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Law360 (April 3, 2020, 4:11 PM EDT )
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| Doron Dorfman |
The blood ban was developed out of necessity in response to the 1980s HIV-AIDS outbreak and has since undergone some amendments. The recent iteration of the ban forbids blood banks from accepting donations from men who have had sex with men, or MSM, in the year prior to the donation.[1]
Scholars have criticized[2] this ban for years now, calling it outdated and unconstitutional, and although lifted in countries around the globe,[3] it persists even during blood shortages and[4] in the midst of a once-in-a-lifetime international public health crisis. Last week, a group of 15 U.S. Democratic senators sent a letter to the FDA[5] urging it to "shift away from antiquated and stigmatizing donation policies" to address the need for blood donations.
On April 2, the FDA published a recommendation[6] to blood banks to change the deferral period for donations from MSM to only three months instead of one year, due to the shortage. The new policy would allow MSM to donate blood if they have not had sexual contact within the last three months. This new policy has been accepted with mixed feelings among the LGBTQ community, as it still falls into the notion of persistent aversion to sex between men in American law, which scholars referred to as the afterlife of homophobia.[7]
Yet it is not only the dwindling blood supplies that might help change hearts and minds about this policy. As a scholar of health-related stigma, I argue that a potential change in public perceptions of infectious diseases following the pandemic might in fact act as the catalyst that will help completely lift this blood ban.
In the past two weeks, we witnessed a surge of interstate traveling restrictions. Governors of Alaska,[8] Florida,[9] Hawaii,[10] Texas[11] and Rhode Island[12] sought to reduce the number of out-of-state travelers by requiring arriving visitors to self-quarantine for 14 days. The governors focus on travelers from specific states with largest numbers of individuals infected by the virus[13] — New York, New Jersey, Connecticut and the City of New Orleans.
Both policies, the blood ban and the COVID-19 travel restrictions, share similar characteristics. They are regulations enacted to prevent an outbreak from spreading, and clearly they are both essential for containing the state emergency. Both policies rely on a specific type of behavior or activity related to the disease in question — sex between men or residing in a state grossly affected by coronavirus. Both are blanket policies — they generalize about entire populations and apply to all MSM and all residents of the states, without using tests to detect the virus.
Granted, interstate travel is a fundamental right[14] whereas giving blood is not. Nonetheless, regardless of the constitutional nature of interstate travel, no one would ever suggest that restricting certain Americans from entering a state simply because they live in another state should continue after the coronavirus pandemic has ended.
The restriction on blood donations, however, has remained in effect decades after HIV detection and prevention tools have been in place. Recent events[15] have demonstrated that it is likely that stigma and animosity toward state outsiders would follow the travel restrictions shortly after being put in place.
And here is my claim. When the national state of emergency has been lifted, a vaccine has been discovered, and this crisis is over, millions of Americans will experience firsthand the stigmatizing effects of blanket policies that generalize entire populations. Suddenly, residents of states once considered thriving will be deemed lesser, contaminated and a public health hazard.[16] After the coronavirus crisis has passed, people who have endured this will think differently about epidemics and public health incidents.
Research on empathy and perspective taking has shown that reflecting on personal experience is related to the tendency to take another's perspective[17] and elicit empathetic responses for somebody in similar situations. Therefore, people who have experienced stigmatization themselves, or even knew someone who belongs to a marginalized or stigmatized group, tend to be more empathetic toward others who are now experiencing parallel treatment.
FDA policies have historically been amended through public campaigns, advocacy and lobbying efforts. The FDA has stated that it intends to revise and replace its guidelines based on the implementation of the new recommendations within 60 days following the termination of the public health emergency.[18] This is therefore a rare moment in history and an opportunity for advocates to act and encourage the public to mobilize against the discriminatory and outdated blood ban.
Doron Dorfman is an associate professor of law at Syracuse University College of Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.fda.gov/vaccines-blood-biologics/blood-blood-products/revised-recommendations-reducing-risk-human-immunodeficiency-virus-transmission-blood-and-blood.
[2] https://www.nejm.org/doi/full/10.1056/NEJMms1613425.
[3] https://jamanetwork.com/journals/jama/article-abstract/1889152.
[4] https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-blood-donations.
[5] https://www.baldwin.senate.gov/imo/media/doc/FDA%20MSM%20Blood%20Donor%20Deferral%20Policy%20Letter%2003262020_final.pdf.
[6] https://www.fda.gov/media/92490/download.
[7] https://arizonalawreview.org/pdf/60-2/60arizlrev213.pdf.
[8] https://gov.alaska.gov/wp-content/uploads/sites/2/03232020-SOA-COVID-19-Health-Mandate-010.pdf.
[9] https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-82.pdf.
[10] https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-ATG_Second-Supplementary-Proclamation-for-COVID-19-signed.pdf.
[11] https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-mandating-14-day-quarantine-for-travelers-arriving-from-new-york-tri-state-area-new-orleans2.
[12] http://www.governor.ri.gov/documents/orders/Executive-Order-20-14.pdf.
[13] https://www.nbcnewyork.com/news/local/travel-advisory-in-effect-for-ny-nj-ct-as-tri-state-sees-more-than-65k-covid-19-cases/2349367/.
[14] https://blog.harvardlawreview.org/contagion-and-the-right-to-travel/.
[15] https://www.nj.com/coronavirus/2020/03/an-nj-license-plate-leads-armed-vigilantes-to-blockade-workers-with-fallen-tree-amid-coronavirus-fears.html?utm_source=twitter&utm_content=nj_twitter_njdotcom&utm_medium=social&utm_campaign=njdotcom_sf.
[16] https://www.washingtonpost.com/national/coronavirus-new-yorkers-stigmatized/2020/04/03/da96b9d2-7442-11ea-a9bd-9f8b593300d0_story.html.
[17] https://www.psychologytoday.com/us/blog/knowing-me-knowing-you/201708/does-past-experience-increase-empathy.
[18] https://www.fda.gov/media/92490/download.
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