A false advertising case against an abortion clinic in Fargo, N.D.,
which was argued in state district court yesterday, could effectively
render Roe v. Wade meaningless, according to legal experts.
The case hinges on whether the following statement contained in a
pamphlet from the
Red River Women’s Clinic is true: “Anti-abortion activists claim that having an abortion increases the risk of breast cancer and endangers future child-bearing. None of these claims are supported by medical research or established medical organizations.”
|The Red River Women’s Health Clinic in Fargo, N.D. is being sued for “false advertisement” for claiming there is no scientific research establishing an abortion-breast cancer link.|
Abortion protester and “sidewalk counselor” Amy Jo Mattson saw the pamphlet last year and sued the clinic for false advertising, saying scientific evidence does exist linking abortion and breast cancer. She is represented by attorney John Kindley, who wrote a widely-read
Wisconsin Law Review article on the legal connection between informed consent laws and scientific evidence of a link between abortion and breast cancer.
At issue now in court is the validity of such studies. Activists on both sides of the abortion debate have hotly contested each other’s studies on the matter, attacking the scientific credibility of research methodology and conclusions.
It is widely held among physicians and scientists acknowledging what is known as an “ABC link” (abortion-breast cancer link) that 26 out of 32 published studies on the subject worldwide and 12 out of 13 studies in the United States support the claim.
Dr. Joel Brind, a professor of biology and endocrinology at Baruch College of the City University of New York and perhaps the most well-known ABC link researcher in the U.S., explained the theory behind the association.
|Dr. Joel Brind published a “Comprehensive Review and Meta-analysis” on the ABC link in the British Medical Association’s Journal of Epidemiology and Community Health.|
Breast cancer is linked to reproductive hormones, particularly estrogen. Although science has yet to define specifically what causes breast cancer, it is uncontested that the sooner a woman has her first child, the lower her risk of developing breast cancer.
At conception, a woman’s estrogen levels increase hundreds of times above normal and one of the first physical changes to the pregnant woman’s body occurs in the breasts. That hormone surge leads to the growth of “undifferentiated” cells in the breast as the body prepares to produce milk for the coming baby. Undifferentiated cells are vulnerable to the effects of carcinogens, which can give rise to cancerous tumors later in life.
In the final weeks of a full-term pregnancy, those cells are “terminally differentiated” through a still largely unknown process and are ready to produce milk. Differentiated cells are not as vulnerable to carcinogens.
However, should a pregnancy be terminated prior to cell differentiation, the woman is left with abnormally high numbers of undifferentiated cells, therefore increasing her risk of developing breast cancer.
The percentage of cancer risk increase is dependent on the age of the woman when she reaches puberty, when she first conceives and the length of time the pregnancy progresses prior to induced abortion. Most studies show a general risk increase from 30-100 percent or more.
Spontaneous abortions, or miscarriages, are not generally associated with increased risk, according to Brind, since they generally occur due to insufficient estrogen hormones to begin with.
“Undaunted by the absence of compelling evidence associating induced abortion with a woman’s risk of developing breast cancer, anti-choice extremists insist on making the connection anyway,” says Planned Parenthood
on its website.
“Once more they are using misinformation as a weapon in their campaign against safe, legal abortion. In the guise of an ostensible concern for women’s health, these ideologues point to inconclusive, and at times flawed, studies for alleged evidence of a possible association, while ignoring or dismissing overwhelming evidence that induced abortion does not place women at greater risk of breast cancer,” the statement continues. “Neither the National Cancer Institute nor the American Cancer Society recognizes the reliability of such an association.”
Planned Parenthood notes that approximately 25 studies have examined the risk of developing breast cancer for women who have had abortions.
“Cancer researchers at the National Cancer Institute, the American Cancer Society, and major universities say that the most reliable studies show no increased risk, and they consider the entire body of research inconclusive,” the organization states.
Planned Parenthood points to several studies, including one from 1994 that was published in the Journal of the National Cancer Institute. It was a case-control study of 845 women in Washington State who were diagnosed with breast cancer from 1983 through 1990 and of 961 controls.
“The study found that among women who had been pregnant at least once, the risk of breast cancer in those who had experienced an induced abortion was 50 percent higher than among other women. Highest risks were observed when the abortion was done at ages younger than 18. No increased risk was associated with a spontaneous abortion,” says Planned Parenthood’s website.
“However, the study was relatively small, lacked objective measures for establishing pregnancy duration, and was susceptible to reporting bias, since a breast cancer diagnosis may influence a woman’s recall or disclosure of her reproductive history,” it continues.
The issue of “reporting bias” has been used by critics of an ABC link for decades, the basic premise being that women with breast cancer may say they have had an abortion when they had not.
According to Karen Malec, director of the
Abortion/Breast Cancer, Swedish researcher Olaf Meirik first developed the concept of “reporting bias” when seven of the women he observed claimed to have had abortions when computer health records indicated they had not.
Because the “phantom” abortions had not been reported, Meirik concluded the women were incorrectly recalling their own medical histories.
“I just cannot fathom that women could fabricate having had an abortion. They remember something like that,” said Malec. “The allegation that the computer says a woman had an abortion and she didn’t have an abortion, or vice versa, is just ridiculous,” she continued.
“That’s offensive to women,” she added. “Having an abortion is an impact for her emotionally.”
Nevertheless, Planned Parenthood refers to “reporting bias” as a weakness in ABC link studies, and makes the following declaration: “The Planned Parenthood position is that abortion poses no demonstrated health risks.”
“The link between induced abortion and breast cancer is a theory whose principal promoters oppose abortion regardless of its safety,” the group continues. “The theory has not been borne out by research. While Planned Parenthood believes that women should have access to information about all factors that influence the risk of disease, [Planned Parenthood] also believes that women deserve information that is medically substantiated and untainted by a political agenda. Because the research community has not reached a consensus on breast cancer and abortion, Planned Parenthood advises women who are considering terminating a pregnancy that there is no currently demonstrated health risk from abortion that would warrant basing a decision on that factor alone.”
NARAL, a fierce advocate for legalized abortion and other reproductive issues, echoes Planned Parenthood’s position,
its website: “NARAL believes that women must have access to scientifically accurate and unbiased health information. Presently, anti-choice groups are distorting scientific data and manipulating information to advance their political agenda.”
But “political agenda” is precisely what ABC link proponents say is preventing women from being informed about the research.
“There is enormous political capital invested in the idea of safe abortion, and this flies in the face of safe abortion,” said Brind. “Once one acknowledges that abortion significantly increases the risk of breast cancer, then one has to acknowledge that abortion is much more dangerous than childbirth.”
American Medical Association cites the risk of dying in childbirth as 6 per 100,000, Brind noted. But for abortion, the risk is only 0.5 per 100,000.
“You do the math. Abortion is 12 times safer than childbirth,” he continued. “There goes one of the pillars of safe abortion. It exposes the soft underbelly. ‘Big abortion’ is fighting this harder than they fight any other fight about abortion. I think they perceive it as the undoing of legalized abortion.”
And it may be, according to attorney Scott Somerville, author of the book, “Before you choose: The link between abortion and breast cancer.”
“Although political activists talk about a ‘woman’s right to choose,’ the Supreme Court based its decision in Roe v. Wade on a medical assumption rather than a right to autonomy,” Somerville explained. “The court assumed that abortion was safer than a live birth and ruled that states could not force a woman to do something that was more dangerous than the alternative. Thus all those states are completely free to regulate medical procedures in order to protect the health of the patient — they have no power to regulate medicine in order to enforce morality. A real cancer risk from abortion would render Roe v. Wade moot. It would completely undercut the constitutional holding of Roe v. Wade and the abortion-rights activists know this.”
If the judge in the North Dakota case rules that the Red River Women’s Clinic did indeed commit false advertising by saying no evidence of an ABC link exists, he will effectively be calling the studies reliable. At that point, said Somerville, the state’s
Control Act kicks in, which is found in the state’s Century Code beginning at Section 14-02.1. The Act grants $10,000 and triple the amount of actual damages to women who were not provided with enough information to grant “informed consent” for an abortion.
For example, since an increased risk of developing breast cancer could be reasonably assumed, a woman claiming lack of informed consent could demand triple the cost of a lifetime of mammograms.
The legal complaint filed by Kindley does not ask for any monetary damages — merely a cessation of the pamphlet’s distribution and some form of disclosure about the risks of breast cancer as associated with induced abortion.
Somerville compares the case to the tobacco industry lawsuits, about which anti-smoking advocates say knowledge of increased cancer risks will deter people from smoking. The connection between smoking and cancer was made, yet, “a lot of people are still smoking cigarettes,” he said. “[Smokers] have already demonstrated that ‘the threat of cancer is not going to influence my decision.’”
Likewise, knowledge of an increased risk of breast cancer from induced abortion may not decrease the demand for abortions, he implied.
Nevertheless, just as lawsuits against the tobacco companies have had tremendous financial consequences for the industry, the North Dakota lawsuit could have devastating financial ramifications for abortion providers.
|The Fargo Women’s Health Clinic was formerly administered by the current owner of the Red River clinic, which is being sued for false advertising.|
Jane Bovard, owner of the Red River Women’s Clinic, is the former administrator of the Fargo Women’s Health Clinic. Red River was closed yesterday afternoon, ostensibly due to the court proceedings.
Horab, who attended the deliberations yesterday as an observer, wondered “which study the judge is going to feel holds more water.” Each side attacked the basis of each others’ studies in court, she said.
The judge agreed to allow the case to come to trial “in the very near future,” Horab said, but denied Kindley’s request that the pamphlets cease to be distributed.
“I’m just surprised that it gets this far,” she added, calling the Red River suit “frivolous.”
“Of course, I have a vested interest in this. I’m very one-sided about it.”
The clinic administrator fears abortion providers may be forced either to dispense information they deem is irrelevant or withhold information they believe should be discussed.
Horab stopped herself after referring to opponents of abortion as “pro-life.”
“I hate that term,” she mumbled, preferring to use the term “anti-choice.”
When asked about the ramifications of a decision in favor of the plaintiff, Horab indicated that, in North Dakota, informed consent items are listed by the state and given to clinics. An ABC link is not included on that list, which is found in the Abortion Control Act, so clinics may not be held responsible, she speculated.
Brind believes the issues surrounding a possible ABC link, including the Red River case, further define parties in the abortion debate.
“This issue really draws a bright line between pro-choice and pro-abortion,” he said. “This issue could not have advanced as far as it has … if it didn’t have the support of prominent pro-choice scientists and doctors.”
Pro-choice advocates believe they “don’t have the right to tell a woman what to do, but a woman has the right to know what the risks are,” he explained. It’s the “abortion enthusiasts” that are “fighting this tooth and nail.”
“Women’s health is the issue, not abortion,” he concluded. “What gives anybody the right to use women or any patients of any medical procedure as pawns in a political battle, whether it be to preserve the reputation of ‘safe abortion’ or anything else?”