Dan O'Neill

The Ins and Outs of the HIV Travel and Immigration Ban

Filed By Dan O'Neill | July 03, 2009 10:30 AM | comments

Filed in: Living, Politics, Politics

On Friday, June 26, at the behest of the Office of Management and Budget (see announcement), the Centers for Disease Control and Prevention (CDC) was asked to proceed with publication in the Federal Register of the long-anticipated rule to lift the HIV travel and immigration ban. This move marks the next-to-final step in removing this decades-old, discriminatory prohibition placed on HIV-positive individuals.


Be sure to see Steve Ralls' excellent Bilerico post on lifting the ban, which includes a video on the topic by Immigration Equality.

A Little History on the HIV Entry Ban

In May 1987, the U.S. Department of Health and Human Services (HHS)/CDC added HIV infection to its list of "communicable diseases of public health significance," effectively barring such individuals from entering the United States, except under certain instances in which discretionary waivers were issued. This decision was made in a climate of fear and uncertainty, surrounding a highly stigmatized disease.

Perversely, the ban has only served to perpetuate this stigma for 22 years, long after the science has shown that HIV is not a threat to the public's health and would not substantially burden our healthcare system. However, the new HHS rule finally puts these unfounded concerns to rest, removing previous barriers to to treatment and prevention:

While HIV infection is a serious health condition, it does not represent a communicable disease that is a significant threat for introduction, transmission, and spread to the US population through casual contact.

Despite knowing this obvious fact for decades, the United States remained one of only twelve countries to have long-enforced such a strict, unscientific and ineffective policy, undermining its position as a global leader in combating HIV/AIDS. In supporting such a discriminatory and antiquated restriction, the United States has placed itself among the ranks of other bastions of civil liberty - including Sudan, Saudi Arabia, Lybia, Russia, Moldova, Oman and Qatar, among others. Moreover, the ban has forced illegal aliens into hiding, preventing them from seeking necessary care and treatment for HIV, thereby hastening further spread of the disease. Also, as long as the ban has been in place, the International AIDS Society has been unable to have the United States host the biannual International AIDS Conference, losing out on a tremendous opportunity to raise awareness in our country.

The HIV entry ban is an excellent example of why the time is now ripe for us to take full advantage of this window of opportunity to secure our LGBT rights. At the beginning of the Clinton Administration, HHS had already sought to have this HIV entry ban eliminated (in 1991), but failed. When attempts were made a second time in 1993, conservative members of Congress - spearheaded by then Republican Senators Don Nickles of Oklahoma and Jesse Helms of North Carolina - sought not only to defeat these attempts, but also to codify the ban into federal law by including it in the National Institutes of Health Revitalization Act.

As such, for fifteen years this regulation has been enforced both through statutory law and administrative mandate. Then, in July 2008, with the first reauthorization of PEPFAR (known as the Tom Lantos and Henry J. Hyde Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act), the Congressional ban was legally rescinded - largely due to the efforts of Senator John Kerry (D-MA), Representative Barbara Lee (D-CA) and former Senator Gordon Smith (D-OR). However, despite the monumental achievement of removing this huge barrier, the administrative mandate still remained in place.

On June 2, there was a glimmer of hope when Rep. Barbara Lee posed a question about the HIV entry ban to the new HHS Secretary, Kathleen Sebelius, at her first appearance before the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies.

When pressed by Rep. Lee as to when she intended to lift the HIV travel and immigration ban, the Secretary responded, "It is on my radar screen, and will happen soon." Ugh... more waiting, I thought. It seemed so simple; so why the hold up?

Well, turns out it's not so simple. But at least much of the waiting appears to be over and an end to the ban is finally in sight. We just need to make sure that the rule makes it through the home stretch. I can't emphasize this point enough.

Just today, a Washington Post article revealed that President Obama may partially renege on his plan to rescind President Bush's "right to refuse" rule, now claiming he supports the so-called "conscience clause," which broadly allows providers to refrain from any procedure involving a person or situation they find morally reprehensible. This rule could mean that if a physician at a Catholic hospital, not receiving federal funds, doesn't want to treat you because you're gay or transgendered, you're out of luck. The debate has often been framed in terms of abortion; however, the vague language used in Bush's rule leaves it vulnerable to abuse by providers who would deny care because their patient doesn't conform to their moral codes.

In truth, this could just be posturing prior to Obama's meeting with the pope next week, or it might mean actual waffling by the administration on the rule's "conscience clause."

So what happened?

Well, we sat on our haunches and went into autopilot. Meanwhile the revision to the Bush's "right to refuse" rule was published in the Federal Register in February for public comment. We counted on Obama to swing home and knock the rule out of the park; but we didn't tee it up for him as best we could. And now we're kicking ourselves. So let's hope he doesn't back away entirely from rescinding the "right to refuse" rule and make sure this doesn't happen again with the HIV entry ban.

An Initial Stumbling Block Averted

The efforts to finally seal the deal on lifting the HIV entry ban hit a potential snag on Tuesday, June 30, when the CDC inadvertently made available an incomplete version of the rule, that fortunately did not make it into the Federal Register. The incomplete rule was quickly retracted and replaced with the final, corrected version in the Federal Register on July 2.

Although the problem was quickly resolved, the incident gave a glimpse at the inner machinations of the CDC and drew attention to some the more contentious components of the rule that differed between the current and past administrations - namely that the previously proposed cost estimates for lifting the ban were way too high.

Although the public may criticize the Obama Administration for dragging its heels on lifting the ban, there is actually a good reason for this delay, made apparent by Tuesday's snafu in prematurely releasing the incomplete rule. After Congress reauthorized PEPFAR legislation last summer, which both removed the legal barrier to lift the ban and appropriated funds to cover the cost of this action, the CDC, under the Bush administration, allegedly busied themselves with drafting a new rule to finish the job.

However, it is speculated that upon its completion, the rule did not pass initial review by the OMB due to problems with its cost estimates and other issues, such as the precondition for individuals to take a HIV test prior to receiving an American visa.

Requiring people to take a HIV test in their home countries, even if a positive result could no longer obstruct their entry into the United States, may put such individuals at risk for discrimination abroad, as confidentiality around such tests varies greatly throughout the world.

However, all of these issues were addressed in the final version now posted. Phew! Let's be sure it stays that way.

The Remaining Timeline for Lifting the Ban

The official publication of the rule on July 2 in the Federal Register will remain for a 45-day mandatory public comment period. After that time, there will be another round of review by OMB and the CDC before the final version is published in the Federal Register. At that point, an effective date for the new rule will be established sometime between 1-2 months after its final publication.

Rachel B. Tiven, Executive Director of Immigration Equality, which helped trail-blaze the effort to lift the ban, has encouraged swift action by the CDC to move this process through its final stages. In an effort to streamline the comment process and garner support of the regulations, Immigration Equality has launched an online petition to allow the public to collectively endorse the new rule and help move repeal forward as quickly as possible.

In sum, Rebecca Haag, the Executive Director of AIDS Action Council says:

Barring entry of people living with HIV/AIDS is a blatant violation of their human rights. The current policy adds to HIV stigmatization and discrimination against people with HIV/AIDS. Ending this policy and practice is overdue. We strongly support the Obama administration's efforts to correct this wrong. AIDS Action Council, along with many community advocates, has fought long and hard to change this policy, and it is a tribute to the determination of the HIV/AIDS community and our Congressional allies that this day finally has arrived.

I couldn't agree more. Now is the time to act to put an end to this ban! Let us not be complacent and silent on this issue.

Public comments may be submitted directly to the Federal Register in the following three ways:

  • Written comments may be sent electronically at the following URL: http://regulations.gov;
  • you may email them to: Part34HIVcomments@cdc.gov; or
  • you may submit written comments, identified by Docket No. CDC-2008-0001 to the following address:
Division of Global Migration and Quarantine,
Centers for Disease Control and Prevention,
U.S. Department of Health and Human Services,
ATTN: Part 34 NPRM Comments,
1600 Clifton Road, N.E., MS E-03,
Atlanta, Georgia, 30333

To view public comments and other related topics on this matter, visit the CDC website at: http://www.cdc.gov/ncidod/dq/laws_regs/fed_reg/remove-hiv/index_hiv.htm

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