Pre-exposure prophylaxis, or PrEP, is a novel treatment shown to be highly effective in preventing HIV infection. Although this preventive measure signals a new dawn in eliminating HIV/AIDS, this Article exposes the paradoxical legal treatment of PrEP. On one hand, PrEP has been approved by the FDA, endorsed by the CDC, and promoted through financial incentives in the Affordable Care Act. On the other, the FDA restricts PrEP users, predominately sexually active gay men, from donating blood through a legal policy known as the “blood ban.” This Article uses an innovative experimental study to demonstrate counterintuitive and illogical responses to gay men’s use of PrEP. Study participants were found to be more reluctant to accept blood from a potential gay donor taking PrEP, or to change the FDA policy to allow that donor to donate blood, as compared with a gay donor not taking PrEP. Likewise, participants were more reluctant to receive blood from gay fathers on PrEP than from gay fathers not on PrEP. This PrEP penalty applied only to gay donors; participants were more inclined to accept a blood donation from a straight donor on PrEP compared with any gay donor.
The findings demonstrate how decisions related to public health, on the structural and individual levels, are colored by moral judgment. They show how legal discourse strips away the public health benefits of medical treatment and shifts focus to the patient’s individual behavior, a process I call “the demedicalization of preventive measures.” The findings also contribute to the understanding of the expressive function of the law, meaning the ways in which the law constructs identities and how it shapes common understandings about sexual minorities in the area of public health. Furthermore, the findings advance empirical knowledge and understanding of the social meanings of same-sex marriage, parenthood, and queer families post-Obergefell v. Hodges.
Public perceptions of morality and trustworthiness result in the penalization of PrEP use to the detriment of both LGBTQ individuals and society as a whole. Stigmatized attitudes hamper major public health projects, including fighting chronic blood scarcity, increasing the pool of donors that could give antibodies during a pandemic, and eliminating HIV. Expanding upon the findings from this experimental study, I offer normative avenues to eliminate PrEP stigma and further public health goals, arguing for reforming FDA policy to specifically allow PrEP users to give blood and, ultimately, for completely abolishing the blood ban.
Doron Dorfman, The PrEP Penalty, 63 B.C. L. Rev. 813 (2022), https://lawdigitalcommons.bc.edu/bclr/vol63/iss3/3