Ads Warning of Abortion-Breast Cancer Link Must Be Allowed, Court Says

By Joel Brind, Ph.D.

In an important First Amendment decision, the SouthEast Pennsylvania Transit Authority (SEPTA) has been ordered to permit the reposting of an ad that asserts a link between induced abortion and breast cancer and pay $165,000 in damages for its decision to censor a paid advertisement.

The March 29 ruling in Christ's Bride Ministries (CBM) v. SEPTA was handed down by James R. Melinson, chief magistrate judge for the U.S. District Court for the Eastern District of Pennsylvania, and concluded a controversy that began in 1996 and went all the way to the U.S. Supreme Court.

The ads had been posted in - - and removed a month later from - - public transit stations in Philadelphia back in early 1996. This case was about more than a dispute between an advertiser and a local transit authority, for the censorship of the message was a direct result of a letter sent by the federal government from an assistant secretary of the Department of Health and Human Services.

My involvement began in June 1995, when I got a phone call from Brad Thomas, head of CBM. He had been referred to me by the editor of a journal in which I had published a review of the medical literature up through 1993 investigating the link between abortion and breast cancer.

Thomas asked if I would mind reviewing a list of 100 short statements that warned women about the link. He intended to use the best one as a public service ad campaign in major cities.

Thomas asked me to choose the best slogans on the basis of the following criteria: "truthfulness, accuracy, profundity, import, impact, appeal, winsomeness, persuasiveness" and "memorability/memorableness."

I selected several of the slogans which, I told him, "would stand up in court." Little did I realize at the time that I would indeed be in federal court less than one year later, to defend the accuracy of the slogan, "Women Who Choose Abortion Suffer More and Deadlier Breast Cancer."

Background

For a fee exceeding $3,000 per month, CBM contracted with SEPTA to post the ads in its public transit stations beginning January 15, 1996. However, a month later, the signs were removed by SEPTA, following receipt by its General Manager Louis Gambaccini of a fax copy of a letter from then-U.S. Assistant Secretary for Health Dr. Philip Lee.

Lee's letter requested the ads' removal because they were, he wrote, "misleading" and "unduly alarming." (As it turned out, Dr Lee's letter was originally sent to Mr. Gambaccini's counterpart in Washington, D.C., where CBM had posted the same ads. Who forwarded the letter to SEPTA is unknown.)

CBM promptly took SEPTA to federal court. The case was heard in May 1996 which included my own expert testimony on the scientific validity of the ad's message. On August 16, Judge Harvey Bartle, III, ruled in favor of SEPTA.

Judge Bartle held that the removal of the CBM ads was "reasonable" and did not violate CBM's free speech rights. Curiously, during the trial Judge Bartle acknowledged the evidence of the link between abortion and breast cancer. During closing arguments, he remarked 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 thus opined that there was truth in the CBM ads' claim, Judge Bartle nevertheless went on to rule in SEPTA's favor on essentially two grounds. First, he determined that the forum at issue - - the advertising space - - was nonpublic.

In a nonpublic forum, the owner or proprietor of the forum may restrict the content of the speech, provided it does not restrict the viewpoint expressed, he said. For example, the proprietor cannot accept pro-abortion ads, but reject anti-abortion ads. 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 to decide the merits of the claim of a link between induced abortion and breast cancer.

This made it relatively easy for the three-judge panel of the Third Circuit Court of Appeals on June 25, 1998 to overturn Judge Bartle's ruling. Abundant evidence had been presented at the trial which showed that the forum in question was clearly open to the discussion of controversial topics, including abortion.

An appeal by SEPTA to the full, 11-justice Court of Appeals for the Third Circuit to hear the case was unanimously rejected on August 6, 1998 - - lightning fast for a judicial process. Yet by the time the Supreme Court decided not to hear the appeal, on January 11, 1999, almost three full years had gone by since CBM had initially placed the ads.

All this time and expense to undo the censorship of a public health claim - - that there is a link between induced abortion and breast cancer - - which every jurist along the way conceded had merit, including Judge Bartle.

Yet there is more to the story, for the CBM ad not only linked a higher incidence of breast cancer to women who choose abortion, but also "deadlier breast cancer."

In Judge Bartle's original 1996 decision, there appears only a one-line reference to this issue: "Finally, they [SEPTA's three expert witnesses] rejected Dr. Brind's interpretation that any of the three studies upon which he relied supported the notion that abortion causes a deadlier breast cancer."

With all due respect, this statement does not do justice to the evidence presented at the trial on this issue.

For one thing, I presented as evidence four studies, not three, that related to the question of whether this was a "deadlier" breast cancer. Two of them, which involved microscopic studies of actual cancerous breast tissue taken from Swedish patients, correlated more malignant characteristics of tumors from patients who had a history of abortion. The third study, which was completed at the Michigan Cancer Foundation in Detroit, linked abortion history to a higher recurrence rate of breast cancer.

The fourth study was a landmark study on patients at the Princess Margaret Hospital in Toronto, Canada. These patients were those who had either had breast cancer diagnosed during a pregnancy, or who became pregnant subsequent to being treated for breast cancer.

Although this represents a small subgroup of breast cancer patients - - about 3% - - it clearly showed much poorer survival among those patients who had opted for abortion; in other words, they had deadlier breast cancer. Moreover, as I pointed out, the study reflected a consistent body of worldwide data collected among such patients.

But what was most telling about the evidence presented on the "deadlier" issue was that SEPTA's three experts seemed to be entirely unfamiliar with the data. They essentially concluded that the studies upon which I (and CBM) had relied were inadequate to draw a definitive conclusion.

But I did not conclude that the data on the "deadlier" claim were entirely definitive, but rather that "the studies that are available tend in that direction."

What can be said as far as the scientific evidence of both "more" and "deadlier" were concerned? That none of it was actually refuted at trial, even by SEPTA's own experts!

But it took more than three years, and a Supreme Court ruling, before the final judgement was entered. And it's not the monetary award - - $165,000 - - that is most significant. The real victory is the order that SEPTA must allow the reposting of the same CBM ads.

The real challenge is to get the federal government - - in the form of the National Cancer Institute - - to warn women about the single most avoidable risk factor for breast cancer: abortion. It is an ongoing battle.

But at least the federal government has been stopped from preventing concerned citizens from doing so. And that is no small victory.

Joel Brind, Ph.D., is a professor of biology and endocrinology at Baruch College of the City University of New York, and editor and publisher of the Abortion-Breast Cancer Quarterly Update.