The Expressive Dimension of Donor Deferral
Authors: Dov Fox
Journal: The American Journal of Bioethics (2010)

"The Expressive Dimension of Donor Deferral." The American Journal of Bioethics, 10(2), pp. 42–43 Acknowledgment The author thanks Chris Griffin, Scott Grinsell, Jason Jones, Craig Kannoth and Nicole Reis. Notes 1. See 21 C.F.R. §640.3 (2006); U.S. Department of Health & Human Services, Summary Report on Workgroup to Identify Opportunities for Prevention of Acquired Immune Deficiency Syndrome (1983); FDA U.S. Department of Health & Human Services, Revised Recommendations for the Prevention of Human Immunodeficiency Virus (HIV) Transmission by Blood and Blood Products (1992), available at http://www.fda.gov/cber/bldmem/hiv042392.pdf. 2. See Charlene Galarneau (2010), “Blood Donation, Deferral, and Discrimination: FDA Donor Deferral Policy for Men Who Have Sex With Men,” American Journal of Bioethics 10(2): 29–39. Professor Galarneau proposes regulatory reforms that would broaden the character and scope of FDA deliberations. I have taken up similar proposals elsewhere. See Dov Fox (2005), “Safety, Efficacy, and Authenticity: The Gap Between Ethics and Law in FDA Decisionmaking,” Michigan State Law Review 2005: 1135, 1190–1196; Dov Fox (2008), “The Regulation of Biotechnologies: Four Proposals,” Hastings Center Report, March-April, at 57. 3. See also John G. Culhane (2005), “Bad Science, Worse Policy: The Exclusion of Gay Males From Donor Pools,” St. Louis University Public Law Review 24: 129 (discussing the deferral policy in terms of bad intent); Adam R. Pulver 2008), “Gay Blood Revisionism: A Critical Analysis of Advocacy and the ‘Gay Blood Ban,”’ Law & Sexuality 17: 107 (discussing the deferral policy in terms of bad effects). 4. Each of these dimensions of wrongful discrimination finds expression in the Supreme Court's antidiscrimination jurisprudence. I develop and discuss this three-part framework in Dov Fox (2009), “Note, ‘Racial Classification in Assisted Reproduction,”’ Yale Law Journal 118(7): 1844, 1856–1868. 5. See, for example, Hunter v. Underwood, 471 U.S. 222, 227 (1985) (invalidating an Alabama law that disenfranchised persons convicted of crimes “involving moral turpitude” on the ground that the “the crimes selected for inclusion … were believed by the [enacting] delegates to be more frequently committed by blacks”). 6. See, for example, Griggs v. Duke Power Company, 401 U.S. 424, 432 (1970) (striking down facially neutral employment tests that had the effect of disproportionately excluding African Americans). 7. See, for example, Mississippi University for Women v. Hogan, 458 U.S. 718, 725 (1982) (declaring unconstitutional the state government's support of an all-female nursing school because it expressed the demeaning judgment that women “are presumed to suffer from an inherent handicap” that equips them uniquely for the stereotypically female vocation of nursing). 8. Michael Christian Belli (2003), “The Constitutionality of the ‘Men Who Have Sex with Men’ Blood Donor Exclusion Policy,” Journal of Law and Society 4: 315, 368. A Harvard Law School initiative call Bloodsense.org maintains that state actors adopted the policy out of “discrimination rather than science, scapegoating rather than equality, paranoia rather than dignity.” 9. See Doe v. American National Red Cross, 866 F. Supp. 242, 246–247 (D. Md. 1994); Ronald Bayer (1989), Private Acts, Social Consequences, 82–83. New York, NY: Free Press.; Johanna Pindyck (1986), “The Gift of Blood: Social Policy in Evolution,” in Michael D. Witt, ed., AIDS and Patient Management, 150, 151. Owing Mills, MD: National Health Publishing. The organization then called the National Gay Task Force is now called the National Gay & Lesbian Task Force. 10. See Marie McCullough (1995), “After His Rejection, Gay Man Challenges Blood-Donor Policy,” Philadelphia Inquirer, April 29 at B3 (quoting college student: “I have never been openly discriminated to my face like that before and I have never cried as hard as I did when I returned to my room after trying to give blood”). 11. I have discussed the concept of discriminatory expression in the context of racial classification in sperm donor catalogs, disability-selective abortion, and adolescent height enhancement. See Fox, supra note, at 1864–1868. See also Dov Fox and Christopher L. Griffin, Jr. (2009), “The Americans with Disabilities Act and Disability-Selective Abortion,” Utah Law Review 2009(3): 845, 853–859; Dov Fox (2004–2005), “Human Growth Hormone and the Measure of Man,” New Atlantis, pp. 75, 80. 12. See Randy Shilts (1987), And the Band Played On: Politics, People, and the AIDS Epidemic, 326–327; Russell K. Robinson (2009), “Racing the Closet,” Stanford Law Review, 63(6): 1463, 1499, 1514–1515; Linda Singer (1989), “Bodies—Pleasures—Powers,” Differences 1(1): 44, 65; Policy Resolution, Gay and Lesbian Medical Association (2001), “Urge FDA to Revise Blood Giving Guidelines,” October 25, 1997, revised May 20, 2001, available at http://www.glma.org. 13. Those who are turned away by blood collection agencies need not internalize the policy's meaning or lose a sense of self-worth for the donor exclusion to embody discriminatory expression.