|SUPREME COURT OF NORTH DAKOTA|
|Supreme Court No. 20030023|
|Cass Co. No. 99-C-03734|
|Amy Jo Kjolsrud f/k/a|
|Amy Jo Mattson,|
|Plaintiff / Appellant,|
|MKB Management Corporation|
|d/b/a Red River Women's Clinic,|
|Defendant / Appellee.|
|Appeal from Final Judgment Entered|
|by Cass County District Court|
BRIEF FOR APPELLANT
|John Kindley (Non-Resident)||Gregory L. Lange #03491|
|P.O. Box 1406||P.O. Box 488|
|Mishawaka, IN 46546||Hazen, ND 58545|
|(574) 514-5528||(701) 748-2206|
|ATTORNEYS FOR APPELLANT|
TABLE OF CONTENTS
I. Table of Authorities 3
II. Statement of the Issues Presented for Review 4
A. Is the defendant abortion clinic violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and breast cancer risk? 4
B. If so, what is the most appropriate and equitable remedy? 4
III. Statement of the Case ¶1
A. Pre-Trial Proceedings in the District Court ¶2
B. Summary of Trial Proceedings and Testimony ¶6
C. Statement of the Facts ¶20
1. Epidemiological Evidence of a Causal Relationship ¶21
2. Biological Explanation for a Causal Relationship ¶25
3. Evidence for a Causal Relationship from Studies on Laboratory Animals ¶26
4. Clinical Evidence of a Causal Relationship ¶29
5. Consideration of Potential Non-Causal Explanations for the Relationship ¶30
IV. Argument ¶32
A. The Clinic is violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and breast cancer risk. ¶35
1. The findings of the trial court are reviewed de novo. ¶35
2. The Clinic's brochures are untrue and misleading. ¶36
a. There is evidence of a causal relationship between abortion and breast cancer. ¶36
b. Abrogating the protective effect of carrying a pregnancy to term by aborting the pregnancy is also a cause-in-fact of breast cancer in many cases. ¶50
3. The Clinic knows or should know its statements are untrue and misleading. ¶55
B. The most appropriate remedy for the Clinic's false advertising is an injunction requiring it to inform prospective customers about the evidence it is currently denying in its commercial brochures. ¶58
V. Conclusion ¶70
TABLE OF AUTHORITIES
Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Authority, 148 F.3d 242 (3rd Cir. 1998) ¶56
Consumers Union of U.S., Inc. v. Alta-Dena Cert. Dairy, 6 Cal.Rptr.2d 193 (Cal.App. 1 Dist. 1992) ¶¶65,66
Fargo Women's Health Org., Inc. v. FM Women's Help and Caring Connection, 444 N.W.2d 683 (N.D. 1989) ¶59
Fargo Women's Health v. Larson, 381 N.W.2d 176 (1986) ¶¶65,68
Federal Trade Comm'n v. National Commission on Egg Nutrition, 517 F.2d 485 (7th Cir. 1975) ¶49
Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995). ¶35
Harbeson v. Parke Davis, Inc., 746 F.2d 517 (9th Cir. 1984) ¶¶56,63
Jaskoviak v. Gruver, 2002 ND 1, 638 N.W.2d 1 ¶¶62,67
Planned Parenthood v. Casey, 947 F.2d 682, 505 U.S. 833 (1992) ¶¶64,71
State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901 (N.D. 1986) ¶59
Winkjer v. Herr, 277 N.W.2d 579 (N.D. 1979) ¶62
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265 (1985) ¶64
Abortion Control Act, NDCC 14-02.1-02 ¶67
False Advertising Statute, NDCC 51-12 ¶2,32,55
Federal Judicial Center, Reference Manual on Scientific Evidence (2000) ¶¶42-44,48,51
John Kindley, The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 Wis. L. Rev. 1595. ¶¶60,61
Kenneth J. Rothman, Inferring Causal Connections Habit, Faith or Logic?, in Causal Inference (ed. Kenneth J. Rothman) (1988) ¶¶40,41
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. Is the defendant abortion clinic violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and breast cancer risk?
II. If so, what is the most appropriate and equitable remedy?
STATEMENT OF THE CASE
1. The district court found in a bench trial that the defendant abortion clinic is not violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and increased breast cancer risk. The plaintiff appeals, contending that a substantial body of scientific evidence linking abortion with increased breast cancer risk demonstrates that the brochures are untrue and misleading. The plaintiff seeks on behalf of the general public an injunction restraining the defendant from stating or implying that there is no evidence of a causal relationship between abortion and increased breast cancer risk, and requiring it to inform women considering abortion about this evidence prior to performing any abortion.
Pre- Trial Proceedings in the District Court
2. The plaintiff commenced this lawsuit by service of the Summons and Complaint on December 15, 1999. The case was filed in Cass County District Court, and was assigned to Judge Michael O. McGuire. The Complaint alleged that Defendant MKB Management dba Red River Women's Clinic ("the Clinic") was violating North Dakota's False Advertising Statute, N.D.C.C. 51-12-08, by publishing and distributing the following statement in its commercial brochures: "Anti-abortion activists claim that having an abortion increases the risk of breast cancer and endangers future childbearing. None of these claims are supported by medical research or established medical organizations." (Emphasis in original.) The Complaint alleged that this statement was untrue and misleading because substantial medical research in peer-reviewed medical journals supports the claim that having an abortion increases breast cancer risk, and sought injunctive relief on behalf of the general public. Plaintiff Amy Jo Mattson, whose married name is now Amy Kjolsrud, did not allege that she was personally misled or harmed by the Clinic's brochure, but maintained standing pursuant to section 51-12-14 of the Statute, which allows "any person" to sue for injunctive relief on behalf of the general public. The Clinic nevertheless made a Motion to Dismiss based on standing, which on January 19, 2000 was denied by the district court based on the language of the Statute and North Dakota case law interpreting the Statute.
3. Plaintiff filed a Supplemental Complaint on July 25, 2000, alleging that the Clinic had disclosed in discovery that it had ceased using the challenged language in the Original Brochure and was now using a brochure ("the Current Brochure") which includes the following statement: "Some anti-abortion activists claim that having an abortion increases the risk of developing breast cancer. A substantial body of medical research indicates that there is no established link between abortion and breast cancer. In fact, the National Cancer Institute has stated, '[t]here is no evidence of a direct relationship between breast cancer and either induced or spontaneous abortion.'"
4. The Supplemental Complaint requests an injunction restraining the Clinic from distributing either the Original or the Current Brochure and from stating that there is no research or evidence supporting the hypothesis that abortion increases breast cancer risk, and requiring the Clinic to affirmatively disclose the evidence of a relationship. An Amended Supplemental Complaint was filed on May 9, 2001 to reflect immaterial changes in Plaintiff's residence and occupations.
5. Trial was held March 25 through March 28, 2002.
Summary of Trial Proceedings and Testimony
6. Plaintiff called as an adverse witness at trial the Clinic's Administrator, Jane Bovard. Ms. Bovard's testimony established that a complaint about the Original Brochure had been filed with the North Dakota Attorney General's office prior to the filing of this lawsuit, but that nothing came of the complaint. See Transcript at page 61, lines 3-8 [hereinafter T. p. 61, l. 3-8]. Ms. Bovard testified that she stopped using the Original Brochure when the lawsuit was filed, and has no intention of using the language in that brochure again, because she thinks "there's more up to date and better language than that." T. p. 61, l. 11-21.
7. Ms. Bovard's testimony also established that the statement attributed to the National Cancer Institute (NCI) in the Current Brochure, that "there is no evidence of a direct relationship," was taken from a 1996 NCI fact sheet on abortion and breast cancer. See T. p. 43-44. However, at the time the Clinic adopted the language in the Current Brochure in early 2000, a revision of the NCI fact sheet dated June of 1999 did not include the sentence quoted in the Current Brochure, instead stating that "evidence of a direct relationship between breast cancer and either induced or spontaneous abortion is inconsistent." See T. p. 50; 52-53. Ms. Bovard testified that she thought "we had gotten the most up to date" fact sheet, but that apparently they had not. T. p. 55, l. 15-19.. Yet, the Current Brochure was still in use by the Clinic at the time of trial. See T. p. 39, l. 12-16. The Clinic also continues to regularly tell women considering abortion that "abortion is . . . many times safer than a full term delivery." T. p. 625, l. 15-21.
8. Plaintiff called as an expert witness at trial Dr. Joel Brind. Dr. Brind is a professor of biology and endocrinology, which is the study of hormones, at the City University of New York, as well as the lead author of a "comprehensive review and meta-analysis" of the epidemiological studies examining the relationship between abortion and breast cancer that was published in 1996 by the British Medical Association's Journal of Epidemiology and Community Health. See T. p. 79, l. 1-17; p. 86, l. 14-17. Dr. Brind testified that having an abortion increases a woman's risk of breast cancer, relative to what it would be if the pregnancy is not terminated, in two independent ways: first, it abrogates the protective effect of cell differentiation that occurs in about the last 8 weeks of a full-term pregnancy; and second, it does so at a time when the estrogen-mediated proliferation of undifferentiated cells during the pregnancy has left the breasts with a higher number of cells susceptible to cancerous mutation than were there before the pregnancy. See T. p. 119-22.
9. After testifying to and explaining several different lines of evidence supporting a causal relationship between abortion and increased breast cancer risk, Dr. Brind testified that in his opinion, the Clinic's Original Brochure is "not only untrue, it's patently absurd. We see a large body of studies, many of them showing a statistically significant connection. You see experimental studies, you see the hormonal evidence about the difference between normal and spontaneously interrupted pregnancies. The idea that there is, you know, that none of these claims are supported by medical research is, well as I said, just it's just absurd." T. p. 186, l. 6-15..
10. Dr. Brind likewise testified that the Clinic's Current Brochure is untrue and misleading: "The [1996 NCI] fact sheet that said there was no evidence I don't think was up for very long. Someone realized that that was quite in error. And that was that came down in '96. . . . As I mentioned before that kind of statement is absurd to say there's no evidence. There's plenty of evidence. There's arguments about whether it's convincing, whether it's correct, whether it's subject to bias and all that. But there's certainly lots of evidence from many different lines of evidence." T. p. 192, l. 11-24.
11. Following Dr. Brind's testimony, the Plaintiff offered into evidence publications by the Departments of Health of Texas, Louisiana, Kansas and Mississippi, published pursuant to state informed consent statutes, each of which states in essence that "several" studies have found a higher risk of breast cancer after abortion, while other studies have not. See T. p. 267, l. 12-15; Plaintiff's Exhibit Nos. 14-17. These publications were offered as a counterbalance to statements made by the National Cancer Institute and other organizations that were offered by the Clinic at trial, and to provide one possible line of guidance to the court for framing an appropriate remedy for the Clinic's false advertising. See T. p. 268, l. 3-16. The trial court nevertheless ruled that these state health department publications "appear to be irrelevant in this false advertising case," and did not receive them into evidence. T. p. 632, l. 9-15.
12. At the close of the Plaintiff's case in chief, the Clinic moved for judgment as a matter of law. The district court denied the motion, finding that "the Plaintiff has submitted substantial evidence on each and every element necessary for its case." T. p. 281, l. 23-25.
13. The Clinic called as an expert witness in the area of reproductive endocrinology Dr. Gil Mor, an assistant professor of obstetrics and gynecology at Yale University School of Medicine. See T. p. 284, l. 10-12. Dr. Mor would not speak to the epidemiological evidence, but testified that "There is not enough or there is no biological evidence to support any hypothesis linking abortion to breast cancer." T. p. 345, l. 15-17.
14. During the cross-examination of Dr. Mor, the trial judge read aloud in court the Clinic's Response to Plaintiff's Request for Admission No. 2: "Defendant states that it understands that the weight of evidence indicates that having a first full term pregnancy before age 30 is protective against breast cancer in later life. However, there may be an increase in breast cancer risk for several years after first pregnancy before age 30 and after any pregnancy." T. p. 379, l. 6-12. Dr. Mor agreed that "the weight of evidence indicates that having a first full term pregnancy before age 30 is protective against breast cancer in later life," and that this protective effect is lost if that pregnancy is interrupted by an abortion. T. p. 381, l. 5-14. On the other hand, Dr. Mor testified that he does not agree that there is an increase in breast cancer risk for several years after a first pregnancy before age 30 or after any pregnancy. See p. 376, l. 14-18.
15. The Clinic then called as an expert witness in the area of epidemiology Dr. Polly Newcomb. However, after completing her direct examination and part of her cross-examination, Dr. Newcomb did not return to court the next day to finish her cross-examination, and so her entire testimony was struck from the record by the trial court. See T. p. 437, l. 8-9.
16. The Clinic also called as an expert witness Dr. Julie Palmer, an epidemiologist at Boston University. See T. p. 440, l. 14-18. Dr. Palmer expressly admitted that "the whole point of epidemiological research is to provide evidence for or against a causal hypothesis," and that a number of epidemiological studies have provided support for a causal relationship between abortion and breast cancer. See T. p. 518, l. 1-12; p. 538, l. 12-15; p. 539, l. 6-14. Yet, she also testified that there is no evidence of a causal relationship between abortion and breast cancer. See T. p. 537, l. 7-9. Dr. Palmer explained that those epidemiological studies that found a positive association are "evidence on the subject, and in the subject area of induced abortion and breast cancer. It's part of the information that's available. So it's it's a piece of evidence about that subject. But it's not evidence of a direct relationship, you know, which means a causal relationship. That I guess that's the difference." T. p. 537-38.
17. The trial court issued its decision from the bench, finding that the Clinic's information "is not untrue or misleading in any way," and that "the Clinic certainly is with the majority at this time." T. p. 673, l. 12, 24-25. The court stated: "I like Ms. Palmer's statement that there's evidence on the subject of risk but there's not evidence of a causal relationship between induced abortion and breast cancer. So the causal relationship has never been established yet." T. p. 674, l. 8-12.
18. In rendering its opinion, the trial court apparently confused the established long-term protective effect of a full-term pregnancy with the possible small increase in breast cancer risk for "several years" following any pregnancy. See T. p. 671, l. 25; p. 672, l. 22. Counsel for the Clinic was in part responsible for the trial court's confusion on this point: "THE COURT: And when you say long term protective benefit you're not referring to you're referring to a long term pregnancy furnishing a temporary protective benefit? MS. ROSENTHAL: Exactly, Your Honor." T. p. 664, l. 16-20.
19. The trial court awarded the Clinic its costs, and an Amended Costs Judgment in the amount of $30,606.65 was entered against Plaintiff on December 2, 2002 following a hearing on Plaintiff's Objections to Costs. The trial court denied the Clinic's request for attorney's fees, finding that "[t]he Plaintiff's case, in the Court's opinion, was obviously not a false and frivolous pleading. And they presented their case well and documented it as they deemed appropriate and so I find no frivolity there." T. p. 677-78. Plaintiff filed a Notice of Appeal on January 16, 2003.
Statement of the Facts
20. Throughout the trial, numerous undisputed facts were presented which make the existence of a causal relationship between breast cancer and abortion more probable than it would be without the facts, including positive associations reported in epidemiological studies, clinical observations of the hormonal changes that occur in pregnancy, and microscopic observations of human and animal tissue. One of these facts is the undisputed protective effect of a first full-term pregnancy before age 30. This protection is lost if the pregnancy is aborted, causing the woman's subsequent risk of developing breast cancer over her lifetime to be higher than it would have been if the pregnancy was not terminated. The evidence discussed below is for the additional, independent effect that aborting any pregnancy has on breast cancer risk.
Epidemiological Evidence of a Causal Relationship
21. Epidemiological studies calculate the magnitude of an association between an exposure and a disease using a measure called "relative risk." See Testimony of Dr. Palmer, T. p. 445-46. Relative risk is the ratio of the incidence or risk of disease in an exposed group relative to the incidence or risk of disease in the unexposed group. See id. p. 446, l. 2-6. A relative risk of 1.0 means the risk is the same in the exposed as in the unexposed group, while a 1.5 would mean that the risk in the exposed group is 1.5 times as great as in the unexposed group. See id. l. 7-12.
22. The purpose of epidemiology is to provide evidence for or against a causal relationship between an exposure and a disease. See id. p. 518, l. 1-3. Although an association found in an epidemiological study does not necessarily mean there's a causal link, it provides "one piece of evidence" of a causal link. See id. l. 5-12. Factors which are important in judging the likelihood that a statistical association reflects a causal link include biological plausibility; consideration of potential non-causal explanations; dose-response effect; and "statistical significance." See id. p. 529-30.
23. Statistical significance is the factor that tells you how likely it is that an association found in an epidemiological study is simply due to chance. See id. p. 451, l. 1-3. An epidemiological finding is customarily called statistically significant if its "confidence interval" does not include 1.0, or unity. See Testimony of Brind, T. p. 143-45. A confidence interval is calculated from a mathematical formula that takes into account the strength or magnitude of the association and the size of the study, producing a range in which the true relative risk is likely to lie. See Palmer, T. p. 448, l. 15-23. As a matter of convention, the degree of certainty calculated by the formula is 95 percent. For example, if a study reports a relative risk of 1.5 and a confidence interval of 1.2 to 1.9, this means that there is 95 percent confidence that the true (i.e. not due to chance) relative risk lies somewhere in that range, and this result is considered statistically significant because the range does not include 1.0. See id. p. 448-49. A result in which the lower bound of the confidence interval equals 1.0 is often referred to in the scientific community as being "borderline" statistically significant. See id. p. 527, l. 6-13.
24. Dr. Joel Brind testified that as of the date of trial twenty-eight of the thirty-seven studies published worldwide (including thirteen of the fifteen studies on American women) which present specific data on induced abortion and breast cancer incidence reported an overall relative risk greater than 1.0 among women who had one or more induced abortions. See T. p. 147, l. 22-23. He further testified that seventeen of these twenty-eight positive studies were statistically significant on their own. See id. l. 23-25. Dr. Palmer, on the other hand, testified on direct examination that she had reviewed the literature and that "[a]t most 7 or 8 or possibly 9 show some evidence of a positive association. And the others are null. . . . I mean, this is out of 20 plus studies." T. p. 485, l. 16-19. On cross-examination, however, Dr. Palmer acknowledged awareness of at least 10 studies which not only found a positive association but also achieved statistical significance or borderline statistical significance, while exhibiting a lack of certainty regarding the more recent studies. See id. p. 527-28. Moreover, on three occasions during the course of her direct examination Dr. Palmer described as finding "no association" studies which according to her own testimony did find positive associations, at least one of which was borderline statistically significant, despite acknowledging on cross-examination that even positive associations which, because of the strength of the association or the size of the study, do not reach statistical significance or borderline statistical significance nevertheless constitute probative evidence. See id. p. 454, l. 3-8; p. 479-80; p. 492-93; p. 545-46.
Biological Explanation for a Causal Relationship
25. Dr. Palmer acknowledged in her testimony that a causal link between induced abortion and increased breast cancer risk is "biologically plausible." See id. p. 530, l. 16. The first paragraph of an epidemiological study which Dr. Palmer considers "authoritative" on the subject of abortion and breast cancer, the 1997 Melbye study, briefly describes the biological mechanisms by which an induced abortion may cause an increase in breast cancer risk: "A full term pregnancy increases a woman's short term risk of breast cancer possibly as a result of the growth enhancing properties of pregnancy induced estrogen secretion. By contrast, such a pregnancy decreases the long term risk of breast cancer perhaps by inducing terminal differentiation of the susceptible mammary cells. Studies in animals suggest that the potential for terminal differentiation of breast cells is lower for pregnancy terminated by abortion than for a full term pregnancy. On this basis Russo and Russo have proposed that a full term pregnancy allows complete differentiation of breast cells thereby protecting against cancer; whereas an abortion forestalls the late protective effect of differentiation therefore increasing the risk of breast cancer." See id. p. 472; 534-35.
Evidence for a Causal Relationship from Studies on Laboratory Animals
26. Dr. Brind elaborated on Jose and Irma Russo's landmark 1980 study in testimony that was uncontradicted by the Clinic's experts. In a controlled experimental setting some rats were never allowed to get pregnant, some rats were allowed to get pregnant and complete the pregnancy, and some rats were allowed to get pregnant but the pregnancy was then surgically aborted. See T. p. 130, l. 9-15. All of the rats were then subjected to a chemical carcinogen. None of those rats who were allowed to have a complete pregnancy developed breast cancer, whereas among those who were not allowed to get pregnant at all about 65 percent of them got breast cancer and even more, almost 80 percent of the ones who had surgical abortion, developed breast cancer. See id. l. 15-24.
27. Although there was not a statistically significant difference in the 1980 Russo and Russo study between the virgin rats and the rats whose pregnancies were aborted, the real evidence for the independent effect of induced abortion on breast cancer risk in this study was not the quantitative evidence but the qualitative, biological evidence also presented as part of the study. See id. p. 263, l. 7-21. The researchers dissected the rats' breasts at various points during the study, and presented pictures showing the number of differentiated structures and undifferentiated structures in the breast at different points for each group of rats. See id. The underlying biology was thus fleshed out by the very careful microscopic work and descriptive work that is also an important part of this study. See id. p. 263-64.
28. Many other authors of epidemiological studies besides Melbye et al. have cited the 1980 Russo and Russo study as providing biological support for the hypothesis that abortion increases breast cancer risk in humans, including the Clinic's own expert witnesses. The 2000 Newcomb study cites the 1980 Russo and Russo study for the following two propositions: "There are some biologic reasons to believe that pregnancy termination could be associated with increased risk of breast cancer including greater proliferation of undifferentiated susceptible cells;" "[S]ome laboratory data appear to support an association between less then full term pregnancies and breast cancer risk." See Palmer, T. p. 531, l. 16-22; p. 533, l. 5-13. The 1997 study by Dr. Julie Palmer et al. states: "Based in part on data from studies on rats it has been postulated that interruption of a pregnancy before differentiation takes place may increase the risk of breast cancer in humans." See id. p. 584, l. 11-19.
Clinical Evidence of a Causal Relationship
29. Dr. Brind testified at trial regarding estrogen levels during pregnancy and several studies which show a clear difference in estrogen levels between normal pregnancies and those which end in spontaneous abortion, or miscarriage. Miscarriages are typically characterized by estrogen levels not rising as they do in a normal, healthy pregnancy, which is consistent with the epidemiological observation that miscarriages are generally not associated with increased breast cancer risk. See T. p. 122-29.
Consideration of Potential Non-Causal Explanations for the Relationship
30. Despite this biologically plausible explanation for the positive statistical association between abortion and breast cancer found in epidemiological studies, with supporting experimental data, Dr. Palmer tries to explain away these findings by postulating that "recall bias" is occurring in the case-control studies of the abortion-breast cancer link. She hypothesizes that the cases, those women in the study with breast cancer, may be less likely than the healthy controls to deny or "underreport" having had an abortion that they have in truth had, thus artificially inflating the relative risk found by the study. See T. p. 455-56.
31. Dr. Brind summarized the evidence for and against recall bias as follows:
"And recall bias I mean, there's just so much evidence against it and really no credible evidence for it. The only two studies that were capable of looking at it directly, one claimed to find recall bias but it had to assume that women who had breast cancer over reported abortions; and the other one didn't find any. And these other studies which ruled it out for other reasons I mean make a very strong case that recall bias simply cannot explain it. Recall bias is a kind of bias that can happen in a case control study. It can happen either way. Either the cases or the controls might be more likely to report their history of abortion or any other exposure. It is a valid hypothesis which needs to be tested and it has been tested repeatedly and there is no credible evidence that it applies." Id. p. 177-78. See also Palmer, T. p. 458-59, p. 540-84; Brind, T. p. 160-61, p. 174-85.
32. As discussed below, the above facts demonstrate that the Clinic is violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and breast cancer. North Dakota's False Advertising statute, section 51-12-08, NDCC, prohibits any person from disseminating before the public with intent to perform services any statement concerning such services "which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading."
33. The Clinic's statements are untrue and misleading because they are contradicted by two facts, which both link having an abortion with an increased risk of breast cancer. First, it is well established that, at least for childless women under age 30, having an abortion increases breast cancer risk relative to what it would be if the pregnancy is not terminated, by abrogating the protective effect that would have naturally resulted from carrying the pregnancy to term. Second, the denial in the Clinic's brochures of the existence of any research or evidence supporting the claim that abortion increases breast cancer risk is also flatly contradicted by the fact that the numerous published studies discussed above provide such evidence of increased risk, independently of the increased risk due to an abortion's abrogation of the protective effect of full-term pregnancy. The Clinic knows, or should know, that these statements in its commercial brochures are untrue and misleading.
34. As discussed below, the most appropriate and equitable remedy for the Clinic's false advertising is an injunction restraining the Clinic from stating or implying that there is no evidence of a relationship between abortion and breast cancer, and requiring it to inform women considering abortion about this evidence prior to performing any abortion. Given that consumers ordinarily assume, unless informed otherwise, that the products or services they are purchasing are safe, and given that the Clinic's Administrator has testified at trial that she regularly tells women considering abortion that abortion is many times safer than childbirth, requiring affirmative disclosure of those facts the Clinic is now denying in its commercial brochures is, far from being an extraordinary remedy, the minimum requirement necessary to protect women from being misled.
The Clinic is violating North Dakota's False Advertising Statute by stating in its commercial brochures that there is no evidence of a causal relationship between abortion and breast cancer risk.The findings of the trial court are reviewed de novo.
35. The facts relevant to the issues presented for review are not in dispute. Where there is no dispute or conflict in evidence, the finding of the trial court that advertisements are not in violation of the applicable provisions of the false advertising statute amount to conclusions of law and are reviewed de novo. Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995).
The statements in the Clinic's commercial brochures are untrue and misleading.
There is evidence of a causal relationship between abortion and breast cancer.
36. Dr. Joel Brind testified that the statement about abortion and breast cancer in the Clinic's Original Brochure is "not only untrue, it's patently absurd." T. p. 186. Neither the Clinic's attorneys nor its experts made any attempt to rebut this testimony or defend the Original Brochure. Instead, the Clinic affirmed that it had "abandoned the first brochure and . . . has no intention of using that language again," and argued that therefore Plaintiff's claim with regard to the Original Brochure is moot. T. p. 662. The district court correctly ruled, however, that a defendant's voluntary cessation of a challenged activity does not suffice to moot a case. T. p. 674-75.
37. While the Clinic appears to implicitly acknowledge the falsity of its Original Brochure, the Clinic's Current Brochure conveys to the reader the very same meaning and impression as the Original Brochure that there is absolutely no evidence or medical research supporting the hypothesis that abortion increases a woman's risk of breast cancer.
38. The first two sentences in the relevant paragraph of the Clinic's Current Brochure are each half truths which set up and reinforce the third sentence, by suppressing important facts which are then explicitly denied by quoting the statement from the 1996 NCI fact sheet. By stating in the first sentence the half-truth that "some anti-abortion activists" claim that there is a link, the reader is given the false impression that such activists are the only ones making the claim, that no scientists likewise believe there is a link, and that there is no scientific research or evidence behind the claim. By stating in the second sentence the half-truth that "a substantial body of medical research indicates that there is no established link between abortion and breast cancer," the reader is made aware that a substantial body of research on the subject has been conducted, but is left with the impression that none of this research found a relationship. The false impression created by these two half truths is then sealed by the explicit assertion in the third sentence, backed by the authority of the National Cancer Institute, that there is no evidence of a causal relationship between abortion and breast cancer.
39. The district court based its finding that the Clinic's brochures are not untrue or misleading upon the perceived authority of the National Cancer Institute, as well as the perceived "majority" opinion about the evidence linking abortion and breast cancer. See T. p. 673. Both of these modes of inference are fallacious, however, and were unnecessary, since the court was presented not merely with various opinions about this evidence, but with a core of undisputed facts that demonstrate unequivocally the falsity of the Clinic's Original and Current Brochures.
40. "What passes for causal inference by scientists is often just decision-making perched upon weak criteria that lack a logical base. Many of the commonly used modes of causal inference are fallacious, their popularity notwithstanding. For example, one such method of inference, the method of 'consensus,' has been embraced, presumably for political reasons, by the National Institutes of Health. According to this method, a causal inference can be drawn when a consensus of experts knowledgeable about the issue is formed. . . . The difficulty with this method is that consensus is no guarantee of correctness, as has been historically demonstrated in many instances. For one thing, consensus is temporary, and can change. . . . For another thing, consensus itself requires no further justification, and may be based on shared beliefs that are irrational. When One Hundred Authors Against Einstein, a collection of essays by 100 physicists attempting to discredit relativity theory, was published in 1930, Einstein reputedly responded to a reporter's query about the book with the remark: 'Were my theory wrong, it would have taken but one person to show it.'. . .
41. "Another faulty approach to inference is to infer by 'appeal to authority.' While it would hardly seem to need saying that the seal of approval from a noted authority does not provide any logical basis for inference, in everyday practice many inferences are premised on little but the credentials of the theory's leading exponent. The flip side of an appeal to authority is the ad hominem criticism, which disallows an inferential argument simply because of the imagined lack of necessary credentials, or presumed biases, of the person who presents it. Of course, on reflection it seems obvious that an inference should stand or fall by virtue of its logic and the relevant data, and not by virtue of the imputed viewpoint, philosophy, personal biases, heritage or other interests of the person who puts forth the argument." Kenneth J. Rothman, Inferring Causal Connections Habit, Faith or Logic?, in Causal Inference 6-7 (ed. Kenneth J. Rothman) (1988).
42. In trying to defend the NCI's 1996 assertion that there is absolutely no "evidence" of a causal relationship between induced abortion and breast cancer, the Clinic's experts transported themselves beyond the bounds of all common word usage and common sense, and contradicted themselves throughout their testimony. Their willingness to do so may in part be explained by their reliance on funding from the National Cancer Institute to finance the research on which their scientific careers depend. See T. p. 289-90; p. 444, l. 2-3. Since World War II, "the funding of science (except in industrial laboratories) has largely been taken over by agencies of the federal government," such as the National Cancer Institute. Federal Judicial Center, Reference Manual on Scientific Evidence 75 (2000) [hereinafter Reference Manual]. Their incentive to follow the party line is clear. Dr. Mor, for example, denied in his sworn testimony that early menarche, late age at menopause, and age at first full-term pregnancy were established risk factors for breast cancer. See T. p. 365, l. 9-25. When confronted with an NCI fact sheet that stated that these were established risk factors, however, Dr. Mor apparently changed his opinion on the spot to agree with the NCI. See id. p. 373, l. 4-11.
43. In the legal system, "evidence" simply means anything having any tendency to make the existence of any fact more probable or less probable than it would be without the evidence. The word has no different, special meaning when used by scientists. If anything, "the word evidence is used much more loosely in science than in the law. The law has precise rules of evidence that govern what is admissible and what isn't. In science the word merely seems to mean something less than 'proof.'" Reference Manual, supra, 80. There is no reason to believe that the ordinary reader of the Clinic's commercial brochure will attach any other meaning to the word "evidence" than this simple, common sense understanding.
44. The trial court seemed to set up a false dichotomy between epidemiological and biological evidence, with the idea that the former dealt essentially only with associations while only the latter was capable of actually providing evidence of causation. See T. p. 462-63. Yet, epidemiological evidence is understood to be probative evidence of causation in humans even in the absence of a clear understanding of the underlying biological mechanisms. "When biological plausibility exists, it lends credence to an inference of causality. . . . However, observations have been made in epidemiologic studies that were not biologically plausible at the time but subsequently were shown to be correct. . . . The saliency of this factor [biological plausibility] varies depending on the extent of scientific knowledge about the cellular and subcellular mechanisms through which the disease process works." Reference Manual, supra, 378. The first sentence of Jose and Irma Russo's 1980 landmark study on laboratory animals states: "Although the cause of breast cancer is not known, epidemiologic observations indicate that there are factors that exert either a protective or a stimulating influence on the development of breast cancer in women. Among the protective factors are a first full-term pregnancy before 24 years of age and a late menarche. Among the risk factors are nulliparity, late pregnancy, early menarche and abortion." T. p. 137, l. 6-14.
45. The Clinic's experts freely used the word "evidence" in its common sense meaning throughout the trial, often to describe information of much less probative value than the evidence linking abortion and breast cancer. After Dr. Mor acknowledged that early age at menarche is an established risk factor for breast cancer, and was asked whether this risk factor was demonstrated by "biological evidence," Dr. Mor answered, "This was proposed in the it was in the early '60's with the idea that as early the lady starts the cycles, the constant phases of proliferation, of cell growth and cell death together with exposure to environmental factors, but let's put it, to run environmental factors, increase the risk of breast cancer." T. p. 373-74. Apparently Dr. Mor accepts early menarche as an established risk factor for breast cancer based on no more biological evidence than the "idea" that the earlier the woman starts the cycles of cell proliferation, the higher the risk of breast cancer.
46. Dr. Palmer testified on direct examination that she was familiar with epidemiological studies that "demonstrate" to her a "little spike" in breast cancer risk "for a few years" after a full-term pregnancy. See id. p. 481-82. She is apparently convinced by this epidemiological evidence that a causal relationship exists, even though "[t]his has been a relatively new field of research in the last 10 years," only about four or five studies have been published on the subject, and the Clinic's other expert witness, Dr. Mor, apparently had never even heard of it. See id. p. 376, 482.
47. Dr. Palmer is also persuaded by epidemiological "evidence" that a young age at first full-term pregnancy is associated with a higher risk of heart attack, even though only about four studies had been published on the subject, the relative risks found were below 2.0, and "we don't really know the [biological] explanation." See id. p. 483-84.
48. The Clinic's Administrator, Jane Bovard, testified that she believes that the 1996 NCI statement quoted in the Current Brochure, that "there is no evidence of a direct relationship," and the 1999 NCI statement which was available at the time the Clinic produced its Current Brochure in early 2000, that "evidence of a direct relationship . . . is inconsistent," are ultimately the same in meaning. See id. p. 70-71. To the contrary, there is an obvious and important difference in meaning between the two statements. Calling the evidence "inconsistent" is a subjective characterization, while claiming that there is absolutely no evidence of a causal relationship between abortion and breast cancer is a statement of fact which is objectively verifiable by reference to the facts and the plain meaning of the word "evidence.". Epidemiological findings are never really replicated exactly, because every study is different, and chance plays a role. It can almost always be said therefore that a certain body of epidemiological evidence on a given subject is "inconsistent" to some degree. As Dr. Palmer testified, "As I say do 10 studies, one might you know, they're all going to have slightly different estimates. That's why we call these relative risks estimates because they're a statement of the true one, the one that we would know if we were all knowing." Id. p. 481. "Not infrequently, the court may be faced with a number of epidemiologic studies whose findings differ. These may be studies in which one shows an association and the other does not, or studies which report associations, but of different magnitude." Reference Manual, supra, 380.
49. The circumstance that there may be evidence on both sides of a scientific question, which may provide a basis for claiming that the evidence is "inconsistent," does not somehow make the evidence on the disfavored side of the controversy disappear. In Federal Trade Comm'n v. National Commission on Egg Nutrition, 517 F.2d 485 (7th Cir. 1975), the Seventh Circuit found that the defendant trade association, in advertising "to the effect that there was 'no scientific evidence' of any relationship between dietary cholesterol intake resulting from eating eggs and increased risk of heart disease . . . has done more than espouse one side of a genuine controversy. . . . It has made statements denying the existence of scientific evidence which the record clearly shows does exist. These statements are, therefore, misleading." Id. at 489-90.Abrogating the protective effect of carrying a pregnancy to term by aborting the pregnancy is a cause-in-fact of breast cancer in many cases.
50. Because the trial court was under the mistaken impression that the protective effect of a full-term pregnancy is only temporary, the court did not have adequate opportunity to fully consider Plaintiff's argument that the lifetime decrease in breast cancer risk associated with childbirth which is not only supported by "evidence" but which is generally accepted in the scientific community as an established fact itself renders the Clinic's Original and Current Brochures untrue and misleading. This established fact renders the brochures false from both a technical, literal standpoint and from the standpoint of the ordinary, likely reader of the Clinic's brochure.
51. The Clinic's brochure claims that there is no evidence of a causal relationship between breast cancer and abortion, but it is obvious that, just as not wearing a seat belt or a motorcycle helmet is a very real and significant cause of many deaths every year, forgoing the lifetime protective effect that would have naturally resulted from childbirth by aborting the pregnancy is indeed an actual cause of many breast cancer cases. "But for" the abortion, the woman would have benefitted from the significant lifetime protection and in many instances will consequently develop a breast cancer that she would not have developed if she had carried the pregnancy to term. The epidemiological definition of causation parallels this legal, "but for" definition: "Causation . . . denotes an event, condition, characteristic, or agent's being a necessary element of a set of other events that can produce an outcome, such as a disease." Reference Manual, supra, 388-89.
52. This legal and scientific meaning of causation is also the common-sense meaning that will matter to the ordinary reader of the Clinic's commercial brochures. Although it is generally accepted in the scientific community that childbirth early in life decreases breast cancer risk, most members of the public are not aware of the fact. The ordinary reader will get the impression from the Clinic's brochure that her decision to have an abortion instead of carrying the pregnancy to term will have no effect on her subsequent risk of breast cancer i.e., that there is no link or relationship between the decision to have an abortion and breast cancer. If the woman is under age 30 and has not yet had a full-term pregnancy, which describes a large proportion of prospective abortion patients, this impression will be false.
53. The intended reader of the Clinic's brochure is already pregnant, and cannot choose to have never gotten pregnant. Rather, her choice is between abortion and childbirth. She will evaluate the pros and cons social, psychological, and physical of both choices in making a decision. The relative safety of abortion and childbirth will of course be a material factor in making this decision for many women. This is presumably the very reason why the Clinic regularly reassures potential customers that abortion is many times safer than childbirth, and why it stated in an interim brochure it used briefly between the Original and Current Brochures that "it is 10 -12 times more life-threatening to give birth than it is to have an abortion in the first 16 weeks of pregnancy." See T. p. 36; 624-25. Dr. Brind testified at trial that when the relative risks of breast cancer are taken into consideration childbirth is far safer than abortion, and that these assertions by the Clinic about the relative safety of abortion and childbirth are therefore also untrue and misleading. With regard to the statement in the Clinic's interim brochure, Dr. Brind testified that he believed that "that statement would be true only if qualified to say risk of immediate death or complications," and that the only reasonable assumption is to take into account threats to life "in the long run as well as the short run." T. p. 187. "[W]hen one actually takes in the risk of long term complications, in particular breast cancer, . . . it's almost a hundred times more likely that a woman choosing abortion will die ultimately because she chose abortion than than she would die in child birth." Id. p. 188-89.
54. The bottom line is a woman considering abortion has two alternatives, and her lifetime risk of breast cancer is significantly affected by which alternative she chooses. For childless women under age 30, having an abortion increases breast cancer risk relative to what it would be if the pregnancy is not terminated, by abrogating the protective effect that would have naturally resulted from childbirth. Whether the protective effect be termed a "benefit" of childbirth, or its loss a "risk" of abortion, its effect on the woman's risk and its materiality to her decision is exactly the same.
The Clinic knows or should know that its statements are untrue and misleading.
55. Scienter is a non-issue in this case. Plaintiff in this action for injunctive relief under section 51-12-14, NDCC, is not asking the Court to punish the Clinic for past conduct, but only to protect the public from future harm. Accordingly, as the express language of 51-12-08, NDCC, indicates, the relevant inquiry is not what the Clinic knew or should have known in the past, but what "is known, or . . . by the exercise of reasonable care should be known" in the present. If an advertisement is demonstrably untrue and misleading, then the Court has the power and responsibility under 51-12-14, NDCC, to enjoin its continued use, whether or not the defendant knew or should have known at some point in the past that the advertisement was false. This conclusion follows inexorably not only from the statutory language but also from the dictates of common sense. A contrary interpretation would mean that an advertiser would be free to continue indefinitely disseminating a demonstrably false statement with impunity, so long as it could demonstrate that its ignorance of the true facts was reasonable at the time the statement was adopted. As counsel for the Clinic asserted in arguing for admission of an exhibit, "Your Honor, I don't believe that it's necessary for Ms. Bovard to have read this statement prior to the brochure being distributed since the issue in this case is its ongoing distribution . . . ." T. p. 607.
56. The Third Circuit Court of Appeals held in Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Authority, 148 F.3d 242 (3rd Cir. 1998), inter alia, that a municipal railway's reliance on a letter from the Assistant Secretary of Health in the U.S. Department of Health and Human Services as the basis for finding the plaintiff's posters warning about the abortion-breast cancer link misleading and unduly alarming was not reasonable. Likewise, the Clinic in this case cannot evade responsibility for the truthfulness, or lack thereof, of its brochures by attempting to blindly rely on the opinions of its experts or on a seven-year-old NCI fact sheet. An abortion clinic whose primary business consists in providing abortions can and should be expected to be fully conversant with the medical literature on risks associated with abortion, and can and should be expected to fairly summarize that information for the benefit of its potential customers. "Medical knowledge should not be limited to what is generally accepted as a fact by the profession. . . . To justify ignorance of this type of risk would insulate the medical profession beyond what is legally acceptable." Harbeson v. Parke Davis, Inc., 746 F.2d 517, 525 (9th Cir. 1984).
57. In any event, the evidence at trial demonstrated not only that the Clinic now knows or should know that its statements are untrue or misleading, which is all that the statutory language and purpose requires, but that the Clinic knew or by the exercise of reasonable care should have known when it first made each of the challenged statements that they were untrue or misleading.
The most appropriate remedy for the Clinic's false advertising is an injunction requiring it to inform prospective customers about the evidence it is currently denying in its commercial brochures.
58. Dr. Palmer testified at trial that "if it were established that it [abortion] causes a 30 percent increase in risk, yes, I think that women should know about that." T. 584-85. But testimony at trial did establish that there are substantial and legitimate scientific reasons for believing that abortion significantly increases breast cancer risk, reasons that were not vitiated by any contrary evidence produced at trial. For many women, the evidence indicates that the risk is increased by well over 30 percent (i.e. relative risk of 1.3). For example, a study published in 1994 in the Journal of the National Cancer Institute by Dr. Janet Daling et al., which Dr. Palmer regards as one of the "really good" studies on this issue, reported an overall 50% increase in risk, an 80% increase among women who had a family history of breast cancer, a 150% increase among women who had the abortion before age 18, and that every woman in the study who had a family history of breast cancer and who had an abortion prior to age 18 developed breast cancer by the age of 45 reported in the study as "relative risk = ." See Palmer, T. p. 477-78; p. 519-25. All of these findings achieved statistical significance. It is unconscionable to not inform those women to whom this information matters most about this evidence. It is unconscionable to allow the Clinic to continue its policy of not informing women considering abortion about the facts linking abortion with increased breast cancer risk.
59. As discussed below, an injunction requiring affirmative disclosure of the facts which the Clinic is currently denying in its commercial brochures is consistent with, and supported by, case law interpreting North Dakota's False Advertising Statute. Moreover, "Chapter 51-12, N.D.C.C., is a consumer protection statute, remedial in nature, which 'must be liberally construed in favor of protecting consumers.'" Fargo Women's Health Org., Inc. v. FM Women's Help and Caring Connection, 444 N.W.2d 683, 685 (N.D. 1989), quoting State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 903 (N.D. 1986). Although this is a false advertising case and not an informed consent case, the patient's right to be informed about the evidence linking abortion and breast cancer under well-settled principles of informed consent law argues strongly in favor of a remedy in this case which prospectively recognizes and protects that right.
60. A Comment published in 1999 by the Wisconsin Law Review demonstrates that "the current level of scientific evidence linking induced abortion with increased breast cancer risk is sufficient to support an ethical and legal duty to disclose fully the risk to women who are considering pregnancy termination. The Comment approaches this goal by examining the relationship between this evidence and the elements for a medical malpractice claim alleging failure to obtain 'informed consent.'" John Kindley, The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 Wis. L. Rev. 1595, 1601. The viability of a civil claim for damages based on breach of this duty has several implications for this false advertising lawsuit:
61. "First, civil law articulates a standard of persuasion . . . that is more in tune with the informational needs of patients than is the much higher standard apparently now applied by abortion providers, who await 'conclusive confirmation' of the link by a 'consensus' of 'medical researchers.' Second, . . . the standard of persuasion ('greater than 50%') required for compensation of injuries is 'far higher' than that required for prospective . . . purposes. . . . Third, the politically sensitive nature of abortion and breast cancer suggests the judiciary, through the adversarial system, may be the governmental branch initially best equipped to bring to light the true weight of the scientific evidence." Id. 1602-03 [citations omitted].
62. North Dakota is one of the many jurisdictions which have rejected the notion that a physician's duty to disclose risks to patients is defined by a professional custom or tradition. See Winkjer v. Herr, 277 N.W.2d 579, 587-88 (N.D. 1979): "A growing number of jurisdictions have adopted the persuasive reasoning of the lead case of Canterbury v. Spence [citation omitted], stating that although a physician's noncompliance with the professional custom to reveal, like any other departure from prevailing medical practice, may give rise to liability to the patient, a patient's cause of action is not limited to the existence and nonperformance of a relevant professional tradition. These courts have stated a patient's right of self-determination in particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves." See also Jaskoviak v. Gruver, 2002 ND 1, ¶16, 638 N.W.2d 1.
63. Just as a patient's right to be informed about facts material to a proposed medical procedure is not bound by the currently prevailing custom among physicians, it is also not bound by what a real or imagined "majority" of scientists might or might not accept as established fact: "[W]e believe a risk must be disclosed even if it is but a potential risk rather than a conclusively determined risk . . . . It may be that those risks had not yet been documented or accepted as a fact in the medical profession. Nonetheless, under the doctrine of informed consent, those risks should have been disclosed. Medical knowledge should not be limited to what is generally accepted as a fact by the profession. To hold otherwise would defeat the purpose of the doctrine, give little weight to exploratory medical research, and invite impossible line drawing." Harbeson v. Parke Davis, Inc., 746 F.2d 517, 525 (9th Cir. 1984).
64. An affirmative disclosure requirement would intrude more narrowly on any potential First Amendment interests than would a prohibition on speech. According to the United States Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265 (1985), "Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides," an advertiser's "constitutionally protected interest in not providing any particular factual information . . . is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that . . . disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech . . . ." Id. at 651. Zauderer was applied to disclosure requirements imposed on abortion clinics in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991).
65. The North Dakota Supreme Court has recognized that affirmative disclosures are appropriate remedies for false advertising when necessary "to accomplish the objective of preventing false and deceptive activity." Fargo Women's Health v. Larson, 381 N.W.2d 176, 179 (1986). In Fargo Women's Health, although the Court reversed that part of the trial court's order which required a pro-life counseling center to affirmatively state in its advertisements that it did not perform abortions, the Court did so not on the grounds that the provision required affirmative disclosures but that this requirement was "redundant and unnecessary," since other provisions of the order already prohibited the center from advertising that it performed abortions. Id. In the instant case, by contrast, nothing less than an order requiring affirmative disclosure of particular facts will protect the public from being misled. See also Consumers Union of U.S., Inc. v. Alta-Dena Cert. Dairy, 6 Cal.Rptr.2d 193, 194, 199 n.6 (Cal.App. 1 Dist. 1992) (holding that the trial court had the authority under California's false advertising and unfair competition statutes to evaluate in light of the scientific evidence the truth of the defendant's claims about the safety of its products and to order the placement of a warning label on those products).
66. Although the affirmative disclosure sought by Plaintiff is something that a legislature could also impose, this possibility does not negate the Court's equal authority and responsibility to require such disclosures as necessary in carrying out its duty to apply the false advertising statute. "[T]he primary purpose of the unfair competition law and the false advertising act is to protect the public from unscrupulous business practices. The mere fact that in carrying out this function, as for example by mandating the placement of a warning on a consumer product, a court may incidentally duplicate a legislative function does not result in a violation of the separation of powers doctrine." Consumers Union of U.S., Inc. v. Alta-Dena Cert. Dairy, 6 Cal.Rptr.2d 193, 200 (Cal.App. 1 Dist. 1992).
67. Not informing women considering abortion that a first full-term pregnancy before age 30 is associated with decreased breast cancer risk and that abortion is associated with increased breast cancer risk also constitutes a violation of the express provisions of North Dakota's Abortion Control Act. Under section 14-02.1-02 of the Act, "'Informed consent' means voluntary consent to abortion by the woman upon whom the abortion is to be performed provided that . . . [t]he woman is told . . . at least twenty-four hours before the abortion . . . [inter alia] the particular medical risks associated with the particular abortion procedure to be employed . . . [and] the medical risks associated with carrying her child to term." The letter and the spirit of this Act therefore require that the woman be told both that abortion is associated with increased breast cancer risk, and that carrying her child to term is associated with a lower risk that breast cancer will occur. The North Dakota Supreme Court has likewise held that the common law duty to obtain informed consent requires that a patient be informed about the risks and benefits of a proposed medical procedure, as well as the risks and benefits of alternatives to the procedure, including the alternative of letting nature take its course by not undergoing any medical intervention at all. See Jaskoviak v. Gruver, 2002 ND 1, ¶¶17, 22-23, 638 N.W.2d 1.
68. The balance of equities in this case overwhelming supports Plaintiff's requests. The nature of the threatened harm to the dignity and very lives of those women on whose behalf this suit has been brought is far more serious than the merely economic threat to a plaintiff's abortion business which was the basis for the injunction limiting the commercial speech of a pro-life counseling center upheld by the North Dakota Supreme Court in Fargo Women's Health Organization, Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986). The Clinic cannot be harmed or unduly burdened by simply being required to give its prospective customers accurate, objective information about risks associated with a procedure it proposes to perform for monetary compensation.
69. Perhaps the fact that Plaintiff was not herself misled or harmed by the Clinic's advertising caused the trial court to overlook that many women are misled and harmed, and contributed to the court's decision in this case. However, the North Dakota legislature, in allowing "any person" to sue on behalf of the general public to enjoin false advertising, has contemplated and encouraged just this kind of public interest lawsuit. A just resolution of this case requires that the Court recognize that there are multitudes of real, living human beings not present for these proceedings for whom this Court's decision may be a matter of life and death. They are necessarily voiceless because it is precisely their unawareness of the evidence linking induced abortion with increased breast cancer risk that puts them in danger of the Clinic's false advertising and its failure to inform. Those women who have abortions and subsequently become aware of the evidence linking abortion with breast cancer, although they may have standing to sue for damages, would not have standing under normal common law principles to sue for injunctive relief on behalf of other women, because they themselves are no longer personally in danger of being misled by the Clinic's advertising. Moreover, it is universally known that abortion continues to carry a measure of stigma in our society. Most women who have had abortions want to keep their decision private. It is therefore entirely appropriate that Plaintiff advocate on behalf of these voiceless women.
70. Mindful of what is at stake for the lives and dignity of women in North Dakota, the politically-charged nature of abortion and breast cancer, and the national attention that has been focused on this lawsuit, Plaintiff in proposing an appropriate injunction advocates only what is essential, scrupulously objective, and firmly based on known facts. First, she asks that a woman considering abortion at the Clinic be told at least 24 hours before the procedure that "having a first full-term pregnancy before age 30 is protective against breast cancer in later life." This language is taken verbatim from the Clinic's Response to Plaintiff's Request for Admission No. 2, and so there is no genuine issue as to the scientific fact it describes. Second, she asks that a woman considering abortion at the Clinic be told at least 24 hours before the procedure the fact that a number of studies have been published which provide scientific evidence that aborting any pregnancy increases the risk of developing breast cancer in later life. Although the Clinic cannot be prevented from representing that this evidence is inconclusive or from providing additional supplemental information that it deems appropriate, the Clinic should be enjoined from stating or implying that the evidence of a causal relationship has been refuted, since it was unable to provide anything resembling such refutation at trial. Although a prospective patient can and should be apprised that there is scientific controversy over whether abortion increases breast cancer risk, she should not be left with the false impression that the controversy has been resolved and that there is nothing at all to be concerned about.
71. "In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 882 (1992). Requiring the Clinic to disclose those facts it is now denying in its commercial brochures will alert women considering abortion that there is a relationship between abortion and breast cancer risk, enable them to investigate the evidence further for themselves if they so choose, and allow them to make their own judgments as to whether it should influence their decision. On the other hand, not requiring disclosure of these facts would guarantee that women in North Dakota will continue to be misled as to the relative safety of abortion and childbirth, and that they will unknowingly incur a risk that could cost them their lives. Only they not the Clinic, not the Clinic's experts or lawyers, not even this Court should decide for these women whether that is a risk worth taking, but without this Court's help that decision will continue to be made for them.
Respectfully submitted this 10th day of March, 2003,
|John Kindley (Non-Resident)|
|P.O. Box 1406|
|Mishawaka, IN 46546|
|Gregory L. Lange #03491|
|P.O. Box 488|
|Hazen, ND 58545|
|ATTORNEYS FOR APPELLANT|