Informed consent?

In 1995 the Wisconsin Legislature passed a law requiring  abortion 
providers to give prospective clients  state printed materials 
containing information on the medical risks associated with abortion. 
The law requires the Wisconsin Department of Health and Family 
Services to exercise "diligence" in producing a pamphlet that is 
"objective, accurate   and current".  The stated purpose of the 
law is provide the woman with the information for informed consent.


At its core, the common law doctrine of informed consent imposes a 
legal duty on the physician to inform her patient of significant 
facts about a proposed procedure so the  patient can choose 
intelligently whether to consent. 

The scope of the physician's duty to warn extends to all material 
risks. A risk is material if a reasonable patient, in what the 
physician knows or should know to be the patient's position, would 
be likely to attach significance to the risk in deciding 
whether or not to forego the proposed procedure. [FN136] 
This standard is distinct from the issue of causation, triggering 
the physician's duty to warn even when disclosure of the risk would 
not in fact have caused the particular patient to forego the 
procedure. [FN137]

The Wisconsin State Journal  Sunday March 12, 2000 ran two guest 
columns on this law. 

John  Kindley, a UW Law School graduate, protested that the current 
pamphlet fails to include a statement on the increased risk of 
breast cancer caused by abortion (the ABC link). He has filed 
lawsuits against abortion providers for failing to state the ABC risk.

Polly Newcome of the UW-Madison Cancer Research Center countered that 
there is not sufficient proof of such a risk.

I sent this letter to both the WSJ and  John Kindley.


EDITOR:                                               12 March 2000

The John Kindley - Polly Newcomb  debate on ‘informed consent’ about 
the medical risks of an abortion left out a factor.  

The possible increase in breast cancer  for women who have abortions 
is not established.  It seems to be found only in studies that rely 
on interviews with women who have beast cancer,  but not in studies 
based on the medical records.  This would suggest that women who have 
breast cancer are more likely to talk about having had an abortion. 
And of course any such study must control for other factors: are 
women who have had abortions also more likely to smoke, or have 
other  cancer risk factors?  If the ABC link exists at all it is 
at the margin of what can be detected. 

But there is fact where the evidence is clear: for a woman in the 
early stages of pregnancy, it is between 10 and 25 times safer to 
have an abortion than to not have it. For any OTHER medical procedure, 
‘informed consent‘ would mean being informed of the relative risks of 
having Vs not  having the procedure.  It is only after about 16 weeks 
that the risk of an abortion become greater than the risk of 
continuing   the pregnancy. 

But  does the Wisconsin "information" pamphlet inform the woman of 
this fact?

And I bet John Kindley  is not about to file a lawsuit over the 
failure of anyone to provide that information.

(The Wisconsin State Journal printed  my letter on March 26, and I
got a reply from John Kindley)


REPLY From John Kindley: (JAKindley@aol.com)

>I discuss the "recall bias" hypothesis and the issue of possible 
>confounding 
>factors in my Wisconsin Law Review article, which is posted on my 
>web site at www.johnkindley.com.  The discussion is in the 
>"Consideration of Alternative 
>Explanations" section, particularly in footnotes 177 and 178.

Hi,

I noticed that although several confounding factors were listed 
including age of first pregnancy and number of other children and 
oral contraceptive use, no mention was made of smoking.  Yet I have 
read that women who get abortions are more likely to smoke and 
make other risky lifestyle choices than women who do not. 

>And of course, if the association between induced abortion and 
>increased breast cancer risk reflects a causal link, this itself 
>shows that induced abortion is more dangerous than childbirth 
>by far.

Of course this can be viewed exactly the other way: if the risk
Of childbirth is higher than of abortion, then women who get abortions
are more likely to live long enough to develop breast cancer.  I mean 
playing Russian Roulette will greatly reduce your risk of getting 
prostate cancer.

But really, this is not the issue. The ABC link is disputed by 
experts, and is, at best, at the margin of what can be measured  
statistically from much data.

The fact that the death risk from childbirth is 10 to 25 times 
greater than the death risk from an abortion is clear from actual 
death rate data on both.  It is not based on any assumed theory or 
rat studies.  

If the doctrine of informed consent imposes a legal duty on the 
physician to inform her patient of significant facts about a proposed 
procedure so the patient can choose intelligently whether to consent, 
then when one alternative carries 10 to 25 times the relative risk of 
the other alternative, do you think the woman has a right to be 
informed of that fact?

Would you defend a manufacturer of two pills for treating the same 
condition, who failed to disclose the fact that one of the pills 
carried a death rate 25 times that of the other pill?  I think if 
you were honest you would admit that your purpose in this is not to 
assure ‘informed consent’ but to try to influence women to chose 
childbirth over abortion. 

REPLY II from Kindley:

<< The fact that the death risk from childbirth is 10 to 25 times greater 
than the
 death risk from an abortion is clear from actual death rate data on 
both. >>

>According to the Alan Guttmacher Institute (www.agi-usa.org), there is 
>"one death for every 530,000 abortions at 8 or fewer weeks," and "the 
>risk of 
>death associated with childbirth is about 10 times as high as that 
>associated 
>with abortion." Assuming for the sake of argument that these figures 
>from 
>the research arm of the abortion industry are correct, this would mean 
>that 
>the risk of death associated with childbirth is about 1 in 53,000.  By 
>contrast, the risk of dying from breast cancer associated with having 
>an abortion is around 1 in 100.  

>Yes, in answer to your question, I do of course think women have a 
>right to know about the risks of childbirth.

                                            John Kindley    

Hi,

You are not seriously questioning the fact that an abortion  carries 
about ten percent as much relative risk of death as childbirth are you? 
And that is for the USA on average. Worldwide the childbirth death 
rate  is much higher (as it was for most of human history).  Did you 
see the WHO report a few years ago that about 500,000 women die per 
year world wide from childbirth complications?

Even in the US, the rate is higher for some places and for some 
groups.

Your  "around 1 in 100" ABC rate is not considered to be established 
by the medical profession. Note that Polly Newcomb is from the 
UW-Cancer Research Center.  You are claiming a 1% increase in relative 
risk and filing lawsuits because it is not included in the "informed  
consent" literature, but an established 900% (to 2400%) relative risk 
factor is ignored. You would not file a lawsuit over that omission.

So this is not really about informed consent. 

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