Clarke Forsythe. Washington and Lee Law Review. Volume 71, Issue 2, Spring 2014.
Introduction
The Supreme Court’s abortion decisions in Poe v. Wade and Doe v. Bolton have been subjected to extensive criticism over the past forty years. Scholars have criticized the Court’s mistreatment of: common law history, American legal history, the abortion statutes of the nineteenth century, the use of sociological evidence that was not part of any record, the Hippocratic Oath, existing prenatal injury, wrongful death and fetal homicide law, existing state and federal court decisions on a right to abortion, precedent, and the unborn child’s status as a human being or person in the law. Others have criticized the workability of the Court’s doctrine and its impact on women. Recently, Professor Randy Beck has published several articles that focus on the arbitrary nature of the viability rule that the Court has never adequately justified, a focus shared by others before him. Professor Stephen Gilles has analyzed how the Court has never justified or explained its life-or-health exception after viability. Others have criticized the search for a new rationale for the Court’s abortion doctrine, whether it is found in the Equal Protection Clause or the Nineteenth Amendment.
The Medical Premise of Roe v. Wade
Too little attention, however, has been paid over the past forty years to the complete lack of a factual record in Roe v. Wade and Doe v. Bolton, and to the Court’s fundamental medical assumption that drove the outcome. The decision and opinions were driven by the medical claim that “abortion was safer than childbirth,” which was raised for the first time in the briefs in the Supreme Court and without any lower court record. That assumption was at the very heart of the deliberations and decisions in the abortions cases. The Court in City of Akron v. Akron Center for Reproductive Health specifically referred to it as “Roe’s factual assumption” and said that “the State retains an interest in ensuring the validity” of the assumption.
The medical premise directly and profoundly shaped virtually every major aspect of Roe and Doe, including the creation of the trimester system and the prohibition of health and safety regulations in the first trimester. Because of this medical assumption, the Justices extended the right to abortion throughout pregnancy. It was key to the Court’s historical rationale for a “right” to abortion. Because of this notion, the Justices gave abortion providers complete discretion to manage any issues of health and safety, and they prohibited public- health officials from regulating abortion in the first trimester. This medical assumption was the most consequential factual assumption of the abortion decisions of 1973, and it has been assumed to be true in subsequent abortion decisions by the Court.
The Impact of Roe and Doe
Of course, what the public knows as “Roe v. Wade” is really two cases, Roe v. Wade and Doe v. Bolton. The companion case of Doe v. Bolton has been regularly ignored over the past forty years, despite its significant impact on abortion policy in the United States. The Court held that Roe and Doe “are to be read together.” In Roe, the Court held that the states could prohibit abortion after fetal viability, “except where it is necessary … for the preservation of the life or health of the mother.” Then, in Doe, the Justices defined “health” as “all factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient.” The “health exception” after viability swallowed the supposed prohibition after viability. For forty years, the “health exception” after viability has meant emotional well-being without limits. Though some dispute that the “health” exception is a constitutional requirement, federal courts have imposed it as a constitutional requirement to invalidate abortion laws, including post-viability regulations. As Laurence Tribe wrote shortly after the decisions, “in [Roe and Doe] … [the Court] carried that doctrine [of substantive due process] to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”
The Mistake that Left the Justices with No Record
Roe and Doe actually began as a procedural mistake that left the Justices with no evidentiary record. The Court took the two cases in April 1971, when Justices Black and Harlan were still on the Court, not to decide the abortion issue but to decide the application of Younger v. Harris and, to a lesser extent, Dombrowski v. Pfister to the procedural aspects of Roe and Doe.
Then, in September 1971, Justices Black and Harlan abruptly retired due to ill health. That flipped the balance of the Court, and a temporary majority of four Justices-Douglas, Brennan, Stewart, and Marshall-resolved or disregarded the Younger issue and decided to use the two cases to declare a right to abortion before the Black and Harlan vacancies could be filled. That is how the Justices ended up with two cases that had no trial or any evidentiary record on abortion or its implications, disregarding a long line of cases holding that the Court will not decide constitutional questions without an adequate record.
Justice Blackmun told this story to at least two people, and it is confirmed by the briefs, the Justices’ papers, and the oral arguments. Justice Blackmun wrote to Chief Justice Rehnquist in 1987:
I remember that the old Chief [Warren Burger] appointed a screening committee, chaired by Potter [Stewart], to select those cases that could (it was assumed) be adequately heard by a Court of seven. I was on that little committee. We did not do a good job. Potter pressed for Roe u. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were.
With no evidentiary record in either Roe or Doe, the Justices were left with a large vacuum and the temptation to rely upon their personal experiences, prejudices, and hunches in deciding the abortion cases. And, in that evidentiary vacuum, the Justices were susceptible to untested theories of law, history, and medicine.
The Source of the Medical Mantra
One of those untested theories was the medical notion that “abortion was safer than childbirth.” Up through the 1950s, neither leading abortion advocates nor Planned Parenthood claimed that “abortion was safer than childbirth.”
The source of the claim is apparently an April 1961 report by Christopher Tietze in the Journal of the American Medical Association (JAMA). Thereafter, attorneys for abortion advocates made the claim in numerous cases in the 1960s in an attempt to influence the courts to legalize abortion. Eventually, Tietze’s paper made its way into court decisions. The California Supreme Court’s 1969 decision in People v. Belous, the first state court decision to invalidate a state abortion law, was the first court to make the claim. That decision actually cited three of the medical sources that the Supreme Court later cited in Roe and Doe. By the time the Court considered Roe and Doe, the claim that “abortion is safer than childbirth” was so frequently repeated that it had become a mantra.
No Factual Record in the Abortion Cases
Both Roe and Doe were decided without trials or evidentiary records. The factual records consisted merely of a complaint, an affidavit, and motions to dismiss that addressed legal, not factual, issues. In two hour-long hearings, the judges addressed procedural and jurisdictional issues more than they addressed substantive questions. And then a direct appeal to the Supreme Court was made without any intermediate appellate review.
Realizing that Doe’s lack of any evidentiary record was a problem, Sarah Weddington’s co-counsel in the Supreme Court, Roy Lucas, stressed the need to fill that vacuum at a strategy meeting of attorneys in Manhattan in July 1971, as historian David Garrow recounts. Lucas sought to rectify the lack of a factual medical record by filing “a supplementary appendix of more than four dozen prior court rulings and medical journal papers that all-told came to an imposing 477 pages, far larger than the brief itself,” as Garrow has described it. He filled the “supplemental appendix” with sixty articles, fifteen of which dealt with “medical” and “sociological” issues. Nine articles addressed medicine. But none of these nine articles claimed that abortion was safer than childbirth. And none of these was among those that the Court eventually cited. Many of the articles were not peer-reviewed; some were not even published; and none was part of the record. So, the mantra was first presented in the briefs filed in the Supreme Court in the summer of 1971 before the first oral arguments on December 13, 1971. The truth of the claim that “abortion was safer than childbirth” was directly disputed at oral argument, and it was repeatedly pointed out that neither Roe nor Doe had any record.
The mantra was based on abortion mortality numbers from Soviet Bloc countries. But there were no reliable data from these countries, and no reliable data that these rates were comparable or that they showed that “abortion was safer than childbirth.” No existing text book on obstetrics and gynecology claimed that “abortion was safer than childbirth.” Nevertheless, Justices Blackmun and Douglas ended up citing seven medical references between them to support the mantra in Roe and Doe. All except one of the seven sources relied on 1950s statistics from Soviet Bloc countries; but even those were not peer-reviewed studies, just raw numbers. They cited, for example, Tietze’s 1961 JAMA article, but this was merely a report of an international conference on abortion from May 1960 and conversations by the author, Christopher Tietze, with a “Dr. Herschler” about Hungarian data. Another is merely a letter to the editor. Several of the articles do not even claim to compare childbirth mortality and abortion mortality. Finally, there were data from New York City, derived from ten months of New York State’s legalization of abortion after July 1970. But this was hotly disputed for one key reason: 55.5% of the abortions in those months were performed on out-of-state residents who were lost to follow-up, making it impossible to monitor their condition. A one-page clerk’s memo in Justice Blackmun’s papers acknowledged this criticism, concluding that it was “devastating.” But Justice Blackmun merely corrected the clerk’s grammar, as he was known to do, and proceeded to cite the New York numbers in his final Roe opinion. The mantra and the data from the Soviet Bloc countries-were challenged as unreliable by the attorneys for Texas and Georgia in their briefs and at the oral arguments in December 1971, and the rearguments in October 1972.
Impact of the Medical Mantra
Unfortunately, the adoption of the medical mantra by the Court in Roe that “abortion was safer than childbirth” has had at least four negative results.
The Public Health Vacuum
From the 1960s to the 1980s, Henry J. Friendly was considered one of the greatest federal judges to never sit on the U.S. Supreme Court. Friendly served on the U.S. Court of Appeals in Manhattan from 1959 until his death in March 1986. Judge Richard Posner has written that “Friendly’s opinions and academic writings, in field after field, proposed revisions and clarifications of doctrines that time after time the Supreme Court gratefully adopted.” Both Justices William Brennan and John Paul Stevens considered Friendly one of the greatest federal judges. So, it was significant that Friendly was assigned in 1969 to hear a federal court challenge to the New York State abortion law, one of twenty plus cases filed in the federal courts between 1969 and 1972 to challenge state abortion laws. Friendly, who favored the legalization of abortion by the state legislature, drafted an opinion in April and May 1970, which rejected the extension of Griswold v. Connecticut to abortion. He would have upheld the constitutionality of the New York State abortion law.
But Friendly’s draft opinion never saw the light of day.88 When New York State legalized abortion in May 1970, the case was dismissed as moot, and Friendly’s opinion was left in his personal papers for thirty-six years, apparently open to the public but little noticed until 2006. Friendly’s draft opinion stated:
[T]he decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges … The legislature can make choices among [various abortion policies], observe the results, and act again as observation may dictate. Experience in one state may benefit others … In contrast a court can only strike down a law, leaving a vacuum in its place.
That’s exactly what Roe v. Wade did.
The Justices’ medical assumption was directly responsible for the Justices’ prohibition of health and safety regulations in the first trimester, when ninety percent of abortions are done. After Roe and Doe, the Justices proceeded between 1974 and 1980 to affirm invalidation or deny certiorari in three cases with clinic regulations. The implications have been serious, as recent incidents demonstrate:
- Investigative officials in February 2010 found “deplorable and unsanitary” conditions and numerous health and safety violations in the Philadelphia abortion clinic of Dr. Kermit Gosnell. The Philadelphia District Attorney charged Gosnell with murder in the death of an abortion patient. He was tried in March 2013, and convicted on May 13, 2013.
- After Alexandra Nunez died in January 2010 from a botched abortion by Dr. Robert Hosty at his A-l Women’s Center in Queens, New York, the State of New York finally revoked his license two years later.
- In July 2011, a jury in Orlando, Florida awarded $36.7 million in damages against abortion provider Dr. James Pendergraft for profound injuries to a child who survived a late-term abortion.
- In the summer of 2011, the Chicago Tribune found six deaths and 4,000 injuries in Illinois abortion clinics that were never reported to the Illinois Department of Health.
- Healthy twenty-four-year-old Tonya Reaves died in July 2012, at Northwestern Memorial Hospital after an elective abortion at a clinic on South Michigan Avenue in Chicago. A wrongful death suit was filed and settled by Planned Parenthood.
- A healthy twenty-nine-year-old woman, Jennifer Morbelli, died in January 2013, after an abortion at thirty-three weeks of pregnancy at an abortion clinic in Germantown, Maryland.
- Twenty-two-year-old Lakisha Wilson died on March 28, 2014, after complications from an abortion on March 21, 2014, at the Preterm Clinic on Shaker Boulevard in Cleveland, Ohio.
- Though the U.S. Courts of Appeals for the Fourth Circuit and the Fifth Circuit have allowed health and safety regulations to go into effect, in forty years, the Supreme Court has yet to approve health and safety regulations in the first trimester.
The Expansion to Viability (and Beyond) and the Risks of Late-Term Abortions
After Roe and Doe were reargued on October 11, 1972, Justice Blackmun distributed his second draft opinion on November 21, 1972, which emphasized the end of the first trimester (twelve weeks) as the “decisive” limit to the right to abortion. The Justices then began to negotiate over the scope of the abortion right they were creating. By early December, Justices Powell and Marshall had persuaded Justice Blackmun to expand the right by sixteen weeks-four whole months-from twelve weeks to twenty-eight weeks of pregnancy. There was never any briefing, or argument, on viability or its medical implications. The word viability was not mentioned even once during the four hours of argument in December 1971 and October 1972.
Blackmun’s third draft of December 21, 1972, only four weeks before the decisions were publicly released, expanded the right to viability. The scope of the abortion right that the Justices created in Roe and Doe isolates the United States as one of only four nations out of 195 in the world that allows abortion for any reason after fetal viability. Those four are China, North Korea, Canada, and the United States. Although Justice Powell played a pivotal role in influencing Justice Blackmun to expand the abortion right to viability, Justice Powell later told his biographer that Roe and Doe were “the worst opinions I ever joined.”
It is important to recognize that the viability rule is directly connected to the state’s interest in fetal life. The viability rule is about the size and significance of the fetus. But the viability rule was not formulated with any serious consideration of maternal health or the implications for maternal health. There is almost no discussion in Roe or Doe of the implications of expanding the right to viability for maternal health, and there was no evidentiary record to assess the maternal health implications, though the attorney for the Georgia plaintiffs told the Justices that “mortality and complications for late abortions are three times greater, after twelve weeks.” And, in the twenty-nine or so abortion cases considered by the Supreme Court on the merits since Roe, there has been little consideration of the maternal health implications of the viability rule or of late-term abortions.
“Health” Considerations in Supreme Court Abortion Cases Have Been a “One-Way Ratchet”
After adopting the mantra that “abortion is safer than childbirth,” the Justices have operated since Roe with the assumption that “health” concerns are a “one-way ratchet” in favor of access to abortion, based on the assumption that there are only risks from delaying an abortion, and none from abortion itself. Only in 2007 in Gonzales v. Carhart was this “one-way ratchet” finally questioned and largely shelved in favor of a more even-handed examination of health considerations and health data.
Shielding the Justices from New Medical Data and Developments
Justice O’Connor wrote in her Akron dissent in 1983: “[a]s today’s decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the Nation’s lex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.'” With Roe and Doe, the Justices assumed the role of the national abortion control board, but they have no means to monitor the public health impact, as public health officials normally do. The Justices cannot regulate or intervene in public health crises. They cannot monitor new technological developments or review the FDA’s approval of RU486. The Justices are completely passive and dependent on litigation-cases that are selectively appealed to them. And since Gonzales, there has been a concerted effort by abortion advocates to keep abortion cases away from the Supreme Court.
Maternal Mortality Data
The notion that “abortion is safer than childbirth” has become even less tenable since 1973 for at least five reasons: (1) the dysfunctional abortion data reporting system in the United States that relies completely on voluntary reporting; (2) the incomparability of the published abortion mortality rate and the published maternal (childbirth) mortality rate; (3) medical data on the increasing rate of maternal mortality in the second trimester; (4) the growing body of international medical studies finding long-term risks to women from abortion; and (5) maternal mortality data from countries with superior abortion recordkeeping collection and reporting systems, which find a higher rate of abortion mortality than childbirth mortality.
The medical mantra in 1972 was based on the supposed comparison of maternal (childbirth) mortality rates and abortion mortality rates from Soviet Bloc counties. Today, the claim that “abortion is safer than childbirth” is based on the mechanical comparison of the official published abortion mortality rate and the official published childbirth (maternal) mortality rate. There are several reasons why these rates are non-comparable.
There are only two national organizations that collect abortion data: the Centers for Disease Control and Prevention (CDC), a federal governmental agency, and the private Alan Guttmacher Institute (AGI). Reporting of abortion data to both is voluntary. There is no federal law requiring the reporting of abortion data, or complications, or deaths. Because abortion reporting in the United States is completely voluntary, there are only estimates of the number of abortions annually and of the number of abortion deaths. As one researcher noted in 2008, “[m]any state health departments are able to obtain only incomplete data from abortion providers, and in some states, only forty to fifty percent of abortions are reported.” Death certificates have been found to be unreliable. The bottom line is that they are non-comparable because what goes into the numerators and the denominators of each is radically different. This is explained at length in a medical review article published in the January 2013 issue of the online journal Scientifica and in a 2013 article in The Linacre Quarterly.
A 2012 article by Raymond and Grimes-perhaps the latest to make the claim that abortion is safer than childbirth-simply repeats the defective and misleading methodology of the past forty years and fails to demonstrate that abortion is safer for several reasons. It is based on U.S. data, which is unreliable because of the dysfunctional data collection and reporting system in the United States that depends completely on voluntary reporting. It is based on mere estimates of the number of abortions, as reported by the CDC, and estimates of rates; yet the CDC admits that it undercounts abortions by fifteen percent, because abortion reporting to the CDC is voluntary. Consider the fact that several states, like California with one-third of all abortions annually, do not report to the CDC. Raymond and Grimes claim that “[t]he risk of death associated with childbirth is approximately fourteen times higher than with abortion.” But as one careful medical researcher pointed out, “[t]his statement is unsupported by the literature and there is no credible scientific basis to support it.”
In contrast to the unreliable U.S. data, two international studies in the past two years look at maternal mortality data from Chile and Ireland, which both limit abortion. A 2012 study of maternal mortality in Chile relied on fifty years (1957-2007) of official data from Chile’s National Institute of Statistics. The authors looked at factors likely to affect maternal mortality, such as years of education, per capita income, total fertility rate, birth order, clean water supply, sanitary sewer, and childbirth delivery by skilled attendants. They also looked at pertinent educational and maternal health policies, including legislation that has prohibited abortion in Chile since 1989, to assess the effects of these policies on maternal mortality. One of the most striking findings is that, contrary to widely held assumptions, prohibiting abortion in Chile did not result in an increase in maternal mortality. In fact, maternal mortality declined after Chile’s 1989 abortion prohibition was enacted. From 1957 to 2007, the overall Maternal Mortality Ratio or MMR (the number of maternal deaths related to childbearing divided by the number of live births) declined by 93.8%, from 270.7 deaths per 100,000 live births in 1957 to 18.2 deaths per 100,000 live births in 2007. After abortion was made illegal in 1989, the MMR continued to decline-from 41.3 to 12.7 per 100,000 live births (69.2%). Chile has the lowest maternal mortality ratio in Latin America.
A 2012 study of Irish data compared maternal mortality and maternal health trends in Ireland with those in England, Scotland, and Wales. The study compared the populations living in the Republic of Ireland and in Northern Ireland with those in Scotland and England, and examined women’s health trends between 1969 and 2009. The report examined numerous women’s health factors, including fertility, premature birth rates, stillbirth rates, mental health resource usage, medication usage for mental health, breast cancer rates, and immunological disorders. Among the most significant findings are that the rates of stillbirths in the Republic and Northern Ireland are significantly less than similar rates in England and Scotland. Rates of stillbirth per 1,000 live births were 3.8/1,000 in the Irish Republic and 4.1/1,000 in Northern Ireland, compared to 4.9 in England, and 5.1 in Scotland.
The study found similar contrasts in the rates of low-birth weight infants. Low birth weight infants (<2,500 grams) were increased in England and Scotland compared to the Irish Republic (39.7/1,000 live births in the Irish Republic, 56.3/1,000 in England, and 52.3/1,000 in Scotland). These findings are consistent with previous studies that have found higher rates of stillbirths, premature births, and low-birth-weight infants in women with a history of induced abortion.
The Irish study also looked at maternal mortality in Ireland compared to England, Scotland and Wales. Maternal death rates per 100,000 live births were significantly higher in the English/Welsh populations and Scottish populations (10/100,000 in England/Wales, and 10-12/100,000 in Scotland), compared to the Irish population (1-2/100,000 live births in the Irish Republic).
The study also looked at demographic trends in Ireland. While the fall in fertility throughout Europe since 1968 has impacted Ireland, the Republic of Ireland and Northern Ireland continue to show higher fertility rates. The Total Fertility Rate (TFR) is near to 2.0 in both Irish jurisdictions. (This corresponds to a family of two children.) That rate is much higher than the average European TFR (around 1.4) and close to the replacement level of 2.07 TFR. As a result, Ireland has a substantially younger population.
The Irish study suggests, at the very least, that the claim that legal abortion is necessary for improved maternal health is dubious.
Another maternal mortality study published in 2013 looked at all Danish women born between 1962 and 1993. The study found a protective effect from childbirth and found that the higher the number of abortions, the higher the mortality risk for women.
Another study published in 2013 looked at maternal mortality data in Mexico. The authors sought to clarify the data that goes into the numerators and denominators of mortality rates over the past twenty years (1990-2008) in Mexico. They found a substantial drop in maternal deaths and a substantial reduction in abortion-related mortality in Mexico between 1990 and 2010 and that “approximately ninety-eight percent of maternal deaths are related to causes other than illegal induced abortion in Mexico.”
Thus, these three recent medical studies, of abortion prohibitions in Ireland, Chile, and Mexico, suggest that countries with abortion prohibitions have lower maternal mortality rates, better women’s health trends, and better demographic trends than countries with widely-accessible abortion.
IV International Medical Data on the Risks of Induced Abortion
In the twenty years since the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the number of international, peer-reviewed medical studies on the risks from abortion has grown significantly. Medical studies over the last two decades have created substantial data finding significant increased risks after abortion, as a January 2013, medical review article in Scientifica describes in detail.
It is important to handle these data carefully. First, the studies focus on “increased risk” after abortion, which is not the same thing as causation, though increased risk and other indicators may eventually prove causation. Second, some medical studies have found no increased risk after abortion. They need to be taken into consideration.
Increased Risk of Pre-Term Birth (PTB) After Induced Abortion
Nevertheless, there are now more than 140 peer-reviewed studies that have found a statistically significant increased risk in pre-term birth (PTB) after abortion. This has particular relevance for African-American women, who have an “almost twofold higher rate of preterm births.” These studies found an increased risk of PTB after induced abortion among women from more than thirty-five countries, including: Wales, Egypt, the United States, China, Japan, Hungary, Poland, Greece, Britain, Thailand, Australia, Norway, Germany, Finland, France, Italy, Ireland, the Netherlands, Scotland, the Czech Republic, Spain, Slovenia, Romania, Russia, Denmark, Brazil, Botswana, Togo, Taiwan, Nigeria, Iraq, India, Pakistan, Kuwait, Korea, Canada, and Turkey.
A PLOS Medicine study published in July 2013 by Oliver – Williams et al. has been reported as claiming that the increased risk of pre-term birth after induced abortion has been eliminated by modern methods of abortion. But the actual study falls short of making that claim and seems to suffer from a number of methodological flaws. (The authors start by admitting what has been denied by so many for so long: “Numerous studies have demonstrated that therapeutic termination of pregnancy (abortion) is associated with an increased risk of subsequent preterm birth”). The abortions were self-reported from personal interviews (not drawn from medical record data or linked to the specific patient). That seems unusual for data from Scotland, where the government pays for abortions and keeps individual records. The abortion methods (chemical v. surgical) were not actually connected with the individual women, preventing the researchers from knowing which type of abortion the women had or even whether they experienced PTB. So, the authors’ conclusion that shifting from surgical to chemical abortions eliminated the risk of PTB is no more than a guess and not a finding drawn from scientifically observed evidence. The authors emphasize the technique of pre-treating of the cervix prior to abortion as supposedly reducing the risk of PTB, but there was no data to connect this. It was merely the authors’ hunch. Consequently, the Oliver-Williams study hardly dispels the findings of more than 140 international studies from more than thirty countries finding an increased risk of PTB after abortion.
Increased Risk of Mental Trauma After Induced Abortion
Whether negative mental health outcome is associated with induced abortion is one of the most hotly debated questions in medicine today. There are studies on both sides of the question. The studies and the data have to be handled carefully. No one study settles a medical question. And association does not mean causation.
Nevertheless, many would be surprised to learn that there at least ninety-nine international, peer-reviewed, statistically significant studies that have found an increased risk of mental trauma after induced abortion. A 2013 forty-year review essay published in Scientifica reviewed the existing data on three reputed long-term risks of induced abortion: pre-term birth, breast cancer, and mental trauma. The author cited the numerous studies that have found an increased risk of mental trauma after induced abortion.
A study published in September 2011 in the British Journal of Psychiatry (BJP) critically reviewed the results of twenty-two previous studies on abortion and mental health published between 1995 and 2009. The results revealed a moderate to high increased risk of mental health problems after abortion. This study has sparked a contentious debate in the literature.
Two possible objections to studies finding an increased risk are that they fail to include appropriate comparison group(s) and that they fail to control for pre-existing conditions, and much of the debate centers on these factors. Four subsequent studies and reviews, by Charles, Robinson, one written for the Royal College of Psychiatrists (RCP), and by Steinberg have challenged the 2011 BJP study. But each has weaknesses of its own.
A 2013 study by researcher David Fergusson reviewed the 2011 BJP study and other studies published since 2011 criticizing the BJP study. Fergusson concluded that “there is no available evidence to suggest that abortion has therapeutic effects in reducing the mental health risks of unwanted unintended pregnancy. There is suggestive evidence that abortion may be associated with small to moderate increases in risks of some mental health problems.” Despite the ongoing debate, there remain a number of well-done studies that have found an increased risk of mental trauma after abortion.
Increased Risk of Breast Cancer from the Loss of the Protective Effect of a First Full-Term Pregnancy
The claim that abortion increases the risk of breast cancer is also vigorously debated. It has long been acknowledged that a first full-term pregnancy provides a measure of protection against breast cancer.
Yet, there have been seventy international, peer-reviewed studies that have addressed the association since at least 1957. At least thirty-three have found an increased risk of breast cancer after induced abortion.
All of these preceded the Huang study. A November 2013 study by Huang et al. of Chinese women published in Cancer Causes & Controls looked at the association between abortion and breast cancer. The meta-analysis by Huang et al. examined the findings and quality of thirty-six studies (consisting of two cohort studies and thirty-four case control studies) from fourteen provinces in China that had been previously published. The authors acknowledged that “Chinese females historically had a lower risk of breast cancer compared to their counterparts in the USA and other Western countries.” Citing a 2012 Chinese study by Li, the authors noted that “the incidence of breast cancer in China had increased at an alarming rate over the past two decades” and that this “marked change in breast cancer incidence was paralleled [sic] to the one-child-per-family policy,” citing a 2002 Chinese study by Qiao. This new study was undertaken, at least in part, due to conflicting results in prior studies by Brind (1996) and Beral (2004) and due to conflicting results in prior Chinese studies.
Citing three studies by Russo & Russo (1987), Kelsey (1979), and Kelsey (1981), the authors noted that prior “experimental data” provided a plausible biological reason for an association between induced abortion and an increased risk of breast cancer:
During the first trimester of pregnancy, hormonal changes propel newly produced breast cells through a state of differentiation, a natural maturing process which greatly reduces the risk of breast cancer in the future. An interruption of this process by abortion will arrest this process before differentiation occurs, greatly raising the future risk of breast cancer in the future.
The authors were also careful to distinguish induced abortion from spontaneous abortion.
The authors concluded that “overall, this systematic review of thirty-six studies with different designs and conducted across a wide range of regions in China revealed that induced abortion (IA) was significantly associated with an increased risk of breast cancer among Chinese females. The risk increased as the number of LA increased.” This is referred to by statisticians as a “dose-response” or “dose-effect”; the stronger the exposure (dose) to the agent, the greater the increased risk. And the authors noted that previous studies supported this dose-effect, finding that the risk increased as the number of abortions increased.
The Huang study found a “dose-response.” Thus, one prior induced abortion increased the breast cancer risk by forty-four percent. With two prior induced abortions, they found a seventy-six percent increased risk. And with three prior induced abortions, they found an eighty-nine percent increased risk. (Each finding was statistically significant, meaning that it was not due to chance alone.)
The authors noted an important difference between induced abortion in the United States and in China, which may help explain the biological association. Since abortion in the United States is often to prevent a first birth, whereas abortion is used in China to prevent a second birth under the one-child policy, “the protective effects of early childbirth will probably dilute the harmful effect of more LAs [induced abortions].” The authors noted that further research was needed because of certain limitations in their study.
Placenta Previa
Placenta previa is the condition when the placenta settles low in the mother’s uterus, covering the cervical canal. If it remains in this position in late pregnancy, it can have serious risks for mother, including hemorrhaging, and for the child, including increased risk of sudden infant death syndrome and risks from prematurity if a premature delivery is required. A 2003 review of the literature located three studies that found an increased risk of placenta previa after abortion. A fourth study was published in 2003, which found an increased risk of placenta previa after abortion.
These studies do not settle these medical and scientific questions, though they provide evidence of increased risks of various kinds. At the same time, no studies have yet refuted the findings of increased risk of pre-term birth, or mental trauma, or breast cancer after an abortion. More studies are clearly needed, and more can be expected from various countries with better abortion data recordkeeping and collection than exists in the United States.
V Isaacson v. Horne, the Medical Assumption, and the Viability Rule
The mistakes made by the Justices during the deliberations in Roe and Doe, including the notion that “abortion is safer than childbirth,” are directly relevant to the Court’s consideration of state abortion regulations in future abortion cases. The Court in Gonzales v. Carhart in 2007 upheld the constitutionality of the federal Partial-Birth Abortion Ban Act (PBABA). But, as a number of scholars have pointed out, the Court expressed concern with late-term abortions and, in dictum, suggested that the states should have greater deference to limit late-term abortions. The Court’s dicta gave greater deference to the states and concluded that the states have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
The twenty-week limit in Isaacson v. Horne might have given the Court the opportunity to apply Gonzales and review the factual assumption that “abortion is safer than childbirth,” because medical data show that the maternal mortality rate from abortion increases significantly in the second trimester. Horne could have given the Court the opportunity to reassess its factual assumption that drove the superstructure of Roe in light of contemporary medical data in the context of late-term abortions.
In the approximately thirty abortion cases that the Court has decided on the merits since 1973, the Court has rarely addressed the risks to women from abortion based on medical evidence in a trial record. Instead, the Court has stated that the public has an interest in protecting maternal health, but only in the abstract, as in the Casey decision in 1992, where the Court said that “[Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Future cases may create an opportunity for the Supreme Court to review a real record on the risks of abortion to women, and the unregulated public health vacuum that the Court has allowed for forty years.
Reexamination of the medical mantra in Roe also raises some larger questions about the future of the Supreme Court and abortion. There are now four challenges to the mantra that “abortion is safer than childbirth”: (1) fundamental challenges to the dysfunctional abortion reporting system here in the United States where all data reporting is voluntary, (2) maternal mortality data showing an increasing rate of maternal mortality from abortion after the first trimester, (3) the growing body of international data on the long-term risks to women from abortion, and (4) maternal mortality data from other countries with better data collection and recordkeeping that show a higher rate of abortion mortality than maternal mortality.
Those challenges set up some possible paradigm shifts. How will the maternal mortality data and long-term risks data affect the consideration of maternal “health”? Will some sort of analysis balancing the risks of “delay” with the risk to women from the abortion be required? Will providers be required to demonstrate that the risks of not having the abortion outweigh the risks of having the abortion? If advocates contend that the principle underlying Roe is autonomy, not the relative safety of abortion, will the Supreme Court dismiss the data on the relative risks from abortion? Or will the Court allow the states to regulate or prohibit abortion at some gestational stage if providers cannot demonstrate that the risks of not having the abortion outweigh the risks of having the abortion? Unfortunately, the new paradigm will not be addressed in Horne, which was denied certiorari by the Supreme Court in January of 2014.
Conclusion
Federal Judge Henry Friendly put his finger on the Supreme Court’s errors in 1978 when he criticized the Court for the use of medical data in Roe and Doe that were not part of any record. He wrote:
[T]he main lesson I wish to draw from the abortion cases relates to procedure-the use of social data offered… for the first time in the Supreme Court itself…. The Court’s conclusion in Roe that ‘mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth’ rested entirely on materials not of record in the trial court, and that conclusion constituted the underpinning for the holding that the asserted interest of the state ‘in protecting the woman from an inherently hazardous procedure’ during the first trimester did not exist.
Friendly continued,
If an administrative agency, even in a rulemaking proceeding, had used similar materials without having given the parties a fair opportunity to criticize or controvert them at the hearing stage, reversal would have come swiftly and inexorably … The Court should set an example of proper procedure and not follow a course which it would condemn if pursued by any other tribunal.
These concerns, and the growth in international medical data over the past two decades since Casey, should counsel the Supreme Court to give greater deference to the states in their attempt to protect maternal health.