THE CASE OF THE RELIGIOUS GAY BLOOD DONOR.

• Author: Soucek, Brian

TABLE OF CONTENTS INTRODUCTION 1896 I. THE MSM BLOOD BAN 1899 II. EQUAL PROTECTION VERSUS RELIGIOUS FREEDOM 1904 III. THE RELIGIOUS FREEDOM CASE: A WIN-WIN? 1910 A. Winning by Winning 1912 B. Winning by Losing 1916 1. The MSM Blood Ban Is Not a Substantial Burden on 1917 Religion Because Other Forms of Charity Are Possible 2. The MSM Blood Ban Is Not a Substantial Burden on Religion 1919 Because Donating Blood Is a Marginal Religious Practice 3. The FDA Has a Compelling Interest in Maintaining a Uniform 1923 System for Blood Donations 4. The MSM Ban Is the Least Restrictive Means Available 1926 Because Other Alternatives Would Cost More 5. The MSM Ban Is the Least Restrictive Means Available 1931 Because Other Alternatives Would Burden Third Parties IV. WHY DOES THIS CASE NOT EXIST? 1935 Conclusion 1940 INTRODUCTION

Sexually active gay men cannot donate blood under current federal law. (1) But federal law also prohibits the government from substantially burdening someone's religious practice unless it is the least restrictive way of advancing a compelling governmental interest. (2) So what happens if a gay man wants to donate blood as an act of charity--a religious practice encouraged by his church? (3)

This Article imagines the lawsuit that might allow him to do so. The suit could go either of two ways. Given the generous understanding of religious liberty law in recent Supreme Court opinions, (4) the case might be an easy win. Requiring celibacy as the price of living one's faith surely counts as a burden that is substantial; and public health, while clearly a compelling governmental interest, does not necessitate such draconian means, as the experiences of other countries, the testimony of medical experts, and advances in HIV testing all make clear. (5) A win for the plaintiff would be a major gay rights victory, undermining an enduring and stigmatizing policy remnant of the AIDS crisis. (6)

On the other hand, the government might claim that giving blood is not really a form of religious exercise, or that even if it is, it is a religious calling that can be answered in alternate ways. A gay man who wants to be charitable can donate money or time or soup--not blood. The government might also claim that expanding the pool of blood donors would either increase costs, if it is to be done safely, or would marginally increase the rate of HIV transmission through the blood supply--thereby imposing burdens on third parties such as hemophiliacs and others who depend on blood transfusions.

This is all to say that the religious gay plaintiff could lose. But his loss would likely require courts to clarify--and curtail--some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: The expansive and deferential notion of "substantial burden" at play in cases such as Hobby Lobby, (7) and the disregard for governmental and third-party costs seen in recent actions by the Department of Justice, (8) the Department of Health and Human Services, (9) and those across the country seeking exemptions to antidiscrimination laws that protect gays and lesbians. (10) In short, the case is a coin toss: heads, gay rights advocates win; tails, religious conservatives lose.

It needs to be asked, then, why gay rights advocates are not clamoring to bring such a case. Perhaps they just have not thought of it; after all, it has never been proposed in academic literature. But Part IV of this Article argues that deeper considerations may be at play: worries about the way this litigation could provoke antigay backlash and reinforce stereotypes, even as it promises to disrupt the stereotypical opposition between religion and gay rights.

Before getting there, Part III, the heart of the Article, shows how this hypothesized challenge brings together in a single case all of the deepest unanswered questions in recent religious liberty law--from the nature of religious burdens and the fungibility of religious practice, to the costs of granting exemptions and the ways those costs can be disbursed without violating the Constitution. Part III looks at how a religious gay blood donor could win either by actually winning his case, or by a loss that manages to curb recent advances in religious freedom law that are currently threatening Lesbian, Gay, Bisexual, and Transgender (LGBT) and women's rights.

Prior to that, Part II shows how a religious freedom challenge to the gay blood donation ban differs from the more predictable equal protection challenge that others have discussed (11)--and how the former may be a stronger claim. Part I begins by explaining the ban that is at issue in everything that follows.

1. THE MSM BLOOD BAN

   The ban on blood donations by men who have had sex with other men (MSM) was born in necessity. When AIDS was first identified in the early 1980s, sex between men and blood transfusions were among the most common--and first identified--ways that the disease spread. (12) But until the link to HIV was established, and a test to screen for it was developed in 1985, (13) preventing donations by high risk blood donors was the only way to keep the blood supply safe. (14)

   In the three decades since then, advances in testing "have reduced the risk of HIV transmission from blood transfusion from about 1 in 2500 units prior to HIV testing to a current estimated residual risk of about 1 in 1.47 million transfusions." (15) Yet the euphemistically described "deferral" policies affecting gay blood donors have not kept up. (16)

   In 1983, the U.S. Public Health Service announced that:

   As a temporary measure, members of groups at increased risk for AIDS should refrain from donating plasma and/or blood. This recommendation includes all individuals belonging to such groups, even though many individuals are at little risk of AIDS. Centers collecting plasma and/or blood should inform potential donors of this recommendation. (17) "[S]exually active homosexual or bisexual men with multiple partners" were among the groups listed as high risk. (18) Though blood donation centers were told to publicize the recommendation, they were not required to question donors about their sexual behavior, much less their sexual orientation. (19)

   In 1985, the United States Food and Drug Administration (FDA) refashioned its donor deferral recommendations to say that "any man who has had sex with another man since 1977 should not donate blood or plasma. This applies even to men who may have had only a single contact and who do not consider themselves homosexual or bisexual." (20)

   On the one hand, the rewording tried to deemphasize the link to sexual orientation. Behavior rather than identity became the decisive factor. (21) But at the same time, the behavior deemed risky was significantly broadened, from same-sex activity with multiple partners to any single instance of male-male sexual contact anytime since 1977. (22) An FDA memorandum issued in 1992 clarified that men who had had such contact were considered "unsuitable" donors, banned from donating blood for the rest of their lives. (23)

   The FDA's 1985 policy was issued just as blood tests for HIV were first being developed and donor deferrals were no longer the only way of preventing transmission through the blood supply. (24) But the initial test, which screened for antibodies, (25) not only resulted in a high number of false positives but, far more troublingly in this context, produced false negatives during an approximately six-to-fourteen-week "window period" before antibodies could be detected in someone's blood. (26) Even an eight-week window period, given infection rates at the time, would have prodcued an estimated risk of one HIV transmission for every 153,123 units of blood. (27) Nucleic acid testing, which has now been in use for almost two decades, reduces the window period between infection and detection dramatically: it now spans only eleven days. (28)

   Despite these dramatic changes in our ability to test for HIV, the lifetime ban on MSM donors remained in place until 2015. At the end of that year--after years of study and lobbying by stakeholders as important as the Red Cross (29)--the FDA reduced the deferral period for male donors to one year, bringing the MSM restriction in line with those for heterosexuals who have had sex with an HIV-positive partner (or partners), women who have sex with MSM, or people treated for syphilis or gonorrhea. (30)

   The FDA continues to study the revised one-year ban to determine whether it should be shortened further or otherwise changed. (31) A call for comments on the policy produced 670 responses in 2016. (32) Many used nearly identical words to decry "pressure from the radical Homosexual Lobby to ignore scientific evidence." (33) Others provided scientific evidence of their own. (34)

   Dissatisfaction with the current one-year MSM ban stems from several directions. (35) First, a year is far longer than the eleven-day window period in which current testing methods fail to detect the presence of HIV. (36) Second, although the move to a one-year ban brought the United States in line with current policies in Australia, Canada, and many European countries, (37) other countries have now moved to shorter deferral periods. Japan has a six-month deferral for MSM, while the United Kingdom very recently switched from a one-year to a three-month deferral. (38) Still other countries, such as Italy and Spain, have done away with standardized deferral periods for MSM donors, replacing them with deferrals that apply to all donors, based on individualized risk screening. (39) Finally, testing donors again after the window period could eliminate the need for deferrals entirely. France now allows donors who have only had one sexual partner in the past four months--no matter their gender--to donate plasma, (40) which is then frozen and quarantined until the donor returns at least two months later and again tests negative for HIV. (41) Israel has...