Science or Stigma: Potential Challenges to the FDA’s Ban on Gay Blood, Dwayne J. Bensing, 14. U. Pa. J. Const. L. 485 (2011)

This article explores the constitutionality of the Food and Drug Administration's (FDA) twenty-six year ban on blood donations by men who have had sexual contact with other men ("MSM"). The FDA identifies MSM as a group whose blood donation would pose a higher risk of contaminating America's blood pool because of the history of HIV infection in gay men. In fact, the FDA defines a person as high risk if he has had sex with another man even once since 1977. If a person falls into such a category, they are given a lifetime deferral, meaning they are forever barred from donating blood. However, increasing pressure from the medical community and LGBTQ activists has raised the question: in a system where less than ten percent of eligible donors elect to donate blood, is there a rational reason for refusing to allow healthy gay men to donate blood?
 

In this article, the author asserts that the MSM ban is based on stigma rather than fact and serves to simultaneously reinforce negative stereotypes about gay men and undermines America's need for potential blood donors. By treating gay donors differently than straight donors, the MSM ban creates concerns over equal treatment under the Equal Protection Clause of the United States Constitution. The author addresses three available legal avenues for challenging the MSM ban: constitutional challenges based on recent Supreme Court decisions (namely, Lawrence v. Texas), challenges to the FDA policy under the Administrative Procedures Act ("APA"), and various ways in which the FDA itself can identify the constitutional issues surrounding its own policy to defer MSM donors. Furthermore, the author shows that advancements in technology, including effective HIV antibodies tests and the recent development of tests to identify the virus itself, have drastically reduced the likelihood of HIV-positive blood entering the blood pool, rendering "precautionary" policies such as the MSM ban irrelevant. Based on this analysis, the author concludes that the FDA's policy against blood donations by MSM is unconstitutional, arbitrary and capricious under the APA, and in violation of the Equal Protection Clause in an administrative setting because of its discriminatory effects against gay men.

There are other groups excluded by the FDA rules, including sex workers and IVDUs, who are not discussed in this article. The FDA's discussion of the restrictions on blood donation can be found here, and a Red Cross summary can be found here.