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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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