Using the Equal Protection Clause to Establish a Right to Choose Proves too Much Part #1

I want to address the abortion-health exception that exists in the current law and exception’s relationship to the equal protection clause. I have posted a variation of the following argument on the comment boards of a couple of different blogs.

“…We do not normally require health exceptions to our laws as a matter of constitutional right. What if the FDA bans one type of drug only used to fight prostate cancer. If my doctor and I believe that I must use that drug in order to fight my prostate cancer, does that mean that the equal protection clause grants me a constitutional right to that drug?”

Now let me start by pointing out what the hypothetical does not address. It does not address the due process clause based health exception. I am centering only on the equal protection justification for abortion that seems to be advocated by Justice Ginsberg [see below].

If we assume that abortion regulations create classifications on the basis of sex; then regulations of prostate cancer are also create classifications on the basis of sex. Laws creating sexual classifications are subject to intermediate scrutiny. For a law to survive intermediate scrutiny that law must be substantially related to the achievement of an important governmental objective. The important government objective at issue with the D&E ban is Congresses’ moral objection to an inhumane way of ending potential life. There could be any number of important government objectives for banning a given drug; lets assume that Congress believes that the prostate drug in question is dangerous and Congress is acting to protect consumers.

Demonstrating a substantial relationship between a medical regulation and an important government interest requires the court to examine the validity of whatever medical evidence Congress used when passing the law. Now here is the rub, what makes the Court more qualified then Congress to rule on the medical issues relating to D&E or the use of a given prostate drug?