Sigh. Now the AP is picking up the story and talking about how it's going on in several states. When it was just New York, it got plenty of coverage, including in The Week, whose synopsis I reprint here:

Paroled rapists and child molesters have been getting free Viagra under New York state's Medicaid program. Prescriptions for the erectile-dysfunction drug have been filled, at taxpayer expense, for at least 198 sexual predators classified as having a high risk of committing another sexual assault. "Giving convicted sex offenders government-funded Viagra," said Sen. Charles Schumer (D-N.Y.), "is like giving convicted murderers an assault rifle when they get out of jail."

Well, first, no it's not, because we already ban murderers from owning or even possessing rifles or other firearms "when they get out of jail." You can't ban a man from owning or possessing an erection, though folks like Oklahoma's state Sen. Frank Shurden (D-Henryetta) have certainly tried to get government into the amputation business.

Second, for those like Sen. Schumer who don't seem to understand the 14th Amendment and its guarantee of "equal protection," here's a brief primer. Medicaid pays for Viagra because the government has decided that erectile dysfunction is a medical problem, and that Viagra is a viable, approved treatment for it. According to the Cornell Law School, "The laws of a state must treat an individual in the same manner as others in similar conditions and circumstances."

In other words, if E.D. is a medical condition, the state can't deny treatment for it simply because some people who suffer from it have done bad things with their peckers in the past.

If this seems shocking to you, get over it. Think about it this way - if a released sex offender is so dangerous that the public is only safe as long as he has erectile dysfunction, that person should not be on the streets. New York does not have one of those laws that lets the state keep a sex offender in prison without being able to prove he (or she) is dangerous, but the governor badly wants one. The state can already commit anyone that it can prove is dangerous to himself or to the public. Either way, the state can't stop any ex-felon (regardless of offense) from getting a legitimate prescription for Viagra and paying for it himself, just as it can't stop ex-drunk drivers from drinking altogether.

You may be thinking, "But wait, they can bar ex-felons from having guns, you just said so." That's true. When can the state discriminate against one group of people? Back to the Cornell Law School:

[The US Supreme Court] will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate.

Well, gee, a law designed to prevent only certain men from receiving what is otherwise regarded as a valid medical treatment because of past convictions is obviously intended to discriminate. Tell us more, lawyers:

Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.

The right to medical care has to be one of the "fundamental" rights, especially if New York is paying for tens of thousands of other men to get the same treatment. For such a law to stand, the state would have to show a compelling interest in keeping the state from paying for Viagra, even though the state doesn't have the authority to ban them from paying for their own Viagra. Good luck with that.

We've been told for decades that crimes like rape are crimes about power, not about arousal, so what would denying Viagra do to make things safer, anyway? An erection is not required for many sexual crimes, and it's certainly not required if the perpetrator is a female.

This is one of those stories that makes everyone outraged and leads to more of those "lock everyone up and throw away the key" laws that, in the end, always prove to be both unwise and cruel. The Allentown Morning Call has the right idea: if it's too dangerous to supply some people with Viagra for the same medical condition that thousands of others have, then why supply it to any of them? Some of the politicians in the AP article are asking the same question.

Most of the same politicians that want Medicare and Medicaid to deny treatment for women's reproductive choice procedures (from RU-486 to abortions) were perfectly happy in the 1990s to mandate that the federal government spend millions of dollars on Viagra. They'll make it harder for women to have consequence-free sex while making it easier for very old men to do the same.

Equal protection, anyone?