National Observer Home > No. 64 - Autumn 2005 > Articles
A Review of Medical Standards in Abortion services and some Resulting Problems
Charles Francis Q.C.
In the past, in most countries the
medical profession was held (and
rightly) in very high esteem. The majority
of medical practitioners have
always derived considerable personal
satisfaction from the benefits they are
able to achieve for their patients. What
was in the patient’s best interests was
invariably the guiding principle, and
that was the essence of any decision
made by a medical practitioner in determining
what medical treatment the
patient should receive.
Unfortunately the United States
Supreme Court judgement in Roe v
Wade opened up a huge new area of
medical practice in which these principles
were no longer applied. That
may well be one of the reasons why
this area of practice is now increasingly
being referred to as the “abortion
industry” rather than a professional
service. At or about the same
time abortion industries developed in
many other Western countries.
Whilst this paper is primarily concerned
with the physical and mental
damage done to women by abortion,
it is important to note that one of the
greatest threats to the human family
today is population decline. Many developed
countries are now confronted
by a “demographic winter”, the major
cause of which is the choices made by
women to avoid or abort pregnancies.
In the provision of abortion there
are so many unfortunate aspects of the
way in which these services are provided
that medical practitioners performing
abortions often become the
very antithesis of what professional
men should be.
The typical abortionist derives no
satisfaction from the work he does,
tends to despise and even hate women,
and as time goes by finds it increasingly
difficult to live with himself.
Amongst abortionists there is a surprisingly
high incidence of alcohol and
drug abuse and suicide.1
At times one cannot but wonder
whether abortionists should be considered
to be a part of the medical profession
at all, but whilst abortionists
continue to be regarded as a branch
of the profession, inevitably they will
continue to lower respect for the profession.
Abortion is the “red light” district
medical practitioners do not want to
know about and are reluctant to discuss.
So long as this continues to be
the situation, no proper medical
standards will be imposed on those
who provide abortion services.
In the United States and Australia,
abortionists are increasingly being
sued (and justifiably) by their patients.
With such litigation both the medical
profession and the general public will
inevitably learn much more about the
abortion industry and how services
are, in fact, provided.
Today when a woman believes she
wants a termination of her pregnancy,
often she simply rings the clinic concerned
and a time is fixed for the performance
of the operation. The
woman arrives at the appointed time,
sees the operating surgeon momentarily
(sometimes not at all), and very
shortly after her arrival the abortion
is performed. When a termination is
performed in that way what occurs is
a breach of a most fundamental duty
of a medical practitioner. No medical
operation should ever be performed
unless the surgeon first satisfies himself
that the operation is likely to be in
the best medical interests of the patient.
In fact whenever a pregnant
woman comes to a doctor, there are
not one but two patients, the mother
and the child. To each the medical
practitioner owes a duty.
Secondly, before any operation is
performed the medical practitioner
needs to obtain some personal history
from the patient, as well as a family
history, in so far as that history could
be relevant to the operation to be performed.
There are many questions
which need to be asked. Of special
importance is the psychiatric history
of the patient and her immediate family,
and whether there is any family
history of breast cancer. Such histories
are seldom obtained.
That abortions can cause psychological
damage is extremly well documented.
In 1989 an authoritative article
by Professor Philip Ney was published
in the Psychiatric Journal of
the University of Ottawa (Vol. 14 No.
14). In 1996 the Rawlinson Report in
England indicated a high proportion
of women who had abortions suffered
adverse psychiatric consequences.
More recently the psychiatric consequences
of abortion have again been
very fully detailed and analysed by
Professor Ney and David Reardon of
the Elliott Institute.2
It is now known that in 5-10 per cent of cases the psychological damage is
severe, likely to be extremely durable
and also very resistant to treatment.
If the woman has herself had prior
psychiatric problems, or such problems
have occurred amongst her siblings
or parents, she is then readily
identifiable as a bad risk. It has also
been reasonably well established that
an abortion performed for psychological
reasons is highly likely to do a
woman far more harm than good.
If there is a family history of breast
cancer, the risk of breast cancer following
abortion will also increase substantially.
In a study by Janet Daling,
University of Washington, 1994 3 every
woman who had an abortion under
age 18 and who also had a family history
of breast cancer, developed breast
cancer by the age of 45. Janet Daling
is pro-choice but considered it very
important that women should be
made aware of this risk.
There are now many other known
risks of abortion which are being increasingly
documented4. This means
that where a doctor performs an abortion
he needs to spend a long time with
the patient explaining the risks. This
creates a problem for abortionists. If
the risks are properly explained the
patient concerned is unlikely to have
her pregnancy terminated.
In many countries in the Western
world, before any doctor operates he
must obtain the consent of the patient,
but it must be an “informed consent”.
If the risks of the operation are not
properly explained then any consent
which may have been obtained can be
invalidated. In those circumstances
even though the operation may be
competently performed, it is, in law,
an assault for which damages can be
obtained. Independently of the necessity
to obtain informed consent, if
there be known risks in performing
the operation, even though the risks
may be slight, the medical practitioner
has an express duty to warn the patient
of the risks. If he does not do so
and the risk materialises then ordinarily
the medical practitioner is liable in
damages for negligence.5
In Australia in 1996 two cases were
commenced on that very basis, namely
that in each instance the woman concerned
suffered a severe psychiatric
reaction following an abortion, and
she had been given no warning of that
possible consequence. It was alleged that in failing to give that warning the
hospital and medical practitioner were
both negligent. These cases are referred
to by the pseudonyms “Ellen”
and “Cynthia”. Ellen’s case was the
first to be determined and in September
1998 was settled for an undisclosed
amount. Although the settlement
was confidential, the case received
widespread publicity in Australia
and overseas, and led to further
actions being brought both in Australia
and the United States. Cynthia’s
case was vigorously contested in
Court, but on the fourth day was settled
for a relatively large sum.
Again
the actual amount of the settlement
was confidential. They are believed to
be the first two cases of this nature in
the world.
Prior to Ellen and Cynthia’s cases
abortionists were rarely sued, except
where there was serious physical injury
inflicted and obvious and gross
negligence. These two cases helped to
create a climate in which women are
far more ready to sue their abortionists
when the risks of abortion are not
adequately explained to them.
There is consequently a growing dilemma
for abortionists. Unlike other
medical practitioners, bortionists are
ordinarily in it solely for the money.
The real profit comes from the performance
of the abortion itself. Counselling
tends to be poorly remunerated,
and when properly performed
ordinarily leads to a decision to proceed
with the pregnancy.
The Australian Department of
Health at present provides a substantial
sum of money each year for abortion
counselling, much of which is provided
to bodies and clinics which have
a financial interest in the abortions
taking place. At one Victorian hospital
when a fifth year medical student,
who was engaged in counselling, suggested
to a patient she might be better
advised not to have her abortion,
the student was threatened with expulsion
from the medical course “if she
ever did that again”.
Although the risk of litigation and
legislation in the United States in such
states as Texas (which requires the
patient to be informed of some of the
specific risks) are now forcing abortionists
to provide patients with more
information about possible future
medical problems, abortionists and
abortion clinics still try “to sell” the
abortion and ensure it takes place. So
far as practicable they minimise the information
supplied. Typical of what
happens is the widespread practice of
turning the ultrasound screen away
from the pregnant woman to ensure
she does not view her fetus, the sight
of which may cause her to change her
mind.
Planned Parenthood, the major
provider of abortions in the United
States, strongly opposed legislation introduced
by Cliff Stearns (R-Fl) in the
House of Representatives which guarantees
free ultra sound screening to
any woman who visits a non-profit
pregnancy center that receives subsidies
for sonogram equipment.
The infamous euphemisms “products
of conception”, “fetal matter” and
“uterine tissue” are still commonly in
use and have continued to disguise
what in reality is occurring. One young
Australian woman who was informed
that after her abortion she might pass
some of the products of conception
went home believing she might pass
some placenta or other unidentfiable
human tissue. To her horror she first
passed what may have been the umbilical
cord. Later she passed an entire
leg to be followed by the other leg
of her unborn child. Thereafter she
passed part of the spinal column, the
rib cage and chest area with bones,
muscles and flesh. Finally came her
baby’s heart and then a small very
clearly identifiable head with glassy
eyes which appeared to be cold and
staring. It is not surprising that the
woman concerned developed a gross
post-tramatic stress disorder with severe
depression.
When four years later her legal action
was settled at mediation for a reasonably
substantial sum, she was still
in a dysfunctional state, depressed and
unable to work. Abortion appears to
be the one area of medical practice in
which relevant information is quite
deliberately withheld from patients.
In the year 2000 we take some pride
in the fact that in Australia we
launched the first case in which failure
to warn the patient of the increased
risk of breast cancer following
an abortion (now known as “the
A.B.C. link”) was pleaded as a matter
of negligence. The client’s lawyers,
who had the benefit of hearing and
reading Professor Joel Brind’s material
on the A.B.C. link identified the
woman as falling in the high risk category.
An opinion was obtained from
Professor Brind (Professor of
Endocrinology and President of the
Breast Cancer Prevention Institute),
which confirmed this risk. By the time
the case went to mediation in August
2002, as it had been her first pregnancy
and she had not become pregnant
since, it was indisputable that her
risk of developing breast cancer had
already increased by at least 10 per
cent by reason of the termination of
her first pregnancy. Her lifetime risk,
if she had no subsequent children,
would increase by 30-50 per cent.
The case was settled at mediation
and received widespread publicity in
the United States. This case has led to
further cases being filed in Australia,
the United Kingdom and the United
States, in which failure to warn of the
increased risk of breast cancer has
been pleaded as a particular of negligence,
and there have been at least
three other successful settlements. In
November 2003 in Pennsylvania, the
first U.S. case in which failure to warn
of the breast cancer risk was alleged,
was settled for an undisclosed sum
shortly before hearing.
A second case brought in the United
States on the failure to warn of the increased
risk of breast cancer and failure
to warn of the psychological risks was even more significant. All Women’s
Health Services, a clinic in
Portald, Oregon, rather than contest
the plaintiff’s case, agreed to judgment
for the plaintiff being entered against
it. On 24 January 2005 the Court ordered
judgment for the plaintiff and
the amount of damages was then
agreed in a confidential settlement.6
Jonathan Clark, attorney for the 19-
year-old plaintiff, says he believes the
judgment “makes a pretty powerful
statement about the science, indicating
the clinic was not willing to argue
against the claim that there is a link
between abortion and breast cancer”.
On the clinic intake forms the plaintiff,
who was then only 15, had indicated
there was a family history of cancer.
In fact, the plaintiff’s grandmother
had had breast cancer. In the
light of the Daling study (mentioned
above) it is highly likely the plaintiff
will develop breast cancer before she
reaches 45 years of age. The clinic,
however, never warned her about the
possibility of the existence of the
A.B.C. link. They took it upon themselves
to decide that this child, who
had gone to the clinic without her parents’
knowledge or consent, should be
kept in the dark. Advising her of such
a risk might well have scared her away
from having an abortion.
The same thing happens every day
to teenagers in Australia — many of
whom may not even know their family
cancer history. There is a stubborn
refusal by the abortion industry and
its ideological supporters to mention
the strong evidence now pointing to
the A.B.C. link, nor even to mention
that there is a debate under way.
In the United States the probability
of the existence of the A.B.C. link now
presents a very real dilemma for the
abortion industry. The industry seems
to be in much the same position as
were the tobacco companies 50 years
ago. Already some rather dubious
material has been produced suggesting
that there is no such link. If, however,
cases are contested in court and
all the evidence is fully aired, the general
public may well be alerted to the
probability of the existence of the link.
In the process of researching the
Oregon case (as was also done in the
Australian cases) Clark said: “As I read
the studies, which we would have tried
to bring into evidence (if there had
been a trial) they often showed abortion
does pose increased risk of breast
cancer.” In the Australian cases at
mediation it was emphasised that
there was scientific evidence supporting
the A.B.C. link, which was summarised
in the opening statements of the
plaintiff’s counsel.
Apart from the inevitable rise in
medical practitioners’ insurance premiums
as more and more actions are brought against abortionists, at the
present time in the United States the
most common type of medical malpractice
case is the failure to diagnose
breast cancer. In many instances, but
for abortion the breast cancer might
not have occurred.
Space constraints prevent the exploration
here of some of the many
other possible consequences of abortion,
such as the added risk of cerebral
palsy in subsequent pregnancies due
to premature delivery of infants. or
uterine problems during delivery. In
this regard it is important to note the
recent Australian case of Kristy Bruce.
Kristy Bruce was born with gross cerebral
palsy. An action was brought
against the obstetrician on the basis
that her cerebral palsy was caused by
negligent delivery. There was a considerable
body of expert medical evidence,
however, which indicated the
cerebral palsy was more likely to have
been caused by the rupture of her
mother’s uterus when labour began,
the rupture having resulted from a
prior perforation of the uterus during
an abortion a year earlier.
The judge
accepted that this prior abortion was
the probable cause of the rupture of
the uterus, and that the rupture was
the most likely cause of her cerebral
palsy and dismissed her claim.7
Unlike other fields of medical practice,
abortionists invariably fail to “follow
up” on their patients. Ordinarily
they may never see the patient again,
unless it be to perform a further abortion.
Many could possibly plead (wth
limited justification) that they are unaware
of the harm they are doing. As
the full truth concerning abortion
gradually emerges (as it will bit by bit)
inevitably the reputation of the medical
profession will suffer further damage.
It may then be realised that there
was great wisdom in the old
Hippocratic oath by which medical
practitioners undertook not to procure
abortions.
1. These problems are fully documented in the United States in “Lime 5: Exploited by
Choice”, Mark Crutcher (1996).
2. “Deeply Damaged”, Philip G. Ney (1997). See also “The Post Abortion Review”,
David Reardon, The Elliott Institute.
3. Daling J. et al, National Cancer Institute 1994: 86: 1584-92.
4. See, for example , “Lime 5”.
5. In the United States the legal duty has been fully elaborated in such cases as Gouse
v. Cassel 615A 2d331, 334 (Pa 1992), Canterbury v. Spence 464 F 2d 772 (1972) and
Scaria v. St. Paul Fire & Marine Insurance Co. 68 Wis 2dl 227 N.W. 2d 647 (1975)
In Australia in Rogers v .Whitaker 175 C.L.R. p. 479 the High Court said where the
material risk was 1 in 14,000 the surgeon was nevertheless negligent in failing to
inform the patient of the risk.
6. F.B. v. All Women’s Health Services, Multnomah County Circuit Court Case # 0307-
07422.
7. Bruce v. Kaye [2004] N.S.W. S.C. 277 (8 April 2004).
National Observer No. 64 - Autumn 2005
