Soucek on a Religious Exemption Challenge to the FDA Prohibition on Gay Men Donating Blood

Brian Soucek (University of California, Davis – School of Law) has posted The Case of the Religious Gay Blood Donor (William & Mary Law Review, Forthcoming) on SSRN.  Here is the abstract: The Food and Drug Administration prohibits sexually active gay men from donating blood. This essay envisions an original legal challenge to that rule: not the predictable equal protection suit, but a religious freedom claim brought by a gay man who wants to give blood as an act of charity. Because the FDA’s regulations substantially burden his exercise of religion—requiring a year of celibacy as its price—the FDA would be forced to show that its policy is the least restrictive means of preventing HIV transmission through the blood supply. Developments in testing technology and the experience of other countries suggest that this would be hard to prove.A lawsuit like this would either produce a major victory for gay rights or, as likely, would force courts…

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