The South Dakota legislature took it upon itself to specify the “risks” to be included in the informed consent required by state law for an abortion procedure:
(1) A statement in writing providing the following information:
* * *
(e) A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:
(i) Depression and related psychological distress;
(ii) Increased risk of suicide ideation and suicide;
* * *
S.D.C.L. § 34-23A-10.1(1)(e)(i)(ii). Planned Parenthood challenged the law on constitutional grounds, and the district court granted a preliminary injunction against the South Dakota statute, which a panel of the Eight Circuit affirmed, only to have that Circuit en banc reverse and remand the case for further proceedings. Planned Parenthood Minn. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc).
On remand, the parties filed cross-motions for summary judgment. The district court held that the so-called suicide advisory was unconstitutional. On the second appeal to the Eight Circuit, a divided panel affirmed the trial court’s holding on the suicide advisory. 653 F.3d 662 (8th Cir. 2011). The Circuit, however, again granted rehearing en banc, and reversed the summary judgment for Planned Parenthood on the advisory. Planned Parenthood Minnesota v. Rounds, Slip op. July 24, 2012 (en banc)[Slip op.].
In support of the injunction, Planned Parenthood argued that the state’s mandatory suicide advisory violated women’s abortion rights and physicians’ free speech rights. The en banc court rejected this argument, holding that the required advisory was “truthful, non-misleading information,” which did not unduly burden abortion rights, even if it might cause women to forgo abortion. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882-83 (1992).
Risk ≠ Cause
Planned Parenthood’s success in the trial court turned on its identification of risk (or increased risk) with cause, and its expert witness evidence that causation had not been accepted in the medical literature. In other words, Planned Parenthood argued that the advisory required disclosure of a conclusive causal “link” between abortion and suicide or suicidal ideation. See 650 F. Supp. 2d 972, 982 (D.S.D. 2009). The en banc court, on the second appeal, sought to save the statute by rejecting Planned Parenthood’s reading. The court parsed the statute to suggest that the term “increased risk” is more precise and limited than the umbrella term of “risk,” standing alone. Slip op. at 6. The statute does not define “increased risk,” which the en banc court noted had various meanings in medicine. Id. at 7.
Reviewing the medical literature, the en banc court held that the term “increased risk” does not refer to causation but to a much more modest finding of “a relatively higher probability of an adverse outcome in one group compared to other groups—that is, to ‘relative risk’.” Id. The en banc majority seemed to embroil itself in some considerable semantic confusion. One the hand, the majority, in a rhetorical rift proclaimed that:
“It would be nonsensical for those in the field to distinguish a relationship of ‘increased risk’ from one of causation if the term ‘risk’ itself was equivalent to causation.”
Id. at 9. The majority’s nonsensical labeling is, well, … nonsensical. There is a compelling difference in assessment of risk and causation. Risk is an ex ante concept, applied before the effect has occurred. Assessment or attribution of causation takes place after the effect. Of course, there is a sense of risk or “increased risk,” which is epistemologically more modest, but that hardly makes the more rigorous use of risk as an ex ante cause, nonsensical.
The majority, however, is not content to leave the matter alone. Elsewhere, the en banc court contradicts itself, and endorses a view that risk = causation. For instance, in citing to a civil action involving a claimed causal relationship between Bendectin and a birth defect, the Eighth Circuit reduces risk to cause. See Slip op. at 26 n. 9 (citing Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, 312 , modified on reh’g, 884 F.2d 166 (5th Cir. 1989)). The en banc court’s “explanatory” parenthetical explains the depths of its confusion:
“explaining that if studies establish, within an acceptable confidence interval, that those who use a pharmaceutical have a relative risk of greater than 1.0—that is, an increased risk—of an adverse outcome, those studies might be considered sufficient to support a jury verdict of liability on a failure-to-warn claim.”
This reading of Brock is wrong on two counts. First, the Fifth Circuit, in Brock, and consistently since, has required the relative risk greater than 1.0 to be statistically significant at the conventional significance probability, as well as other indicia of causality, such as the Bradford Hill factors. So Brock and its progeny did not confuse or conflate risk with cause, or dilute the meaning of cause such that it could be satisfied by a mere showing of an increased relative risk.
Second, Brock itself made a serious error in interpreting statistical significance and confidence intervals. The Bendectin studies at issue in Brock were not statistically significant, and the confidence intervals did not include a measure of no association (relative risk = one). Brock, however, in notoriously incorrect dicta claimed that the computation of confidence intervals took into account bias and confounding as well as sampling variability. Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d 307, 311-12 (5th Cir. 1989)(“Fortunately, we do not have to resolve any of the above questions [as to bias and confounding], since the studies presented to us incorporate the possibility of these factors by the use of a confidence interval.”)(emphasis in original). See, e.g., David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore – A Treatise on Evidence: Expert Evidence § 12.6.4, at 546 (2d ed. 2011); Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 86-87 (2009)(criticizing the over-interpretation of confidence intervals by the Brock court); Schachtman, “Confidence in Intervals and Diffidence in the Courts” (Mar. 4, 2012).
The en banc majority’s discussion of the studies of abortion and suicidality make clear that the presence of bias and confounding in a study may prevent inference of causation, but they do not undermine the conclusion that the studies show an increased risk. A conclusion that the body of epidemiologic studies was inconclusive, and that it failed to “to disentangle confounding factors and establish relative risks of abortion compared to its alternatives,” did not, therefore, render the suicide advisory about risk or increased risk unsupported, untruthful, or misleading. Slip op. at 20. Indeed, the en banc court provided an example, outside the context of abortion, to illustrate its meaning. The en banc court’s use of the example of prolonged television viewing and “increased risk” of mortality suggests that the court took risk to mean any association, no matter how likely it was the result of bias or confounding. See id. at 10 n. 3 (citing Anders Grøntved, et al., “Television Viewing and Risk of Type 2 Diabetes, Cardiovascular Disease, and All-Cause Mortality, 305 J. Am. Med. Ass’n 2448 (2011). The en banc majority held that the advisory would be misleading only if Planned Parenthood could show that the available epidemiologic studies conclusively ruled out causation. Slip op. at 24-25.
The Suicide Advisory Has Little Content Because Risk Is Not Cause
The majority decision clarified that the mandatory disclosure does not require a physician to inform a patient that abortion causes suicide or suicidal thoughts. Slip op. at 25. The en banc court took solace in its realization that physicians’ reviewing the available studies could provide a disclosure that captures the difference between risk, relative risk, and causation. In other words, physicians are free to tell patients that this thing called increased risk is not concerning because the studies are highly confounded, and they do not show causation. Id. at 25-26. Indeed, it would be hard to imagine an ethical physician telling patients anything else.
Dissent
Four of the Eight Circuit judges dissented, pointing to evidence that the South Dakota legislators intended to mandate a disclosure about causality. Slip op. at 29. Putting aside whether the truthfulness of the suicide advisory can be saved by reverting to a more modest interpretation of risk or of increased risk, the dissenters appear to have the better argument that the advisory is misleading. The majority, however, by driving its wedge between causation and increased risk have allowed physicians to explain that the advisory has little or no meaning.
NOCEBO
The nocebo effect is the dark side of the placebo effect. As pointed out recently in the Journal of the American Medical Association, nocebos can induce harmful outcomes because of the expectation of injury from the “psychosocial context or therapeutic environment” affecting patients’ perception of their health. Luana Colloca & Damien Finniss, “Nocebo Effects, Patient-Clinician Communication, and Therapeutic Outcomes,” 307 J. Am. Med. Ass’n 567, 567 (2012). It is fairly well accepted that clinicians can inadvertently prejudice health outcomes by how they frame outcome information to patients. Colloca and Finniss note that the negative expectations created by nocebo communication can take place in the process of obtaining informed consent.
Unfortunately, there is no discussion of nocebo effects in the Eight Circuit’s decision. Planned Parenthood might well consider the role the nocebo effect has on the risk-benefit of an informed consent disclosure about a risk that really is not a risk, or is not a risk in the sense that it is a factor that will result in the putative cause, but rather only something that is under study and which cannot be separated from many confounding factors. Surely, physicians in South Dakota will figure out how to give truthful, non-misleading disclosures that incorporate the mandatory suicide advisory, as well as the scientific evidence.
