The PrEP Penalty

75 Pages Posted: 22 Mar 2021 Last revised: 8 Apr 2022

Date Written: March 19, 2021

Abstract

Pre-exposure prophylaxis, or PrEP, is a novel treatment shown to be highly effective in preventing HIV infection. Although the treatment signals a new dawn in eliminating HIV/AIDS, this Article exposes the paradoxical legal treatment of PrEP. On one hand, PrEP use 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, largely sexually active gay men, from donating blood through a legal policy known as the “blood ban.” This Article foregrounds how PrEP stigma, which connects the treatment with promiscuity, affects the implementation of and compliance with the blood ban.

The Article uses an innovative experimental study to demonstrate counterintuitive and illogical responses to gay mens’ use of PrEP. Participants in the study were more reluctant to accept blood from a potential gay donor who takes PrEP, or to change the policy to allow him to donate, compared with a gay donor who is not taking PrEP. This PrEP penalty applied only to gay donors: participants were more inclined to accept a blood donation from a straight donor on PrEP. Concerning family status, participants were more reluctant to receive blood from gay fathers on PrEP than from gay fathers not on PrEP.

The findings demonstrate how decisions related to public health, on the structural and individual levels, are colored by moral judgment. This is detrimental not only to LGBTQ individuals but also to society as a whole. The law’s paradoxical treatment of PrEP impedes major public health projects: fighting chronic blood scarcity, increasing the pool of donors who could give antibodies in times of a pandemic, and eliminating HIV. Building on these findings, I offer normative avenues to eliminate PrEP stigma and further public health goals.

The Article makes four original contributions. First, although some literature discusses how PrEP stigma exists within the LGBTQ community, I demonstrate empirically for the first time how stigma around PrEP extends to the public at large, jeopardizing efforts to implement effective public health policies. Second, the Article introduces a process I call the “demedicalization of preventative measures.” Demedicalization refers to the ways in which legal discourse strips away the public health benefits of medical treatment and shifts focus to the patients’ individual behavior. Third, the Article provides a site for examining the theoretical and practical implications for the expressive function of the law, the ways in which it constructs identities and shapes common understandings regarding sexual minorities, in the area of public health law. Finally, the Article builds upon and unites seemingly disparate threads within family law, public health law, and law and sexuality by advancing empirical knowledge and understanding of the social meanings of same-sex marriage, parenthood, and queer families in the post-Obergefell-era. It shows how public perceptions of morality and trustworthiness influence public views of who can participate in the “civic ritual of blood donation” vis-à-vis not only use of PrEP but also a gay man’s familial status.

Keywords: FDA Law; Public Health Law; HIV Prevention; PrEP; Blood Donation Policy; Family Law; Law & Sexuality; Experimental Jurisprudence; Law & Psychology; Empirical Legal Studies

Suggested Citation

Dorfman, Doron, The PrEP Penalty (March 19, 2021). 63 Boston College Law Review 813 (2022), Available at SSRN: https://ssrn.com/abstract=3808234 or http://dx.doi.org/10.2139/ssrn.3808234

Doron Dorfman (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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