The Abortion-Breast Cancer Link
Goes on Trial

By Joel Brind, Ph.D.

After more than two years of judicial wrangling, a public service ad warning that women who abort increase their likelihood of contracting breast cancer is still not appearing in Philadelphia's rapid transit stations. That's the bad news.

The good news is that a federal appeals court unanimously overturned a district judge who had ruled on August 16, 1996, that the Southeast Pennsylvania Transit Authority (SEPTA) could prohibit the ads - - provided and paid for by Christ's Bride Ministries (CBM), an educational ministry run by Brad Thomas of Merrifield, Virginia - - from appearing in rapid transit stations.

Unfortunately, SEPTA has announced it intends to appeal the decision to the U.S. Supreme Court, which prevents the ads from appearing for the time being.

The questions at issue in this important case revolve around both free speech rights and whether there are reputable academic studies that document a link between induced abortion and breast cancer. In May 1996, I testified at the original hearing before Judge Harvey Bartle, III. Some background might be helpful.

In January 1996, CBM contracted with the transit authority's agent, Transportation Displays, Inc., to place in Philadelphia rapid transit stations a public service ad which read: "Women who choose abortion suffer more and deadlier breast cancer."

The posters first appeared in 26 locations on January 15, 1996, and were to run for one year. The cost was set at over $3,000 per month.

But on February 16, SEPTA had the ads removed, using as justification the advice of Dr. Philip Lee - - an assistant secretary for health at the Department of Health and Human Services - - given in an earlier case that involved the same ad.

In January 1996, Dr. Lee had sent a letter to the general manager of the Washington Metropolitan Area Transit Authority (WMATA), which had placed the same warning ad as a public service in its train stations, "encourag(ing)" the transit authority to withdraw these public service ads.

Why? According to Lee, because they were "misleading" and "unduly alarming."

WMATA refused to follow Dr. Lee's "encouragement" and the ads remained up for the one month they were scheduled to appear.

However, CBM's contract for public service ads in the Philadelphia rapid transit stations was for an entire year. When SEPTA's General Manager Louis Gambaccini received a faxed copy of Lee's letter from an unknown source, he ordered the signs removed. The order went out without so much as the courtesy of a phone call to CBM, nor even to the Department of Health and Human Services to verify the authenticity of the letter, according to court testimony.

Underscoring the flagrancy of the violation of CBM's free speech right to display the ads, they were ripped into little pieces and dumped in the nearest SEPTA station trash cans, according to photographer Robert Halvey, who fished one of the signs out of the trash to photograph it. Mr. Thomas, represented by Liberty Counsel, a public interest law firm in Orlando, Florida, sued in federal district court in Philadelphia for violation of his First Amendment rights. The case was heard in May 1996.

SEPTA claimed that the ads were "misleading" and "unduly alarming" and on that basis claimed the right to remove them. That is how the validity of an abortion-breast cancer link (ABC link) came to be a key component of the trial. I served as the expert witness for CBM to document the evidence that there is such a link.

What was extraordinary about Judge Bartle's ruling in favor of SEPTA was that he actually acknowledged the ABC link at the trial. During closing arguments he pointed out to SEPTA's attorney, "But, the evidence seems to indicate that there is at least a weak link between abortion and breast cancer. Didn't your experts concede that? "

Having acknowledged the link, Judge Bartle nevertheless went on to rule in SEPTA's favor essentially on two grounds. First, he determined that the forum at issue - - the advertising space - - was non-public. That makes the speech subject to greater restrictions: the removal of the signs need only be reasonable, he said.

Second, Judge Bartle held that SEPTA's action was reasonable, since the letter from Dr. Lee was from a highly placed public health official, and because a transportation authority could not be

expected to conduct a research study of its own decide the merits of the ABC claim. However, on June 25 a three-judge panel of the U.S. Court of Appeals for the Third District unanimously disagreed. Justices Martin Greenberg, Jane Roth, and Joseph Weis, Jr., ruled that the advertising space in the rapid transit stations did, in fact, constitute a public forum. Even so, public fora may be subject to some limitation based on content. But in this case, the panel correctly observed that SEPTA's advertising space had clearly been available on previous occasions to ads dealing specifically with "the topic of abortion and its health effects."

But does CBM's warning about the ABC link have enough basis in the current body of medical literature so as not to be characterized as unduly alarming? According to the decision of the appeals court panel, even the testimony presented on the issue of an ABC link by SEPTA's experts - - Drs. Clark Heath of the American Cancer Society, Polly Newcomb of the Fred Hutchinson Cancer Research Center, and Lynn Rosenberg of Boston University School of Medicine - - "acknowledge[d] that some studies show a weak association between induced abortions and breast cancer." Moreover, referring to my May 1996 testimony, the appeals court panel concluded that "CBM's expert, on the other hand, testified that he had analyzed 23 epidemiological studies, 12 of which, in his opinion, showed a statistically significant increase in breast cancer among women who had undergone induced abortions. He argued that this risk could not be accounted for by the presence of other variables, such as age or family. The increased risk, CBM's expert noted, was greater than the relative risk associated with oral contraceptives. Because manufacturers of oral contraceptives alert the public as to the possible link between their product and breast cancer, it should not be unduly alarming for CBM to report a slightly greater risk purportedly associated with induced abortions."

The appeals court concluded that CBM's First Amendment rights were violated when SEPTA removed CBM's ads.

The justices went on to add that even if the speech in question had fallen outside the limited public forum (i.e., even if the forum was deemed, as it had been by Judge Bartle, to be non-public), "we would nonetheless conclude that SEPTA's removal of the posters violated the First Amendment because the removal was not reasonable," essentially because "the subject of the speech and the manner in which it was presented were compatible with the purposes of the forum."

Even more gratifying was that when SEPTA appealed the panel's reversal of Judge Bartle to the full 11-justice appeals court on July 9, two weeks later, the full court unanimously refused to rehear the case.

The only appeal that remained for SEPTA was to take the case to the U.S. Supreme Court, which SEPTA announced it would do. How much time that will take is anyone's guess.

Even though CBM has thus far prevailed, the results to date do leave something of a bad taste. Privately funded, paid advertising that warns women about the ABC link was taken down by the government (in the form of SEPTA) almost three years ago.

And while the courts have held that the government had no right to do so, there is no order to compel SEPTA to put the signs back up. Instead, SEPTA is permitted to keep tying the issue up in court until it is finally resolved, which may well take another year or more.

Dr. Brind, professor of human biology and endocrinology at Baruch College of the City University of New York, has been researching and reporting on the ABC link since 1992. He is editor and publisher of the Abortion-Breast Cancer Quarterly Update, from which the present article was adapted. For subscription information, contact Dr. Brind by phone or fax at (914) 463-3728, or via his web site: www.abortioncancer.com.