FLATTENING BREAST CANCER BY REMOVING THE
BREASTS: PROTECTING A WOMAN’S RIGHT TO CHOOSE
RECONSTRUCTION OF AN AESTHETIC FLAT CHEST AFTER A
MASTECTOMY
AMELIA LANDENBERGER*
ABSTRACT
Breast cancer takes away women’s choices. Many women decide to regain
control of their bodies and prevent future cancer or follow-up surgeries by hav-
ing a double mastectomy without any reconstruction, leaving a flat chest. When
their doctors refuse to perform this surgery or their insurers refuse to cover this
form of chest reconstruction, women are traumatized by their loss of choice in a
system that clings to the outdated idea that women cannot be feminine without
breasts. The Women’s Health and Cancer Rights Act of 1998 was intended to
protect women facing cancer from the second trauma of being unable to afford
their breast reconstruction. New York has passed legislation making it explicit
that flat chest reconstruction is breast reconstruction and must be covered.
Other states should follow suit, especially in the face of the surge in anti-trans
legislation banning gender-affirming surgeries for trans men, which could fur-
ther limit women’s options by banning the surgical creation of flat chests for
cancer patients. In the absence of such state legislative action, insurers and
courts should read the Women’s Health and Cancer Rights Act to include
reconstruction of both protruding breasts and flat chests in order to make
women whole again after cancer.
INTRODUCTION .............................................. 1198
I. AESTHETIC FLAT CLOSURE ................................. 1201
A. HIGH-RISK WOMEN AND THEIR GENETIC MUTATIONS........... 1201
B. PROPHYLACTIC MASTECTOMY VERSUS SCREENING ............. 1205
C. RECONSTRUCTION CHOICES ............................. 1208
1. Implant Reconstruction & Self-Tissue Reconstruction. . . . 1210
2. Self-Tissue Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212
3. Flat Chest Reconstruction/Aesthetic Flat Closure ........ 1213
D. THE INCREASING POPULARITY OF AN AESTHETIC FLAT CLOSURE . . . 1214
1. Media Coverage of Women’s Flat Closure Choice . . . . . . . 1214
2. The Impact of Social Media .......................... 1215
* Assistant Professor, Law Library, University of Akron School of Law. This article is dedicated to
all the women who went flat before it was cool, and to the women who will be empowered to make this
choice in the future. © 2024, Amelia Landenberger.
1197
3. The Visibility and Acceptance of Gender-Affirming Care
for Trans Men. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216
II. CHALLENGES IN ACCESS TO AN AESTHETIC FLAT CLOSURE ........... 1217
A. A PHYSICIAN’S FAILURE TO SUGGEST OR AGREE TO AN AESTHETIC
FLAT CLOSURE ..................................... 1217
1. Flat Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1218
2. Physician Ignorance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220
3. Physician Bias & Pressure towards Traditional
Reconstructive Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221
B. INSURANCE COVERAGE ................................ 1223
III. SOLUTIONS ............................................ 1223
A. THE WOMEN’S HEALTH AND CANCER RIGHTS ACT OF 1998
ALREADY ENCOMPASSES AESTHETIC FLAT CLOSURE ........... 1223
1. Defining the “Breast”................................ 1224
2. The Intent of the Act: Making Women Whole . . . . . . . . . . . 1227
3. “In a Manner Determined in Consultation with the
Attending Physician and the Patient”................... 1230
4. The Limits of Breast Reconstruction Under the WHCRA . 1232
B. NEW YORK’S LAW MANDATING COVERAGE OF AESTHETIC FLAT
CLOSURE AS A RECONSTRUCTION OPTION ................... 1233
C. LEGALLY MANDATED NOTICE OF ALL RECONSTRUCTION OPTIONS . . 1234
D. NON-LEGISLATIVE SOLUTIONS ........................... 1235
1. Medical Malpractice Litigation. . . . . . . . . . . . . . . . . . . . . . . . 1235
2. Social Change and Increased Awareness ............... 1236
CONCLUSION ............................................... 1236
INTRODUCTION
A woman should have the right to have a mastectomy in order to decrease her
high risk of cancer. She could then choose to have reconstruction of her breast(s)
or choose to only reconstruct the breast area without protruding breasts (going
flat).
1
A woman should have this right even if—and especially if—her choice
might not be the most popular choice or what her surgeon would choose for them-
self. All stages of this reconstructive surgery should be covered by her insurance,
just like her mastectomy.
Women’s choices regarding their cancer treatment have been limited in the
past. In 1971 Babette Rosmond discovered she had breast cancer. The standard
medical treatment at the time was the “extremely disfiguring” radical mastec-
tomy.
2
Barron H. Lerner M.D., The Right to Choose Your Cancer Treatment, N.Y. TIMES (June 13, 2012),
https://perma.cc/QYT9-5SGG (“It so happened that Ms. Rosmond had two friends with breast cancer,
The decision to mutilate women’s bodies in this way was typically made
1. See infra, I(C).
2.
1198 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:1197
while the women were unconscious in the operating room, and some doctors
didn’t take the time to explain it to women ahead of time.
3
This horror-movie sce-
nario
4
seems like a relic of the Dark Ages, if the Dark Ages had included reliable
anesthesia.
As medicine advanced, women were still denied proper care. In 1997, Janet
Franquet was denied breast reconstruction because her insurer considered it cos-
metic.
5
Janet’s story inspired the Women’s Health and Cancer Rights Act of 1998
(hereinafter WHCRA) which prevents insurance denials for post-mastectomy
reconstruction.
6
Janet died in 1999, at 33.
7
Because of her advocacy, the
WCHRA spares some women from the pain of battling cancer and insurers. But
the WCHRA has not always been enough, and insurers still fight to avoid paying
for certain procedures.
In 2009 Anne Marie Champagne chose to have a flat closure after a mastec-
tomy and her doctor seemed to have changed the plan for the surgery while she
was unconscious, leaving her with odd-looking flaps of skin instead of her choice
of a flat chest.
8
Fran Kritz, Some Women Want Flat Chests after Mastectomy. Some Surgeons Don’t Go Along.,
WASHINGTON POST (June 16, 2022), https://perma.cc/6ATP-3USK.
She stated:
Even though I went into surgery thinking we were in agreement on the
closure,” Champagne says. “I had made my wishes clear. To this he
replied that in his experience all breast cancer survivors reconstruct
within six months. When I heard his words I felt profound grief, a
both of whom had experienced psychological and physical side effects from radical mastectomy, the
extremely disfiguring operation routinely used by surgeons to treat the disease. The operation removed
not only the cancerous breast, but the underarm lymph nodes and both chest wall muscles on the side of
the cancer, leaving women with hollow chest walls and swollen arms.” Id. See also Ms. Rosmond’s
book on the topic, written under a pen name: ROSAMOND CAMPION, THE INVISIBLE WORM (1972). She
wrote about her friend’s experience: “She had a bad time for the simple reason that no one ever really
explained to her the trauma that often follows a radical mastectomy. . . . ‘The thing they never even
thought of telling me about–much less the definition of ‘radical mastectomy’—is the pain. The nerves in
the stump of pectoral muscle are screaming, the burned area gets hot and itchy after the X-ray treatment
and develops a thick, reptilian hide that sheds grayish-purple flakes for a year. They tell me the cramps
and vomiting are psychological. Maybe. All I know is, I was supposed to have a ‘topflight’ surgeon and
a ‘topflight’ radiologist. Now, nearly four years after the operation, I still have an immensely swollen
right arm and a chest that sheds gray flakes. And I can’t really type. You know what that means when
you think you’re a writer. . . .”“Id. at 13.
3. Lerner M.D., supra note 2. See also Rosmond/Campion, supra note 2 at 28 (“For nearly a century,
radical mastectomy, with or without irradiation, has been the accepted treatment of breast cancer in
almost every hospital in the United States. But there have been recent developments that raise a dramatic
question: is it morally acceptable for doctors to go ahead with something so drastic without fully
informing the patient of all possible answers? One top-ranking surgeon in a first-rate clinic has dared to
differ in his opinion of treatment: he believes that in cases in which a lesion is tiny and discovered very
early, removal of the lump itself and examination of surrounding tissue are all that is necessary.
(Obviously, this would not apply to a large cancer or to one that has already spread.)”).
4. Id.
5. 144 CONG. REC S12810-39 (daily ed. Oct. 21, 1998).
6. Id.
7. Tom Demoretcky, Janet Franquet, Pushed Law for Cancer Patients, NEWSDAY, May 6, 1999, at 63.
8.
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