DIFFICULT MORAL QUESTIONS

Question 84: May one certify that one has counseled a woman seeking an abortion?

In some places where abortion has been legalized, the laws require women seeking abortions to accept counseling about the availability of alternatives. This requirement should ensure that women will receive at least some information that might lead them to change their minds. The results of counseling are mixed; most women do not change their minds, but some do.

They are more likely to do so if counseled by people who consider abortion morally unacceptable. This suggests that prolife people should serve as preabortion counselors whenever they can. The qualifications required vary from place to place, but in many places prolife physicians, nurses, social workers, and/or others can become counselors.

But there is a problem. Since the law requires counseling as a condition for obtaining a legal abortion, a woman who decides to go through with the abortion despite the counseling must be able to show she has been counseled. Jurisdictions requiring counseling therefore require counselors to give each woman they counsel a legally prescribed form certifying that the requirement has been met. The woman gives this certificate to the abortionist, for whom it serves, in effect, as a legal license to do the abortion.

Some Catholics have asked whether they may serve as counselors and provide the certificate, and I am not sure whether doing so would be morally unacceptable cooperation with abortion. I am asking various moral theologians for an opinion, and would be glad to have yours.

One point must be clarified to obviate a possible misunderstanding. In some jurisdictions whose laws permit abortions only on certain “justifying” indications, an abortion can be done lawfully only if a social worker, psychiatrist, physician, or individual of another officially designated type certifies that at least one specified indication obtains. The certification at issue in the present question differs. The counselor certifies only that the woman has been counseled about the availability of alternatives to abortion.

Analysis:

This question concerns cooperation in abortion. Some hold that counselors who provide the legally required certificate formally cooperate in the abortion. They argue that in providing the certificate counselors intend to do what the law authorizing abortion requires, and so share that law’s intention to facilitate abortion. This argument is not sound. Though counselors do intend to fulfill the law’s requirements regarding counseling when they provide the certificate, and though having the certificate is a legally required condition for obtaining a lawful abortion, counselors need not intend abortion in providing the certificate. For the committed prolife counselor, counseling is a means of changing women’s minds about getting an abortion; promising women the counseling will be certified is a means to motivate them to accept it; and providing the certificate when counseling fails to dissuade is keeping the promise. By providing the certificate, therefore, the counselor cooperates in the abortion only materially, and this material cooperation can be justified.

The reply could be along the following lines:

Some moral analysts (moral theologians or ethicists), whose position on this matter I do not accept, hold that counseling women about abortion in this context and providing them with certificates that they have been counseled constitute formal cooperation—which never can be morally acceptable—in the gravely evil act of abortion. They acknowledge that prolife people undertake such counseling for the sake of the good end of trying to dissuade women from going through with their plan, and also that counselors often can provide women not only with information about alternatives but with at least some reasons to choose them. Yet they argue that, in agreeing to provide certificates to women who are not dissuaded, counselors share the intention of facilitating abortion. Therefore, they conclude, in agreeing to provide the certificate, counselors choose a bad means to their good end.

In trying to show that preabortion counselors share the intention of facilitating abortion, such moral analysts point out that most, if not all, women who want abortions submit to counseling only in order to obtain the certificate, which they regard as nothing but a means of obtaining an abortion. Also, these analysts point out, though those wishing to be appointed or recognized as qualified counselors hope to prevent abortions, they choose as their means the role of preabortion counselor as defined by the relevant laws. The purpose of those laws is clear, they argue: They were enacted to replace laws forbidding abortion so that at least some women who want abortions could obtain them legally. So, they reason, in agreeing to provide certificates to women who are not dissuaded, counselors commit themselves to meeting a requirement for a lawful abortion, precisely as that requirement is specified by the laws legalizing and regulating it, and thus share the intention of facilitating abortion, which was the reason for enacting those laws. Therefore, these analysts conclude, in undertaking to certify that the counseling requirement has been met—a necessary condition for obtaining an abortion legally—even prolife counselors intend to facilitate abortion, and thus formally cooperate in it.

It seems to me that this analysis includes four sound points. First, if committing oneself to providing the certificate needed to get a lawful abortion is formal cooperation in abortion, making that commitment cannot be justified even by the laudable purpose of dissuading women from abortion. A good end cannot justify a means immoral in itself. Second, the wish of prolife counselors that no law would permit abortion and no woman they counsel would go through with her plan need not preclude their sharing the intention of facilitating abortion; for an agent’s intention in choosing to do something is specified, not by what is wished for, but by precisely what is chosen, that is, the object of the act proposed through practical reasoning.²⁷¹ Third, the woman intent on abortion generally submits to counseling solely to obtain the certificate, which for her and the abortionist is no more than a necessary condition for lawful abortion. Fourth, prolife people who undertake to do the counseling required by law in order to dissuade women from getting abortions do choose as their means to fulfill the role of preabortion counselor as defined by relevant laws, and that role does include providing the certificate those laws prescribe as a necessary condition for obtaining a lawful abortion.

Nevertheless, I think the analysis confuses the obvious intention of women bent on an abortion and provisions in laws facilitating it with those laws’ other provisions regarding counseling and its certification. The latter provisions do not thereby facilitate abortion, although the laws’ more central provisions do just that. The counseling requirement limits the number of abortions by giving every woman seeking an abortion an alternative—that is, some information and motivation to change her mind. The legislation (or, in some cases, later administrative policy) required certificates because few if any women seeking an abortion would accept the counseling unless forced to prove they had done so by producing a certificate. Thus, while the woman intent on an abortion and the abortionist regard the certificate merely as a necessary means for getting an abortion and doing it lawfully, prolife counselors can agree to give the certificate solely because that is a necessary means to obtaining the opportunity to counsel women and getting them to accept counseling which, in turn, is a means of preventing abortions—despite the laws’ other provisions facilitating them.

The point can be clarified in two ways.

The first is by comparing the situation in countries requiring counseling and its certification with the situation in the United States, where the Supreme Court legalized abortion by judicial fiat, and proponents of women’s so-called right to choose abortion have strongly opposed much milder restrictions than the one under discussion here. If a state legislature passed a law requiring every woman seeking an abortion to accept counseling, the law would be pointless if it allowed women to obtain a lawful abortion without being counseled, and so it also would have to require certification of counseling by the counselors. While this whole law, including its certification requirement, would be condemned vehemently by proponents of the “right” to abortion, they would be mollified if some court struck down the certification requirement but left the rest of the law standing as a dead letter.

The point can be clarified in a second way by comparing the requirement of counseling and its certification with the requirement in some jurisdictions that there be certification of some supposedly justifying indication for abortion. Laws specifying indications and requiring their certification do thereby facilitate abortion. Replacing laws entirely forbidding abortion, those authorizing it in some cases required certification of indications to identify those cases while also continuing to prohibit it in others. Determining whether an indication exists does nothing to lead a woman who wants an abortion to change her mind, and the deliberation that ends in giving or refusing the certificate simply applies the law authorizing abortions to a particular case. Not only abortionists and women seeking abortions but the people doing such certifications must regard certifying an indication as licensing an abortion.

Someone might object that in some places both counseling and indications requirements are in force, and the same individuals certify both simultaneously. But the fact that in some jurisdictions the two things are combined in a single process does not eliminate their significant distinction in those jurisdictions where counseling focuses exclusively on alternatives to abortion.

Having distinguished between, on the one hand, what the laws are meant to bring about in requiring the certification of counseling and, on the other hand, their provisions legalizing abortion and the intention of women who accept counseling solely to obtain a certificate, it is easy to see the sharp difference between the woman’s and the counselor’s intentions, provided one bears in mind what the certificate is. It is not a statement that an abortion is indicated or justified, but only a statement, in prescribed form, that the required counseling has been done. True, a woman bent on abortion submits to counseling in order to obtain the certificate as a means to getting an abortion; but that intention need not enter into the counselor’s practical reasoning. For the counselor, counseling is a means of informing women, changing some of their minds, and so saving some babies; undertaking to certify counseling and promising women that it will be certified are means to obtain the opportunity of counseling and to motivate women to accept counseling; and providing a certificate when counseling fails to dissuade a woman from having an abortion is fulfilling the undertaking and keeping the promise.

Providing a woman with a certificate does enable her to get an abortion, but only because the counselor’s effort at dissuading her has failed. The counselor in no way intends to facilitate abortion, but only materially cooperates with women who have not been dissuaded. Sometimes material cooperation is not morally acceptable, but in the present case it seems to me it can be justified. Though someone who thinks that abortion is sometimes morally acceptable is likely to slip into formal cooperation with at least some of the women seeking an abortion, that temptation hardly will arise with counselors who are convinced that abortion is always gravely wrong. For such counselors, who are firmly committed to saving babies’ lives, the point of the material cooperation is to make it possible to bear witness to the mother in the hope that she will change her mind. Moreover, giving the certificate will not motivate any woman to have an abortion, and carrying out the counseling precisely in order to save unborn babies whose lives are at risk is fair to them. Indeed, considering that some of those lives will be saved if committed prolife counselors do the counseling and putting oneself in the babies’ place, one can see that the Golden Rule calls for an effort to dissuade women from abortion.

It might be objected that, since the obligation to keep promises is not absolute, the Golden Rule also demands that the counselor break the promise and not provide the certificate, so as to save babies’ lives. That objection fails for two reasons. First, while breaking promises sometimes can be justified, lying never can be, and making a promise one intends to break is a lie. Counselors must mean to keep their promise when they make it—that is, people who undertake to give preabortion counseling must intend to provide the expected certificate if their counseling fails. Second, regularly breaking the promise would result in the counselor’s dismissal, and doing so in a particular case generally would not stop a woman bent on abortion. Still, if a counselor, having sincerely promised to provide the certificate, were to discover in some case that breaking the promise very likely would save the baby’s life, then, in my judgment, he or she should break it.

Again, someone might object: Suppose a law both forbade suicide unless those wishing to commit it accepted counseling and also required that counselors who failed to dissuade someone from suicide end the session by dispensing a cyanide capsule for use as the sole lawful means of committing suicide. Would it be morally acceptable for a prolife person to seek the role of presuicide counselor as defined by that law?

My answer is no. But not because providing cyanide capsules at the end of such prolife, presuicide counseling would necessarily be formal cooperation in suicide. The prolife counselor would give the capsule in order to keep his or her promise—a promise made in order to get suicidal people into counseling. So, the cooperation still would be only material. Even so, giving the cyanide capsule would be morally unacceptable material cooperation in suicide, chiefly because it always would be scandalous. People—primarily but not only those counseled—would think the legislators who set up this system and the counselors who participated in it regarded suicide as morally acceptable for those who undertook it deliberately rather than rashly or as a result of some treatable psychological condition. That interpretation, while not strictly necessary, would be plausible, because the requirement of counseling could be enforced adequately by requiring a certificate. So, the requirement that counselors dispense cyanide capsules, which are in themselves deadly, would suggest that the counseling had a different purpose: not to deter suicide as such, but only to forestall rash acts of suicide.

By contrast, certification that preabortion counseling has taken place is a necessary condition for any effective counseling requirement, since without certification the counseling would become optional and the counseling requirement would pose no obstacle to obtaining an abortion. Therefore, giving a woman a certificate of preabortion counseling is not scandalous, since people realize why the law provides for it and know that prolife counselors who do it consider abortion morally unacceptable and are trying to dissuade every woman from it, no matter how deliberately a woman is acting.

271. See John Paul II, Veritatis splendor, 78, AAS 85 (1993) 1196, OR, 6 Oct. 1993, xii; cf, appendix 1, below.