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August 15, 2008

Although law is repealed,
HIV travel ban is still there

Washington, D.C.--With a stroke of a pen on July 30, President Bush ended a 21-year-old ban on people with HIV and AIDS entering the U.S. The repeal was part of a bill providing $50 billion to deal with the pandemic in developing countries, mostly on the African continent.

However, HIV-positive people seeking entry into the U.S. will not see things change any time soon.

The provision in the President’s Emergency Plan for AIDS Relief repealed a 1993 ban that Congress had added to the Immigration and Nationality Act of 1952.

Congress enacted the ban into law after then-Health and Human Services secretaries Louis Sullivan and Donna Shalala tried to remove it from HHS regulations, following lengthy public health analyses.

Although the law is now gone, the ban remains in the HHS regulations. These are not likely to change until well into 2010, according to Victoria Neilson, legal director of Immigration Equality, one of the groups that fought the ban.

Under the 1952 act, the HHS secretary has the authority to determine which communicable diseases are barred from U.S. entry. HIV was added to this list in 1987, and needs to be removed to lift the ban.

But changing federal regulations can be a lengthy process that involves notification of proposed changes, hearings, public comment, and creating replacement regulations.

Further, White House Chief of Staff Joshua Bolten ordered that all changes be proposed before June 1, and that agencies should “resist the historical tendency of administrations to increase regulatory activity in their final months.”

When he signed the bill, Bush spoke about the work that will be done around the world with the $50 billion, but was silent about the repeal of the ban.

If the administration fails to change the regulations before leaving office in January 2009, the process will start anew under the next administration.

Senator Barack Obama favors lifting the ban. Senator John McCain’s position is unclear.

“This was the brick wall that had to come down before anything else could happen,” Neilson said of the law’s repeal. “Now it’s time to put the pressure on HHS.”

An HHS secretary who wants to keep the regulatory ban in place could do it by holding up progress or by finding that people with HIV pose a threat to the population in a manner similar to people with tuberculosis.

Currently, there is also no change in the rules for getting special permission for HIV-positive people to enter the U.S. This was done in the past for such events as the Winter Olympics in Salt Lake City, the United Nations General Assembly Special Session on HIV and AIDS, various Metropolitan Community Church events, and the 2006 Gay Games in Chicago, according to the Federal Register.

However, these waivers have been granted somewhat capriciously and are very difficult to get.

Only a dozen other countries bar visitors with HIV or AIDS. They are Armenia, Brunei, China, Iraq, Libya, Moldova, Oman, Qatar, Russia, Saudi Arabia, South Korea and Sudan.


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