme

10. Because some diseases have potentially devastating consequences if not diagnosed and treated soon after a child is born, Nebraska law requires that all infants born in the State of Nebraska must undergo screening for certain metabolic diseases. Neb.Rev.Stat. Ann. §§ 71-519 to 71-524 (LexisNexis 2006). 3 The Nebraska Department of Health and Human Services ("Department") is authorized to promulgate regulations to implement the law. The Department depends upon an advisory panel of doctors and other experts to advise it regarding these regulations. Based upon that advice, the current regulations provide:

All infants born in the state of Nebraska must be tested for the following diseases:

1. Biotinidase Deficiency [BD];

2. Congenital Adrenal Hyperplasia [CAH] (for specimens received at the newborn screening laboratory on or after January 2, 2006);

3. Congenital Primary Hypothyroidism [CPH];

4. Cystic Fibrosis [CF] (for specimens received at the newborn screening laboratory on or after January 2, 2006);

5. Galactosemia [GTS];

6. Hemoglobinopathies [HGP];

7. Medium Chain Acyl-CoA Dehydrogenase Deficiency [MCAD]; and

8. Phenylketonuria [PKU].

Nebraska Health and Human Services Regulation and Licensure Regulation, 181 NAC § 2-003 (effective September 26, 2005) (hereinafter "181 NAC§ ___"). (The current regulations are found at Filing 71, Exhibit 2.)

11. Unlike the regulations that were in place when this case was first commenced, the general rule in Nebraska is that the screening test for babies, whether born in a hospital or not, must be performed between 24 to 48 hours after birth. In other words, the general rule is that all infants are subject to the 24- to 48-hour specimen collection requirement.

12. Hobart E. Wiltse, M.D., Ph.D., Professor Emeritus in Pediatrics at the University of Nebraska Medical Center, and Richard E. Lutz, Associate Professor of Pediatrics at the University of Nebraska Medical Center, have advised the defendants on the challenged regulations. Dr. Wiltse is of the opinion that delaying screening and thus treatment for children with PKU, GTS, MCAD, CAH and CPH for even eight days would present significant

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medical risks to children. Indeed, some of those diseases could cause death or permanent injury if not diagnosed and treated within the first week of life. Dr. Lutz holds similar views. In particular, Dr. Lutz has dealt with several children with GTS who experienced life-threatening complications of the disease at four to five days of age. The plaintiffs have presented no medical evidence that contradicts the opinions of Dr. Wiltse and Dr. Lutz.

13. While there is no perfect time to draw the sample and do the testing given the number of illnesses that are the subject of screening, the doctors believe that the 24-to 48-hour period is the ideal. (Filing 71, Exhibit 5, CM/ECF page 13 (Deposition of Dr. Wiltse); Filing 71, Exhibit 6, CM/ECF page 4 (Deposition of Dr...

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