All Abortion Risks Must Be Disclosed, Appeals Court Rules

Argument to Invert Traditional Medical Standards Rejected

Springfield, IL (July 26, 2012) — A U.S. Court of Appeals has ruled that abortion providers can be required to disclose risks associated with abortion, even if the attending doctor believes the associated risk is only incidental to the abortion and not a direct result of it.

At issue was a South Dakota statute requiring abortionists to disclose to patients that women who have abortions are “at increased risk for suicide ideation and suicide.” This provision was challenged by Planned Parenthood, which argued that such a disclosure was untrue and misleading in the absence of irrefutable evidence that abortion is the direct cause of suicidal behavior.

Planned Parenthood admitted that numerous studies show a statistical association between abortion and suicide. For example, an eight-year study of the entire population of women in Finland found that the risk of suicide among women who aborted was six times higher in the following year than that of women who had given birth and three times higher than that of women who had not been pregnant.

But Planned Parenthood’s experts argued that such statistical associations did not prove a direct causal link between abortion and suicide. They argued that the higher rate of suicides might be due to prior psychological issues that predispose women who were already suicidal to have more abortions. If that were true, the observed statistical association would be incidental, not causal.

In the 8th U.S. Circuit Court of Appeals en banc ruling — a ruling from the entire bench instead of a panel of judges — the court rejected Planned Parenthood’s argument in an 8-4 decision, observing that “[i]t is a typical medical practice to inform patients of statistically significant risks that have been associated with a procedure through medical research, even if causation has not been proved definitively.”

The court noted that federal rules for labeling of prescription drugs require a warning to be included “as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” (emphasis added, 21 C.F.R. § 201.80(e))

The “standard practice” in medicine, the court wrote, is to “recognize a strongly correlated adverse outcome as a ‘risk,’ even while further studies are being conducted to investigate which factors play causal roles.” The court went on to sharply criticize Planned Parenthood’s “contravention of that standard practice,” concluding that “there is no constitutional requirement to invert the traditional understanding of ‘risk’ by requiring, where abortion is involved, that conclusive understanding of causation be obtained first.”

“This is an extremely important ruling,” said David Reardon, director of the Elliot Institute and an advocate for new laws requiring abortionists to screen for risk factors associated with abortion complications.

“It not only upholds the right of states to require full disclosure of risks, it rejects the widespread practice within the abortion industry of concealing risks which, they claim, have not been conclusively proven to be solely due to the abortion itself,” he said. “Nowhere else in medicine is this the standard for disclosing risks. Only abortion providers claim that their treatment must be presumed innocent until proven guilty beyond a reasonable doubt.”

According to Reardon, the ideological claim that a “woman’s right to abortion” trumps all other medical considerations has caused abortion providers to disregard the standard requirements surrounding not just risk disclosure but also any evidence-based risk-benefit assessment.

Ignoring Risk-Benefits Analysis Is Malpractice

“Everywhere else in medicine, it is the obligation of proponents of a treatment to first prove that the treatment is effective in achieving health goals for specific groups of patients,” Reardon said. “Doctor are then expected to compare these proven benefits with the risks associated with each patient’s unique risk profile. Only in cases where this risk-benefits assessment favors treatment should the doctor then recommend the treatment.”

But when it comes to the abortion decision, risk-benefits assessments have been displaced by a radical view of a woman’s unhindered “right to choose,” even if the abortion decision is ill-informed, Reardon said.

“Abortion counselors are trained to facilitate what they presume is a woman’s choice, not to question it,” he said. “As they see it, any efforts to second guess this are themselves a threat to the purity of an unfettered ‘freedom of choice.'”

This institutional perspective, he said, has made abortion providers “completely indifferent” as to whether or not abortion actually helps women in any specific ways.

“After 30 years of abortion on request, there are literally no studies showing that abortion produces any statistically significant benefits in women’s lives,” said Reardon, whose studies of abortion’s effects on women have been published in numerous medical journals. “There are no measurable benefits for women in general or for specific groups of women. This makes it impossible for doctors to fulfill their traditional role of providing medical advice based on a reasonable risk-benefits assessment.”

Reardon said that this is why this new ruling is especially important and may eventually bring an end to one-size-fits-all, assembly-line abortion practices.

“The appeals court soundly rejected Planned Parenthood’s claim that normal medical standards regarding risk disclosure don’t apply to abortion,” he said. “In doing so, it laid the foundation for states to reassert all the normal standards of medicine in regard to abortion. This ruling specifically acknowledges the obligation to disclose all significantly associated risks.”

Reardon said the ruling was a major step toward reforming the inadequate disclosure practices in the abortion industry.

“The rationale provided for this reform also lays the groundwork to require abortion providers to practice all the steps normally involved in medical decision making,” he said. “This means efforts to require screening for significantly associated risk factors and for providing each woman with a risk-benefits assessment are also likely to be upheld by the federal courts.”

He said that “once women are finally given an evidence-based risk-benefits assessment,  the number of unsafe and unnecessary abortions performed each year will plummet.”

Information about the Elliot Institute’s model legislation can be found at the Stop Forced Abortions web site.

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Citing Planned Parenthood v. Rounds (686 F.3d 889 (8th Cir. 2012) (en banc))

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