ABORTION, BREAST CANCER, AND INFORMED CONSENT

By Barry A. Bostrom, M.Div., J.D.

Editor's note. Issues in Law & Medicine is a peer reviewed professional journal published three times a year by the National Legal Center for the Medically Dependent & Disabled, Inc. and the Horatio R. Storer Foundation, Inc. Published since 1985, Issues is devoted to providing useful information on recent legal and medical developments to assist attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions.

The lead article in the Spring edition of Issues in Law & Medicine, written by John Kindley, J.D., focuses on the legal implications of the scientific evidence that is showing arelationship between induced abortion and an increasedincidence of breast cancer. "Abortion, Breast Cancer, and Informed Consent" argues that this risk is both sufficiently documented and sufficiently large that physicians ought to be required to fully disclose the risk to women considering induced abortion.

According to medical studies, an American woman, on average, has a 12% chance of contracting breast cancer over the course of her lifetime. But that average risk increases by half - - to 18% - - for women who have had at least one induced abortion. That " average" hides a grim reality: in particular categories of women the chances of having breast cancer are very much higher should they choose to abort.

For example, the risk is approximately 25% for women who had their abortions after they turned 30. And the risk is approximately 30% for women who've had induced abortions before they turned 18.

For women with a family history of breast cancer, the increased risk of breast cancer is still greater. (By way of comparison, men who are heavy smokers have a 10% lifetime risk of developing lung cancer.)

Significantly, there is no evidence that miscarriages cause an increase in breast cancer risk. "Abortion, Breast Cancer, and Informed Consent" demonstrates (1) that current scientific evidence links induced abortion with increased breast cancer risk and (2) that this risk is sufficient to require physicians to disclose fully the risk to women who are considering induced abortion. John Kindley examines this evidence in the light of the required elements of a medical malpractice claim for failure to obtain informed consent. The first part of the article defines the elements of an informed consent claim, which requires (1) that the woman establish the physician's duty to disclose information regarding the increased risk of breast cancer for women who have induced abortions; (2) that the evidence shows the physician failed to disclose the increased risk of breast cancer; (3) that the evidence shows this failure to disclose contributed to the woman's decision to have an abortion; and (4) that the evidence shows the woman's abortion was a cause of the her injury, i.e., breast cancer. The second part of the article discusses the standards for determining which risks a physician has a duty to disclose and concludes that physicians do have a duty to inform women considering abortion of the increased risk of breast cancer. Part three reviews the scientific evidence of the abortion/breast cancer link and explains why such evidence is admissible in expert testimony. The fourth part assesses thesignificance of the risk posed by the link. Parts five and six discuss evidentiary issues in presenting such a medical malpractice case and the possibility of obtaining punitive damage awards. The second article, written by John I. Fleming, Ph.D., explains what has happened in the euth-anasia debate in the Australian states and territories. It provides a detailed account of how the Northern Territory's euthanasia laws were overturned by the Australian federal government.

Dr. Fleming, director of Southern Cross Bioethics Institute in Southern Australia, begins with a review of euthanasia legislation in each state and territory, then proceeds with an analysis of the politicaland legislative events in the Northern Territory leading to reversal of its euthanasia laws. Dr. Fleming argues that the repeal of the 1995 Northern Territory's Rights of the Terminally Ill Act was a significant setback for the pro-euthanasia movement, not only in Australia, but worldwide. The Nota Bene section summarizes recent court decisions of note. This issue analyzes the 1999 Seventh Circuit Court of Appeals' decision in the Illinois and Wisconsin cases which upheld laws banning partial-birth abortions.

The Verbatim section, which publishes various documents of interest, presents two items. The second includes an open letter of the Dutch Physicians' League opposing legislation in the Dutch Parliament which the league believes would further establish euthanasia as accepted medical practice in the Netherlands. The Abstracts section, which extracts portions of recent articles from law and medical journals, includes articles (1) critiquing the consideration of all medical care as "futile" for persons "who lack the capacity to appreciate the benefit of a treatment" (e.g., all persons with significant mental disabilities); (2) demonstrating that the will to live in terminally ill cancer patients is highly unstable; (3) examining the inadequacy of official reporting of assistedsuicides in Oregon, which leaves important questions unanswered; (4) calling into question those who challenge the benefit of tube feeding for patients with advanced dementia; and (5) questioning the ethics of third-trimester abortions for fetal abnormality. This edition concludes the journal's eighth year as a peer-reviewed journal. Appearing at the close of this edition is the Peer Reviewer Acknowledgment of all those scholars who have assisted us with review of manuscripts considered for publication in 1999. Issues in Law & Medicine is a peer reviewed journal published three times a year. The annual subscription rate is $69 for individuals, $89 for institutions, for three issues. Single issues are $23. Requests may be sent to Issues in Law & Medici ne, 3 South 6th Street, Terre Haute, IN 47807-3510.

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Barry A. Bostrom is Issues in Law & Medicine's executive editor.