In Arizona, the state’s top court reinstated an 1864 Civil War era law that bans virtually all abortions. The Arizona Supreme Court has seven MAGA judges, all appointed by Republican governors.
The 1864 law they reinstated was passed by a territorial government and predates Arizona’s statehood by 48 years. As a result of this ruling, doctors will face fines and criminal penalties if they assist a woman in terminating a pregnancy. The law makes no exceptions for rape, incest, or fetal abnormalities and only permits an abortion if the mother’s life is in jeopardy. Republicans in the Arizona state legislation have been blocking repeal of the law.
Enforcement of another antiquated law from the distant past is now being considered by the MAGA majority judges on the United States Supreme Court. MAGA men better beware. Depending on how Clarence Thomas, Samuel Alito, John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett interpret the Comstock law, delivery of erectile dysfunction medication via the mails could be banned.
The case in question is Alliance for Hippocratic Medicine v. FDA. Anti-abortion advocates are challenging the Food and Drug Administration’s' approval medicated abortion drugs. More than half of all abortions in the United States are by medications like mifepristone. In April 2023, a Texas district judge ruled that the Comstock law made mailing of abortifacients illegal. The Supreme Court heard the case in March 2024 and a decision is expected in June. In preliminary discussion before the Supreme Court, Alito said Comstock should be considered a “prominent provision” and not an “obscure section of a complicated obscure law.”
In 1873, while Ulysses Grant was President, Congress passed the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. The law defined contraceptives as obscene and illicit, making it a federal offense to disseminate birth control through the mail or across state lines. The law is generally known as the Comstock Act because moral crusader Anthony Comstock was the driving force behind the act.
The law has been revised a number of times. Its current iteration is 18 U.S. Code § 1461 - Mailing obscene or crime-inciting matter. It bans mailing “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” Anyone who mails material that could be used for immoral acts such as sex outside of marriage, sex for pay, or sex with a person legally married to someone else, or maybe just sex, is “subject to shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.”
Erectile dysfunction medication is used to help men have sexual intercourse who are unable to have or keep an erection firm enough for sex. Risk factors that contribute to erectile dysfunction include diabetes, heart conditions, tobacco use, obesity, and drug and alcohol abuse. Almost twenty percent of American men age 20 and older, about 18 million men, suffer from erectile dysfunction. The condition worsens as you age and affects almost three-fourths of men over 70 who are sexually active.
In every state except Nevada prostitution is illegal. Adultery is a felony in Oklahoma, Michigan, and Wisconsin and a misdemeanor in fourteen other states. New York State is now considering repealing its anti-adultery law. In October 2023, Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas had laws criminalizing consensual sodomy including oral and anal sex and masturbation. People committing unpermitted sexual acts cannot currently be prosecuted because of a 2003 Supreme Court decision in Lawrence v. Texas. However state and local governments can still consider criminal mailing medication like Viagra or Cialis that makes these acts possible.
The Justice Department under President Joe Biden argues that the Comstock Act’s provisions do not apply to drugs used for lawful abortions or by extension for erectile disfunction drugs that aid in sexual intercourse. But groups like the Heritage Foundation are pushing for enforcement of Comstock and if Donald Trump or another rightwing Republican is elected President, the Justice Department could reverse its position and start banning the mailing of abortion and sexual enhancement medications.
MAGA men might want to reconsider who to support before they vote in November.