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RUSH: To the phones, Lincoln, Nebraska. Jeff, thanks for the call, sir. It’s nice to have you here.

DOWNING: Rush, Cornhusker dittos from the reddest of the red states.

RUSH: Thank you, sir.

DOWNING: It just so happens, Rush, that I heard the Morning Update this morning, and it’s one of my cases that you had an outstanding commentary on.

RUSH: Thank you, sir.

DOWNING: Well, it regards the Nebraska Newborn Screening Program, one of our Nanny State provisions in the law which requires that babies have a heel stick, and five drops of blood are put on some paper, and then the state screens for one of eight inherited metabolic genetic disorders.

RUSH: Such as…?

DOWNING: Such as things like a PKU, cystic fibrosis, hemoglobinopathy, like sickle cell diseases, and so on. These are things which are inherited. They’re incredibly rare, usually one in 10,000, one in 30,000, but nonetheless, our state — along with most other states — have these mandated screening programs. Unfortunately, Nebraska doesn’t have an opt-out provision, and so I, unfortunately, had some clients who, in declining doing the newborn screening after a home birth, were the victim of the Nanny State run amok.

RUSH: Yeah, let me briefly tell the story here because who we’re talking to, you’re Jeff Downing, correct?

DOWNING: Correct.

RUSH: You’re the parents’ attorney.

DOWNING: That’s right.

RUSH: The parents’ — I guess it’s for religious reasons?

DOWNING: Yeah, exactly.

RUSH: Decided that they didn’t want the screening done on their child, and so the state came in and took the kid.

DOWNING: Exactly.

RUSH: The state came in, took the child and tested anyway and put it in foster care, an infant, for a week!

DOWNING: Five weeks and four days old, still nursing nine to ten times per day, had never taken a bottle, had never been fed by anyone but his mother, Mary Anaya and the state came in — and the comment of the deputies as they carted this baby away, was, and she’s begging the nurse — ‘Ma’am, don’t worry. Professionals will take care of him.’

RUSH: Now, let me ask you: Did they take the baby from their home.

DOWNING: They did. They came rightly into the home, walked in, took the baby out of the arms of his 12-year-old brother, and then we were on a roller coaster for six days until we got this child back. The juvenile court judge just the signed an order saying: Well, if the state says these tests are mandated, then I think they should be done, regardless of the fact that the statute doesn’t even say what you do if the parents don’t test. It just says the judge can order an order, but it sure doesn’t say sheriffs can come in and take children out of the home.

RUSH: Yeah, this is frightening. I remember what I said about this in the Update today that you heard, is this: ‘Put aside for a moment whether you agree or disagree with the parents and their decision to opt out of the blood test. What really ought to chill people,’ and it probably did chill some spines of people hearing you that did not hear the Update today, ‘is what the episode represents: government officials walking into your house to seize a newborn. Imagine what they… If they won’t stop doing that, if they would not even hesitate to go take a five-week-old baby away from it’s nursing mother for six days, for blood tests, imagine what they might someday do to you should you make a decision as an adult that they don’t like. So my whole point about this, Jeff, was with people ceding all kinds of power to the government — particularly over their health, and their health care — this just equals less and less freedom that people and their families have, including over your own health. I’ve talked about this a lot lately. This is an example of the creeping control that the state is willing to assert over people, particularly in the area of health care.


RUSH: Now, help me understand. Why are people concerned about this — and this is not a critical question. I’m genuinely curious. Why is Nebraska, and other states, so concerned about testing to find these four or five diseases? They’re not contagious, are they?

DOWNING: They are not contagious. In fact, that’s an interesting point. All states unusually have a vaccination statute also. The vaccination statutes, however, provide religious exemptions or other medical opt-outs, and so if the government mandates something, but yet they give parents, who are in the very best position to know what is best for their children, then perhaps it’s not so intrusive. Here, the state interpreted this as saying, ‘Well, there is no opt-out, and so we’re coming in and we’re grabbing this baby,’ regardless of the fact that he is still nursing nine or ten times a day.

RUSH: Right.

DOWNING: It was the first time.

RUSH: What’s superseded here was the law, the letter of the law — even though there was no provision for what you do if the parents opt out — over common sense.

DOWNING: Exactly.

RUSH: In this case. What’s the reason? Look, I don’t mind admitting my ignorance on this. What’s the reason for the state to know whether somebody has a baby with cystic fibrosis?

DOWNING: Well, they simply want to be able to provide the parents — by the way, here’s what the next letter or section of the law says. If the child has one of these rare metabolic disorders, then they provide the parents with information about it, and then the parents can make a decision about treatment. That’s literally what the law says. It doesn’t say then —

RUSH: Well, wait a minute. What are doctors supposed to do?

DOWNING: Well, that’s exactly right. The doctors of the Nanny State are not the ones who control the decision making. It’s the parents. So that’s what’s so particularly (garbled).

RUSH: No, what I meant was you’ve got the state mandating the doctors explain to you if your child has one of these metabolic disorders, or is it the state that comes in and tells you, a representative of the government that comes in and tells you what your options are and how you should take care of the kid?

DOWNING: Yeah, as a matter of fact, they order the doctors to provide the parents with information. So, again, it’s more intrusion into the physician’s practice as well.

RUSH: Okay, what are the ‘good intentions’ behind? There always are good intentions when legislators start passing laws like this. What are the good intentions behind this, Jeff?

DOWNING: The good intentions are this. In these very rare instances, if the child is provided with medical treatment in the first days or weeks of life, then perhaps the metabolic disorder can be reversed and the child may not suffer from mental retardation or very devastating things. But yet, when the government says, ‘Even though this is incredibly rare, we’re going to mandate this,’ they then follow it up with armed men coming into your home with all the force of the government coming down upon this family. So it was the biggest government overreach that I’ve ever seen, as a lawyer. It was the first time I didn’t feel like I was participating in the American legal system, and it had everything to do with a mandate in the health care industry.

RUSH: Did you try to talk your clients into changing their mind about the testing?

DOWNING: I didn’t, Rush, because our country is founded upon people having religious and conscientious objections to the way a state or a government is running things. That’s why our founders came here and started this grand experiment in democracy. So it really goes to the very root of what our religious freedoms are, and I know your brother, David, wrote a fantastic book called Persecution which, in instance after instance, he highlighted how the government has come in and intruded into the private lives of people, over matters of conscience or faith, and that really is what happened in the Anaya case here.

RUSH: Is everything okay with the child?

DOWNING: Well, of course the silver lining is — and what we knew to the case was — this baby didn’t have any problems. In fact, he was healthy as a horse. He was growing. He was strong, and the only times that there was any disruption to his life, and he was perhaps endangered at all, was when he was taken from the sustenance of his mother for almost five and a half days. She did get to nurse a little bit, but nowhere near the level of care he had before.

RUSH: Yeah, but you heard — hey, I said this to your clients. ‘Hey, we’re all professionals here.’ (laughing) When I hear that line, it’s time to run for the tall grass. ‘We’re all professionals here.’

DOWNING: That’s exactly right, and this was a case where it was great that an organization like the Alliance Defense Fund, who I’ve been trained by, there are hundreds, if not a thousand, lawyers now spread across the country that when we see government intrusions and overreaching like this, we’re trained and we can jump in and represent people in circumstances like this.

RUSH: Well, you know, here’s the thing, and I’ve only got 20 seconds here. The law is the law. The problem with this law is that there was no provision for an opt-out. What’s the penalty? What do you do? So they just assumed that they had the right, even though the law didn’t give them the right, to go take the baby. But the law does say the kid has to be tested. You can argue the — and I know you did argue — religious exemptions and so forth, but this is an example where law being really rigid sometimes is not good law.

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