Thursday, January 27, 2005

Pro-Life Activists Herald Settlement in Abortion-Breast Cancer Case

Pro-Life groups are heralding one of their first litigation victories, a settlement obtained from an abortion clinic to a patient whom they failed to inform about the increased risks of breast cancer posed by abortions during the teenage years. For a few other (biased) reports besides the Washington Times link in the title, click here and here. Activists on both sides of the abortion debate are likely to react strongly to this, so here is my attempt to put the facts about this case in perspective…

1) This was a settlement, not a jury verdict (the World Net Daily article blurs the distinction). The fact that the judge signed the settlement as an order doesn’t mean the judge thought the plaintiffs should win; judges always sign judgments to settle cases so they can be cleared off the trial docket, except where the settlement involves a promise from the plaintiff to withdraw the case completely. The latter is less likely where the defendant appears to be headed to bankruptcy court, meaning the settlement will be difficult to collect if it is a mere private agreement and not an order entered by a court.

2) The plaintiff’s case is based mostly on a scientific study published in the mid-1990’s indicating that abortion raised the risk of breast cancer in women – 150 times higher for girls under 18, and much more for those with a family history of breast cancer. Unsurprisingly, the study itself remains very controversial, being hotly contested by pro-choice groups. Its authors, however, were doctors at a Seattle Cancer Center (i.e., not just pro-life activists), and was published in the Journal of the National Cancer Institute. I’m not attempting to vouch for the accuracy of the study, just its basic legitimacy as genuine scientific inquiry – it’s not pro-life propaganda, but it should still be subject to scientific scrutiny, like any other medical research. Let the medical establishment do further research, I say, as long as neither political side gets to silence the conclusions.

3) The girl was 15 when she had her abortion, stated on her clinic paperwork that her mother, grandmother, and an aunt had all suffered from breast cancer, and still the folks at the clinic told her nothing about a possible heightened risk of cancer for her. This seems odd given that doctors now are so afraid of malpractice liability that they normally are quick to disclose even possible risks. Each time my wife had a baby, her doctors would tell her about one or two new articles in medical journals indicating a possible connection with this or that and various ailments for the mother or child, even when the study was still new or controversial. I’m surprised the clinic wouldn’t have bothered with some simple disclosures like that.
The girl did not acutally get cancer, but she is very worried about it. (which means they may have had trouble proving damages if they'd gone through a trial).

4) The abortion clinic in this case actually went out of business last year (with a reported $150,000 in unpaid bills), and their lawyer says the decision to settle was made by the insurance company to avoid the costs of going through a full trial, which they maintain they would have won. I believe them; I don’t know who would have won. But the case really settled because there’s no more money coming in to pay their lawyer to go ahead with a trial, to hire experts to contest the cancer report, etc. – not because of the merits.

5) All that being said, law students shouldn’t discount the value of litigation as a policy advocacy tool (for better or wrose). Civil litigation (not government regulation) removed Joe Camel billboards from the area surrounding the junior high schools. For all the flack about the McDonald’s “fat” case (partially revived this week by the Second Circuit), as soon as the first suit was dismissed McDonald’s introduced a new line of GREAT salads (much improved from their plastic cup of white iceberg lettuce they used to hand you) and alternative Happy Meals with fresh fruit, etc. Only one case against an airline over deep vein thrombosis has settled so far (from what I’ve read) out of the thousand or more that have been filed, but all the airlines have started giving warnings to passengers on overseas flights about the risks of DVT and the need to move around or do certain exercises during the flight. I like the new McDonald’s salads (and have no choice about eating there, because I have young children), and I’m hoping that the airlines will think twice about shrinking the economy class seats any more than they already have in light of the potential DVT liability (I’m 6’4” and really notice the ever-smaller seats in economy class). I’m sure the companies felt like victims, but I think the world is a better place because of these lawsuits –many of us have already benefited (yeah, I know McDonald’s has to pass their litigation costs through to their shareholders or customers, but that’s a pretty thin spread when you serve “billions and billions”). More recently, lawsuits have started to pop up around the country against alcohol manufacturers for marketing their products to irresponsible youth and contributing to drunk driving accidents. The courtroom provides a different set of incentives for people than picket lines and protests. If the (still controversial) cancer study about abortion turns out to be corroborated by other scientific research, I think patients should get to hear due warnings. A wave of litigation could follow if they don’t.

I like private litigation as a tool for social change (better than old-fashioned civil rights litigation, in fact). The common law tort system has built-in elements that are more free-market based and democratic, in some ways, than command-and-control regulation by unelected "experts" at an administrative agency. The tort system allows more room to consider any exceptional equities involved with particular parties, more room for private insurance markets to step in and offer financial incentives to reduce the risks of harm, and a financial incentive (plaintiff's contingency fees) to screen out the ridiculous. This is why I've argued for gun maker liability - I'd rather private litigation than escalated government regulation, which is often the only alternative. If it goes too far, the jury can say, "Nay." The private companies can decide for themselves how to manage their risks - whether by reduction, spreading, or viewing it as a straight business cost.

The other thing I like about civil-litigation-as-policymaking: the advocates have to engage in a lot of sharp, analytical thinking every step of the way, whereas the usual political route is tainted with shouted slogans, misleading propaganda, and personality cult/popularity contests. Taking these grand social battles into the courtroom forces the advocates to research and think through (carefully) issues of standing, jurisdiction, cognizability of harm, causation, relevancy and reliability of evidence, and the best remedies (damages, injunctions, etc.). This is a good thing, because the policy results can be more well-informed and fine-tuned.