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Stop the Cover-up
Some Warning
for Women
Do physicians
have a duty to disclose material risks and the abortion-breast
cancer connection?
You can help stop
the cover-up
Stop the Cover-up
Women the world over are being denied a fundamental right:
To know the consequences of their choices, including their
reproductive choices. This includes the right to know that
induced abortion is the single most avoidable risk factor
for breast cancer.
Isn’t it about time that we stopped this patronizing
attitude toward women and let them make informed decisions
about what is best for them?
"Because abortion is so politically controversial,
many public health authorities would rather sweep this
critical information under the rug than give it to the
women who have the need—and the right—to
know it."
Joel Brind, Ph.D., President, Breast Cancer Prevention
Institute
Angela Lanfranchi, M.D., F.A.C.S., Vice president
Abortion has been referred to as the single most avoidable
risk for developing breast cancer responsible for a 30%
increased risk overall. There are several States in the
United States that require doctors to tell women about the
abortion breast cancer risk. Yet, Canadian women considering
abortion are not told about this risk by abortion providers.
The mainstream media, as well as cancer agencies also play
a role in withholding this vital information. LifeCanada
seeks to ensure that women are told before they agree to
have an abortion. Informed consent is a well established
principle of health care so why the silence?
"Some readers may consider that the calculation
made by Brind and colleagues of possible numbers of
breast cancers following - conceivably caused by - induced
abortion is alarmist. It is certainly true that a relative
risk of only 1.3 adds up to a large absolute increase
in risk with a very high prevalence of the underlying
factor. In light of recent unease about appropriate
but open communication of risks associated with oral
contraceptive pills, it will surely be agreed that open
discussion of risks is vital and must include the people
- in this case the women - concerned. I believe that
if you take a view (as I do), which is often called
'pro-choice', you need at the same time to have a view
which might be called 'pro-information', without excessive
paternalistic censorship (or interpretation) of the
data".
Donnan, Stuart. Abortion, Breast Cancer, and Impact
Factors - In this Number and the Last. Journal
of Epidemiology and Community Health. 1996; 50: 605.
On September 26, 2005, the National Post reported on its
front page that one study found that left-handed women have
a higher risk of developing breast cancer. Since only 9%
of women are left handed this applies to a very small percentage
of women. The researchers admitted that, “although
the underlying mechanisms remain elusive, our results support
the hypothesis that left-handedness is related to increased
risk of breast cancer”. They speculate “that
there is a shared origin early in life for both left-handedness
and breast cancer, possibly exposure to hormones in the
womb”. Seventy epidemiological studies dating back
to 1957 have reported on induced abortion and breast cancer,
and 80% of them show increased risk of breast cancer among
women who choose abortion. The biological explanation for
this association is related to estrogen’s cancer-causing
effects, and is undisputed; yet, the link between abortion
and breast cancer has never received such publicity.
Once a woman becomes pregnant, the hormone estradiol which
is a type of estrogen, causes a proliferation of cells in
the breast. These cells will differentiate and become milk
producing cells near the end of a normal pregnancy. However,
if the pregnancy is aborted, the woman is left with more
undifferentiated cancer-vulnerable cells than she had before
she was pregnant. The woman who chooses abortion also misses
out on the protective effects of a full-term pregnancy and
breast feeding, which are known to reduce breast cancer
risk. Women have a right to know this information so they
can protect themselves against this devastating disease.
Women who have already experienced abortion also have a
right to know, and should be encouraged to seek early and
regular breast screening.
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Some
Warnings for Women
Several U.S. states have enacted legislation regarding
informed consent in relation to induced abortion. In 2003,
the Texas legislature passed the “Women Right to Know
Act”. Under this law, a woman wishing to have an abortion
in Texas must certify in writing that she has been made
aware of all the risks associated with induced abortion,
including the “possibility of increased risk of breast
cancer following an induced abortion, and the natural protective
effect of a completed pregnancy in avoiding breast cancer”.
(see: Texas State Legislature. The Woman's Right to Know
Act. 2003. http://www.dshs.state.tx.us/wrtk/pdf/booklet.pdf
(3/9/05)
Other state health departments, including the Alaska Department
of Health and Social Services are considering similar warnings
on its website in keeping with their new informed consent
laws for abortion.
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Do physicians
have a duty to disclose material risks and the abortion-breast
cancer link?
The Supreme Court of Canada has clearly established that
under the common law, physicians have a duty, without being
questioned, to disclose to a patient the material risks
of a proposed procedure, its gravity, and any special or
unusual risks, including risks with a low probability of
occurrence, attendant upon the performance of the procedure:
Hopp v. Lepp, [1980] 2 S.C.R. 192, at pp. 195-96, 210, and
Reibl v. Hughes, [1980] 2 S.C.R. 880, at pp. 884-85; see
also Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 and Hollis
v. Dow Corning., [1995] 4 S.C.R. 634.
The test of what amounts to a material risk is wide, and
what needs to be disclosed is judged from the viewpoint
of the reasonable patient, not the physician, i.e., “what
a reasonable person in the patient’s position would
want to know of the risk” (1). Disclosure
of the risks is not limited to information that is generally
accepted, and a physician may, in fact, be held liable even
if he does not know of the risks that a “reasonable”
doctor would know about at that time. (2)
A risk which is a mere possibility ordinarily does not have
to be disclosed, but if its occurrence may result in serious
consequences, such as paralysis or even death, then it should
be treated as a material risk and should be disclosed. The
Canadian Cancer Society website estimates a 24.5% mortality
rate associated with breast cancer (3).
It has been suggested that 1 in 100 women who have had an
induced abortion die from breast cancer attributable to
the abortion. When the proposed procedure is categorized
as elective, as abortion is, then “even minimal risks
must be disclosed”. (4)
In the case of a perceived increased risk of breast cancer
as a result of a proposed abortion, it would appear that
this risk must be disclosed by the physician even if he
or she has a personal view that the risk is not “well-established”
in the medical literature. The duty is triggered if the
issue of a possible increased risk has been raised by credible
research. Because it is a disease that could cause the death
of the patient, it would appear to be beyond question that
an increased risk of contracting breast cancer is a grave
material risk that must be disclosed to the patient. Applying
the Supreme Court’s test, even if it were true that
the risk of breast cancer is only minimally increased by
an abortion (which is not admitted), the fact that the increased
risk exists must be disclosed by the physician.
To establish liability, however, a plaintiff must demonstrate
not just a breach of duty of disclosure by the physician,
but also that had the physician warned him or her of the
danger in question, the patient would have refused the operation.
This is a subjective test: Hollis.
Apart from the common law, most provinces have statutes
governing informed consent. In Ontario, a Health Practitioner
is required to obtain the patient’s “informed
consent” to the performance of any proposed medical
treatment: Health Care Consent Act, s. 10. It is beyond
question that an abortion is “medical treatment”.
“Informed consent” is defined in section 11
of the Act as follows:
Elements of consent
11. (1) The following are the elements required for consent
to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation
or fraud.
Informed consent
(2) A consent to treatment is informed if, before giving
it,
(a) the person received the information about the matters
set out in subsection (3) that a reasonable person in
the same circumstances would require in order to make
a decision about the treatment; and
(b) the person received responses to his or her requests
for additional information about those matters.
Same
(3) The matters referred to in subsection (2) are:
1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.
Note that clause 4 in subsection 11(3) of the Act essentially
codifies the common law requirement of prior disclosure
of all “material risks of the treatment” that
a reasonable person in the same circumstances would expect
to be disclosed.
Material on the issue of informed consent has been provided
by Geoff Cauchi, LL.B.
Legal Precedents
It is undisputed that a pregnant woman who chooses abortion
will have a higher long-term risk of developing breast cancer,
than if she chooses not to have an abortion. That is because
full-term pregnancy (i.e., a pregnancy that lasts at least
32 weeks) leaves a woman with breast tissue (lobules) which
have been matured during the third trimester (i.e., capable
of producing milk), and which are therefore cancer-resistant.
Therefore, she has fewer places for cancer to form in her
breasts than she had before she got pregnant.
Failure to warn women considering abortion about the undisputed
link between abortion and breast cancer violates any reasonable
standard of informed consent. That is why, in every instance
in which failure to warn about the abortion/breast cancer
in a medical malpractice claim, the plaintiff has won a
substantial settlement: one case in Australia in 2002 (settled
out of court), one in Philadelphia in 2003 (settled out
of court), and one in Portland, Oregon in 2005 (adjudicated
in favor of the plaintiff by the court when the plaintiff
admitted its liability and agreed to pay damages).
Andrew Schlafly, the General Legal Counsel for the American
Association of Physicians and Surgeons, directly warns members
of the association, “to save lives and guard against
possible lawsuits, physicians should warn of the link prior
to the operation and be vigilant in looking for breast cancer
in patients who have a medical history of abortion”.
(5) Canadian women deserve the equivalent
level of care and concern.
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You can help
stop the cover-up
Let politicians, those responsible for health care policy
and health care providers know that you would like to ensure
that women have access to all the facts so they can protect
their health and lives. To help you accomplish this task
we have provided a sample
letter and the names and addresses
of those who should be contacted at the national and provincial
levels. Feel free to use our letter or to write your own.
Sample letter
Dear
Abortion has been allowed in Canada since 1969 and has
been completely unrestricted since 1988. Almost all abortions
are paid for through the publicly funded health care system,
which means there are fairly accurate and complete records
of abortions for the past 30 years. (Even in the case of
private abortion clinics, most provinces pay the physician
fee and some pay the full cost.) We also have records for
women diagnosed and treated for breast cancer.
This means that we have an excellent database for research
on the link between breast cancer and abortion. Canadians
donate millions of dollars for cancer research and our governments
continue to invest in this area too. For over 50 years,
studies have shown an increased risk of breast cancer among
women who have had abortions. There are now over 50 such
studies yet we continue to publicly fund abortions without
warning women about this established link.
The Breast Cancer Society of Canada recently stated that
"Everyday breast cancer steals the lives of 15 Canadians.
70% of them have NO RISK FACTORS." The society does
not list abortion as a risk factor on its website. Nor do
any of the cancer prevention groups.
While many may question the findings or declare that the
research is “inconclusive,” 50 epidemiological
studies dating back to 1957 have reported data on induced
abortion and breast cancer. Approximately 80% of them show
increased risk of breast cancer among women who chose abortion.
Let us not ignore the issue. Informed consent is required
under common law and indeed most provinces have their own
statutes governing a physician’s duty to disclose.
It is imperative that Health Canada or any one of the cancer
research groups, in conjunction with all the provincial
health departments, should commission a study based on medical
records, to determine whether Canadian women who have had
abortions face a similar higher risk of developing breast
cancer.
Until such a study is completed, the precautionary principle,
as enunciated by the Canadian Cancer Society, should be
invoked. That principle states: “When an activity
raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause-and-effect
relationships are not fully established scientifically.”
This is a good rule and reflects common law on informed
consent.
Canadian women deserve full and complete information on
this subject. Will you support and advocate research on
this very important subject?
I await your reply.
Sincerely,
Addresses
National
Contacts
British Columbia
Alberta
Saskatchewan
Manitoba
Ontario
Quebec
New Brunswick
Nova Scotia
Prince Edward Island
Newfoundland
Yukon Territories
Northwest Territories
Nunavut
References
(1) Picard EIand Robertson GB. Legal
Liability of Doctors and Hospitals in Canada, 3rd ed.
Scarborough, ON: Carswell Thomson Professional Publishing,
1996, p. 119,120.
(2) Picard and Robertson, p. 141, 142.
(3) Canadian Cancer Society Web Site: Statistics,
2004. http://www.cancer.ca/ccs/internet/standard/0,3182,3172_14435_371399_langId-en,00.html
(11/3/04).
(4) Picard and Robertson, p. 126, 127.
(5) Schlafly A. Legal Implications
of a Link Between Abortion and Breast Cancer. Journal
of the Association of American Physicians and Surgeons.
Spring 2005; 10(1): 11-14.
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