Investigations Science

When Does an Error Become a Lie? The Case of the Missing Decimal Point

Imani Gandy

This is a story about Dr. John Thorp and a Missing Decimal Point, an odd mystery that raises questions about when an error becomes a lie, and when—in the context of court proceedings—a lie becomes perjury.

This is a story about the Case of the Missing Decimal Point, an odd mystery that, on my reading, exemplifies the problem with the bogus “science” that underpins the majority of anti-choice legislation. It’s a case that raises questions about when an error becomes a lie, and when—in the context of court proceedings—a lie becomes perjury.

Meet our protagonist, a certain Dr. John Thorp, professor of obstetrics and gynecology at the University of North Carolina-Chapel Hill School of Medicine; deputy director of UNC’s Center of Women’s Health Research; member of the editorial boards of the Obstetric and Gynecological Survey and the British Journal of Obstetrics and Gynecology; and a member of the American Congress of Obstetricians and Gynecologists for more than 20 years.

And also, serial butcher of the facts when it comes to the safety of abortion care in the United States.

Thorp is important because he’s one of a small handful of peripheral doctors and scientists trotted out by lawmakers who are hell-bent on destroying the constitutional right to choose whether to carry a pregnancy to term. States have paid thousands of dollars to Thorp and his ilk for their “evidence” in legislative hearings and court cases. Like climate change denialists, these “experts” turn up to contradict the overwhelming scientific consensus about abortion, creating the false impression of medical debate.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Now, to this pesky Missing Decimal Point.

In multiple court cases, Thorp has presented an expert report that claims the complication rate from abortion is between 2 and 10 percent. The cases have all involved admitting privileges laws—laws that require abortion providers to be authorized by local hospitals to admit patients to their emergency rooms. These laws make zero sense for the following reason: they’re unnecessary because the staff at the emergency rooms admit patients to the emergency rooms. Admitting privileges for abortion providers are wholly redundant. They also reflect the antiquated “country-doctor” model of medicine under which a physician who performs the initial procedure would consistently provide care for any complications that may arise afterwards. It’s a model that does not reflect twenty-first century medicine as it relates to low-risk procedures like abortion: EMTs transport patients to the closest available emergency room usually without concern for whether the doctor who performed the procedure is authorized to admit patients to that particular hospital.

Undeterred by reason or reality, anti-choice lawmakers have consistently claimed that these laws are necessary due to false claims about the danger of abortions. Thorp has been one of the only witnesses willing to give evidence to support those claims. Specifically, he has claimed that the high complication rate justifies the admitting privileges requirements.

In connection with Planned Parenthood of Wisconsin, Inc. v. Van Hollen, the lawsuit challenging Wisconsin’s admitting privileges law, Thorp supplied an expert report stating that the abortion complication rate range is somewhere between 2 and 10 percent, but could not point to a single study to back up his assertion.

This claim was contested by an expert for plaintiffs, Dr. Douglas Laube, as well as a neutral court-appointed expert, Dr. Serdar Bulun. They each reviewed several studies, none of which found a complication rate greater than 1.9 percent for both first- and second-trimester abortions.

To underline how important this is, Thorp provided a range, not an average. And his range began at a higher number than the very highest complication rate found by the other experts. To put this in perspective, the Guttmacher Institute—recognized as an authority on abortion statistics—says the complication rate in first-trimester abortions (92 percent of abortions are performed during the first trimester) is closer to 0.05 percent, a minuscule risk.

During the colloquy with the court, a formal on-the-record conversation that District Court Judge William Conley convened in an attempt to reach a consensus between Thorp, Laube, and Bulun about abortion complication rates, Thorp repeated his claim that the abortion complication rate is 2 to 10 percent. He did not waiver from this claim.

When pressed at trial, however—a mere two and a half hours after the colloquy with the court—Carrie Flaxman, an attorney for Planned Parenthood, dragged the truth out of him.

“I want to turn back to your estimate of 2 to 10 percent complication rate, which you’ve now said in the courtroom for the first time is 0.2% to 10%; is thatam I getting that right?” Flaxman asked Thorp.

“Yes ma’am,” Thorp responded. “That thing misses a decimal.”

“You have a number of expert reports from other cases. They all miss a decimal, don’t they, sir?”

“They’re consistently missed [sic] the decimal,” Thorp replied.

That was Thorp’s scientifically rigorous explanation for his wildly inaccurate complication rate range: “That thing misses a decimal.” In other words, he inflated complication rates by a factor of ten and then continued repeating erroneous data.

That exchange led to a blistering opinion from Judge Conley.

“The court has several concerns with Dr. Thorp’s credibility,” Judge Conley wrote. “In light of the deep flaws in his analysis and his testimony, which often came off more as advocacy than expert opinion, the court finds little to credit Dr. Thorp’s opinions of the relative risks of abortion to child birth or comparable invasive procedures,” wrote Judge Conley.

Ouch.

Judge Conley went on to cast doubt over Thorp’s testimony in other cases, where states had also relied on his “expert” testimony to support bogus laws.

TIMELINE OF EVENTS

September 2013: Thorp submits an expert report in the Alabama lawsuit claiming that the abortion complication rate is between 2 and 10 percent.

November 2013: Thorp gives a deposition in the Alabama lawsuit and discovers the missing decimal point. He would later testify during the Alabama trial that he discovered the error at this time.

March 2014: Thorp submits an expert report in the Wisconsin lawsuit containing the incorrect percentage points.

April 2014: Thorp also submits to the court in Alabama a declaration containing the incorrect 2 to 10 percent abortion complication rate.

May 2014:  In Wisconsin, Judge Conley holds a colloquy between plaintiff and defense experts at 8:00 a.m. on May 29 in an attempt to reach a consensus regarding abortion complication rates. During that colloquy, Thorp repeats the incorrect abortion complication rate.

May 2014: At 10:30 a.m.—an hour and a half after the colloquy with the court began, during which Thorp did not waiver from his claim that the abortion complication rate is 2 to 10 percent—Thorp takes the stand. During cross-examination, Thorp testifies that the 2 to 10 percent abortion complication rate is incorrect and that the correct rate is 0.2 to 10 percent.

July 2014: During the Alabama trial, Thorp testifies that he discovered the error with his complication rate—the missing decimal point—in November 2013.

“Dr. Thorp has not only been retained in a number of cases to provide testimony supporting abortion regulations, including similar challenges to admitting privileges requirements [in Alabama and Texas], but has also submitted amicus curiae briefs on his own behalf to the U.S. Supreme Court in support of abortion-related regulations.” (Emphasis in original.)

“His extensive involvement in lawsuits supporting abortion regulations calls into question his ability to separate personal beliefs from the medical science surrounding these regulations,” Judge Conley continued.

Shorter Conley: Thorp’s evidence is wrong, and he’s a biased witness. Pretty hard for an expert witness to recover from those blows. Indeed, Thorp seems to have become a liability for the state of Wisconsin.

It could have been worse, though.

As devastating as Judge Conley’s opinion is to Thorp’s credibility, he refrained from making any statements about Thorp’s honesty. He certainly could have, however, because on more than one occasion during the course of the Wisconsin lawsuit, Thorp submitted documents and offered to the court testimony containing false information.

And as we all know, knowingly submitting false information in a court has a special name. It’s called perjury, and it’s a crime. To be clear, we can’t know Thorp’s state of mind when he made these incorrect claims in Wisconsin in 2014. We asked him, via email, whether he could account for submitting erroneous information, but he didn’t reply.

Did Thorp make a simple mistake? After all, it would be very easy to type “2” instead of “0.2.” Or was there something more nefarious at play? If it were a simple mistake, why did Thorp continue to submit the erroneous information to more than one court after he was made aware of the mistake? More importantly, why did Thorp stick to the inflated complication rate when Judge Conley questioned him during the colloquy with the court?

Even the most cursory review of Thorp’s testimony raises serious ethical questions about the Case of the Missing Decimal Point.

Had Thorp been made aware of his mistake during the Wisconsin trial, and then made every effort to correct the misinformation, it would be easy to chalk up the Case of the Missing Decimal Point to human error.

But that’s not what happened.

In a phone interview with Rewire, Eric J. Segall, a professor at Georgia State University College of Law, who specializes in constitutional law, says Thorp’s repeated “errors” give the impression that there may be more at play than simple mistakes.

“If your facts are correct, it appears he misled the court in a kind of way that should get him into trouble. I think that’s pretty clear,” Segall said.

In fact, Thorp knew his previous testimony of an inaccurate complication rate was a gross exaggeration several months before he took the stand in May 2014 to advocate for Wisconsin’s admitting privileges law.

In November 2013, Thorp gave a deposition in connection with Planned Parenthood Southeast, Inc. v. Strange, the lawsuit challenging Alabama’s admitting privileges law. It was during that deposition that one of the attorneys for Planned Parenthood—the same attorney, Carrie Flaxman, who would question him at trial in Wisconsin—pointed out the error to Thorp. (He would later testify during the Alabama trial that he knew about the error in November 2013.)

Five months after Thorp knew about the error, he nevertheless submitted to the Alabama court a declaration signed under penalty of perjury which contained the same falsehoods.

That’s either mighty forgetful, monstrously careless, or worse.

This led Myron Thompson, the District Court judge who struck down the Alabama law as unconstitutional in a whopping 172-page order, to write a supplemental opinion in which he discussed at length the admissibility of certain expert opinions, including Thorp’s. In that supplemental opinion, Judge Thompson wrote that “Thorp displayed a disturbing apathy toward the accuracy of his testimony.”

“In his expert report, [Thorp] opined that the low-end estimate of the complication rate was two percent, based on an article that he had written with the same claim. In fact, the range supported by his article is 0.2%,” Judge Thompson wrote. “Although he was confronted with the error during his November 2013 deposition, he submitted a declaration to the court in April 2014 that again claimed the two percent figure.”

Ultimately, Judge Thompson would discredit Thorp’s testimony on complication rates entirely. “Other choices that [Thorp] made in developing his estimates seem to be driven more by a bias against abortion and a desire to inflate complication rates than by a true desire to reach an accurate estimate of the dangerousness of abortion procedures.” (Emphasis added.)

And months after Judge Thompson discredited Thorp, Judge Conley would follow suit, writing there were “multiple errors in Dr. Thorp’s citations to studies that purportedly supported this range, and his methodology in compiling these statistics lacked analytical rigor.”

This point cannot be understated: Thorp submitted documents containing erroneous information to the court in Alabama. After being confronted about it in November 2013, Thorp continued to submit documents containing the same erroneous information, not just to the court in Alabama, but also to the court in Wisconsin.

Furthermore, when Thorp had an opportunity to clarify his error during the colloquy between experts and Judge Conley in the Wisconsin lawsuit, he did not do so.

Given the facts, the solution to the Case of the Missing Decimal Point seems fairly obvious.

Thorp has proven that he is either too incompetent to serve as an expert witness in these admitting privileges law cases, or worse—that he is purposefully misleading the court.

Yet, as we have seen with Vincent Rue—who continues to be paid thousands of dollars by states looking to defend abortion restrictions even though, as Kathryn Kolbert writes in Slate, he was thoroughly discredited in the trial court phase of Planned Parenthood v. Casey in 1992—states looking to restrict abortion access have no qualms about hiring experts of dubious trustworthiness.

As such, despite Thorp’s questionable behavior in the Alabama and Wisconsin lawsuits, there’s no guarantee that the next state to litigate the constitutionality of an admitting privilege law won’t call upon Thorp and pay him thousands of dollars to offer his “expert” opinion about abortion complication rates. And there’s also no guarantee that Thorp won’t continue submitting erroneous information to courts in an attempt to, as Judge Thompson aptly put it, “inflate complication rates.”

That states are wasting thousands of taxpayer dollars litigating laws like these and hiring discredited consultants and experts, like those found in Rewire’s gallery of False Witnesses, illustrates the indefensible nature of admitting privileges laws.

Professor Segall agrees. “These laws are so unrelated to anything resembling a legitimate medical interest that the state has to continue to rely on data that its own star witness should have known wasn’t accurate.”

“This is one more piece of evidence that the state’s data is wrong and that states should stop defending these laws,” Segall said.

As more of these admitting privileges laws wend their way through the courts, it’s important to realize that many of the so-called experts upon whom anti-choicers rely traffic in agenda-driven science and are not trustworthy. (It’s no surprise that Thorp is featured in the False Witnesses gallery.)

If Thorp had made one mistake, it would likely not be noteworthy. Everyone makes mistakes. Certainly no one, even the most reputable expert in a given field, is immune to the occasional error. But at what point does an error become a lie? And when courts are involved, at what point does a lie become perjury?

And at what point should taxpayers hold their state attorneys general accountable for paying thousands of dollars to an “expert” who has supplied misinformation to and been discredited by more than one court?

In the curious case of John Thorp and the Missing Decimal Point, these questions demand answers.

Analysis Abortion

Texas Solicitor General Still Wrong on Number of Complications From Abortion

Sharona Coutts

As with so many claims from anti-choice campaigners and advocates, this one doesn't hold up to scrutiny.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

How many Texas women suffer complications as a result of abortions each year?

That question arose again Wednesday as the U.S. Supreme Court heard arguments about a Texas law that, if allowed to take full effect, would shutter the majority of abortion clinics in that state, and leave millions of predominantly low-income women without access to safe, affordable abortion care.

In response to questioning from Justice Ruth Bader Ginsburg, Texas Solicitor General Scott Keller repeated a claim that has been trotted out since this litigation began, back in September 2013, just months after former Gov. Rick Perry signed the law.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Keller claimed that 210 women are hospitalized in Texas each year due to complications from abortion.

As with so many claims from anti-choice campaigners and advocates, this one doesn’t hold up to scrutiny.

That number was first provided by Planned Parenthood as an estimate derived by using the number of women who obtain abortions in Texas each year—roughly 70,000—divided by the known complication rate from abortions in the United States overall, an exceedingly low rate compared to other surgical procedures, of just 0.3 percent. Two hundred and ten is 0.3 percent of 70,000. In other words, that is a statistical estimate; it is not a report based on any actual injuries or complications.

That estimate, however, does not give the true picture of complications arising from abortion in Texas.

In the years since the Texas legislature passed HB 2, the number of abortions performed in the state has dropped. So even if the complication rate remained the same, the number of hospitalizations would be lower.

What’s more, the terms “hospitalization” and “complications” can give a misleading impression about the safety of abortion.

The Fifth Circuit Court made clear that not all women admitted to a hospital with “complications” would require specialist follow-up.

“Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an Ob/Gyn specialist’s treatment,” wrote Judge Edith Jones. (Emphasis added.)

That is almost certainly because the term “complication” can encompass a wide range of events, from excessive bleeding and cramping to more serious outcomes, all of which, again, are rare.

Anti-choice advocates have made a habit of making hysterical and often inaccurate claims about the rates of complications related to abortion, because that notion is central to their new strategy of framing abortion restrictions as protections for women’s health. In fact the clear weight of evidence shows that it is the restrictions themselves that put women at risk.

If there were any doubt that this number is being used for political purposes, then one need only consider that those who rely on it to stir panic, also rely on the testimony of a doctor—John Thorp—who has been so discredited that multiple courts have eviscerated his evidence, finding that Thorp “displayed a disturbing apathy toward the accuracy of his testimony.”

None of this fear-mongering alters the facts about abortion: It is among the safest, and most regulated, medical procedure in the United States.

Back in 2013, when two congressional inquiries embarked on a fishing expedition to find evidence that abortion harms women, they failed to do so.

Even Texas, when extended the invitation to demonstrate any wrongdoing by abortion providers in that state, found no evidence suggesting that abortion harms women.

As Rewire wrote at the time, “Far from indicating that women were at risk of being harmed when seeking abortions, the documents show that the state already had one of the nation’s most proactive and aggressive systems to police abortion services and ensure that facilities were complying with those rules.”

Analysis Law and Policy

North Dakota Tells Roberts Court: The Time Is Now to End Legal Abortion

Jessica Mason Pieklo

A petition filed by attorneys for the State of North Dakota tells the U.S. Supreme Court that after more than 40 years, it is time to give back to the states the power to criminalize abortion.

Attorneys for the State of North Dakota told the U.S. Supreme Court on Thursday the time has come to overturn Roe v. Wade, and their state’s six-week abortion ban is the vehicle to do so.

The attorneys laid out their arguments in a petition filed with the Roberts Court in the fight over the nation’s most extreme anti-abortion measure. HB 1456, which Gov. Jack Dalrymple signed into law in March 2013, bans abortions as soon as a fetal heartbeat can be detected, which can be as early as six weeks post-fertilization. The law contains a very narrow exception for when the life or health of the patient is in danger, and subjects any provider who violates it to felony criminal charges.

Attorneys for the Center for Reproductive Rights challenged the law June 2013 on behalf of Red River Women’s Clinic, the state’s sole abortion provider. A federal district court judge temporarily blocked the ban in July 2013 before permanently doing so in April 2014, citing Roe v. Wade and Planned Parenthood v. Casey. He noted, “The United States Supreme Court has spoken and has unequivocally said no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability.”

The U.S Court of Appeals for the Eighth Circuit permanently blocked the measure in July 2015, but in its opinion stated that “good reasons exist for the Court to reevaluate its jurisprudence.”

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Attorneys for the North Dakota Attorney General’s office took that opening and ran with it. “[W]hen the Court in Roe v. Wade said that conception is a process over time, the Court was incorrect,” Thursday’s petition stated. “Rather, it is human development that is a process over time. Conception takes place as a singular event, at a specific time, and is complete at that moment.”

And at that moment, the attorneys argued, is when fetal viability begins. By marking viability at conception, states would arguably have the power to ban abortion post-viability, so at the time of conception. Using testimony from Dr. Jerry M. Obritsch to support their claims of such viability, they wrote that there is “substantial evidence that the legal and factual underpinnings of Roe v. Wade, and Planned Parenthood v. Casey are now invalid and should be abandoned.” The lower courts rejected that evidence as unreliable and in conflict with established law marking viability as the point when a fetus can survive outside the womb with little additional intervention.

Attorneys for the state also offered testimony from other medical providers, including Dr. John M. Thorp Jr., regarding what they described as the “body of scientific and medical evidence of the significant physical and psychological harm caused to women by abortion.” Thorp is a well-known player in anti-abortion litigation who usually testifies in support of clinic closure laws like the admitting privileges requirements in Texas that the Roberts Court will consider later this term. When Thorp testified in support of Wisconsin’s admitting privileges requirement last summer, U.S. District Court Judge William Conley blasted his credibility, noting “deep flaws in his analysis” that abortion was a dangerous medical procedure with high complication rates. In fact, abortion is safer than pregnancy and childbirth.

“Dr. Thorp has not only been retained in a number of cases to provide testimony supporting abortion regulations, including similar challenges to admitting privileges requirements [in Alabama and Texas], but has also submitted amicus curiae briefs on his own behalf to the U.S. Supreme Court in support of abortion-related regulations,” Conley wrote in the Wisconsin challenge. In other words, Thorp has a habit of advocating against abortion rights. Some folks protest abortion clinics. Thorp writes legal briefs explaining why, in his opinion, patients should not be able to access abortion care.

“His extensive involvement in lawsuits supporting abortion regulations calls into question his ability to separate personal beliefs from the medical science surrounding these regulations,” Conley continued.

Despite being discredited by courts in Alabama as well as Wisconsin, Dr. Thorp is a key witness for the State of North Dakota and its efforts to end legal abortion.

Even so, perhaps the most outrageous argument made by attorneys for the State of North Dakota is not that the Supreme Court should accept this evidence, which has been routinely rejected by other federal courts. It is the argument that North Dakota’s safe haven law—which allows parents to abandon newborns to the state within the first year of life with an employee at any North Dakota hospital and not face criminal prosecution, and which they characterize as the most generous in the nation—removes the “undue burden” of unwanted children and thus the need for constitutional protection of abortion rights.

It is worth noting that North Dakota’s abortion rates remain steady, despite the existence of its safe haven law.

“This new legal reality, transferring child care responsibility from mother to the State, means there is no ‘undue burden’ because there is no longer any need for abortion to relieve pregnant women from unwanted child care obligations,” the attorneys from North Dakota wrote. “Every child in America is legally ‘wanted’ and abortion of ‘unwanted’ children is no longer necessary.”

The petition continued, “After all, no woman wants an abortion just to experience abortion. North Dakota is not stopping women from participating in something intrinsically valuable; like a job, or school. No one, male or female, liberal or conservative, really wants to have an abortion for its own sake.”

They added, “What women seek is relief from parental obligations; now North Dakota provides that in a more just, compassionate, and safe way than allowing a pregnant woman to kill her child and suffer the consequences alone for decades.”

All told, the North Dakota petition for review is nearly 200 pages. Nowhere in those 200 pages was there any evidence, let alone recognition, of the medical and psychological dangers of forcing patients to carry to term an unwanted pregnancy, regardless of the reason for seeking termination. Instead abortion, according to the three men asking the Supreme Court to use North Dakota’s heartbeat ban to end legal abortion, is simply a mechanism for women to “seek relief from parental obligations.”

The depths of the misogyny informing the North Dakota petition is most apparent near the close of their request, when they stated that “[a]bortion may perhaps be remembered in the future as a crude way of removing the burden of child care.” That’s right, folks. Abortion is not a medical necessity, but a “crude” social convenience for avoiding the responsibilities of parenthood.

Anti-abortion advocates hope the Roberts Court takes up the case, along with Arkansas’ request that the Supreme Court take its appeal of a decision blocking its 12-week abortion ban. The Eight Circuit Court of Appeals heard the North Dakota and Arkansas cases together, and while the federal appeals court in both cases upheld lower court decisions striking the bans, both opinions made it clear the justices would have upheld them if they had some legal vehicle to do so.

So far, the Roberts Court has not been open to direct challenges to Roe and Casey’s viability framework, most recently letting stand a decision from the Ninth Circuit Court of Appeals blocking Arizona’s 20-week abortion ban. But as Lyle Denniston at SCOTUSblog reports, there are hints the Roberts Court may be more receptive this time around. Under Supreme Court procedures, a single justice can ask the other side to respond to a petition for review. According to Denniston, the Court has asked for a response to the Arkansas Supreme Court petition, despite the fact that attorneys for the two Arkansas doctors and their patients fighting the ban had decided a response to Arkansas’ request wasn’t necessary.

That means someone on the Roberts Court wants to hear more about the reasons why states think it’s time to overturn Roe.

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!