Law Firm Files Petition for En Banc Rehearing in Groundbreaking Newborn Genetic Privacy Case Before the U.S. Court of Appeals for the Sixth Circuit

For Immediate Release | July 26, 2025
https://olcplc.com/public/media?1753491528

Outside Legal Counsel PLC (OLC), a Michigan-based law firm specializing in constitutional rights and civil liberties, announced today that it has filed a Petition for Rehearing En Banc in the case of Adam Kanuszewski et al. v. Michigan Department of Health and Human Services et al. (Case No. 23-1733). The petition, filed on July 23, 2025, seeks full court review of a recent panel decision that reversed a district court victory for parents challenging Michigan’s non-consensual retention and use of newborn blood samples and genetic data.

This high-stakes case addresses critical issues of parental rights, genetic privacy, and constitutional protections under the Fourth and Fourteenth Amendments. OLC represents four Michigan families who argue that the state’s Newborn Screening Program (NSP) violates fundamental liberties by indefinitely storing and potentially selling or sharing sensitive genetic material without informed parental consent.

Case Summary
Michigan’s NSP mandates heel-prick blood draws from nearly every newborn to screen for rare diseases, a practice that has been in place since 1965. While the initial screening is not contested, the state retains excess blood spots and derived data indefinitely post-testing, often transferring them to a state-affiliated biobank for uses including research, law enforcement investigations, and third-party sales. Since 1984, millions of such samples have been stored without parental knowledge or consent, raising alarms about privacy breaches and potential misuse.

The plaintiffs—parents Adam and Ashley Kanuszewski, Shannon LaPorte, and Lynnette Wiegand, on behalf of their minor children—filed suit in 2018, alleging violations of parents’ Fourteenth Amendment right to direct their children’s medical care and children’s Fourth Amendment protections against unreasonable searches and seizures. After a five-day bench trial, U.S. District Judge Thomas L. Ludington ruled in the families’ favor in 2023, finding the retention practices unconstitutional and ordering the return of samples and data destruction.

However, on June 25, 2025, a three-judge panel of the Sixth Circuit (Judges James L. Griffin, John B. Nalbandian, and Andre B. Mathis) reversed the decision, holding that the state’s actions do not infringe on parental rights or constitute Fourth Amendment violations. The panel dismissed claims related to anonymized data storage and non-medical uses, such as research and equipment calibration, as outside the scope of protected liberties.

OLC’s petition argues that the panel’s ruling defies the law-of-the-case doctrine established in a prior 2019 Sixth Circuit decision (Kanuszewski I), creates intra-circuit conflicts, and fails to apply mandatory vacatur for moot claims. It emphasizes the exceptional national importance of the case, as similar programs in states like New Jersey face parallel challenges. For instance, the Institute for Justice’s ongoing class action in New Jersey contests the state’s 23-year retention of newborn blood without consent, highlighting risks to privacy and parental autonomy amid rising concerns over genetic data misuse.

“This case is about more than Michigan—it’s about safeguarding the genetic privacy of every American child and upholding parents’ constitutional role in medical decisions,” said Philip L. Ellison, lead counsel at OLC. “The panel’s decision sets a dangerous precedent, allowing governments to hoard deeply personal data without oversight. The Petition urges the full Sixth Circuit to rehear this en banc and restore protections against unwarranted state intrusion into family life.”

The petition underscores broader implications, including parallels to historical abuses like the Tuskegee Study and recent Supreme Court rulings affirming parental rights in education and healthcare. If granted, en banc review could reinstate the district court’s injunction and set a nationwide standard for informed consent in newborn screening.

Outside Legal Counsel PLC is a specialty law firm based in Hemlock, Michigan, dedicated to defending constitutional rights, property rights, civil liberties, and government accountability. With a focus on complex litigation, OLC has successfully advocated for clients in high-profile cases challenging state overreach.

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