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Note: Bad Blood: An Examination of the Constitutional Deficiencies of the FDA’s “Gay Blood Ban”

By Mathew L. Morrison. Full text here.

The LGBT community has made great strides in attaining legal rights, beginning largely with Lawrence v. Texas and, to date, culminating with Windsor v. United States. These decisions have granted a broad array of rights, and many argue that the right of same-sex couples to marry nationwide is inevitable. However, this is not to say that LGBT rights have developed to the point that puts the community on equal footing with the rest of America. This is true not only socially, but legally as well.

Specifically, gay and bisexual men, or any male who has had sex with another man (MSM) since 1977 is currently barred from donating blood, even in life-threatening circumstances or where blood is scarce. The Food and Drug Administration (FDA) currently bars the MSM population from donating, but, after considerable pressure from the legal and medical community, recently decided to revisit the lifetime ban in favor of a one-year deferral. However, the one-year waiting period is still insufficient, and as such the FDA’s policy must be challenged if it is to be lifted in favor of a better donation policy.

This Note seeks to examine the history of the HIV/AIDS epidemic, which gave rise to the current ban and proposed new policy, as well as to provide a brief examination of past legal challenges to the ban. This Note will, moreover, consider the underlying constitutional problems with the ban, especially in light of recent court treatment of sexual orientation. Ultimately, the Note will provide a more comprehensive framework not only for challenging the FDA’s donation policy on its merits, but will also suggest a more effective policy that will protect both the integrity of the nation’s blood supply and the dignity of the LGBT community.