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Legal and Ethical Dilemmas in Abortion Counseling
1/1/2004
Carolyn Stone, Ed.D.
Thursday January 01, 2004
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Regina is 16 years old and pregnant. She is considering an abortion and comes to you, her school counselor, seeking help. Regina says she really needs to talk her options over with an adult who is “outside of her family.” Can you discuss Regina’s pregnancy and her consideration of an abortion with her? Are you required to call Regina’s parents and tell them about her pregnancy?

We owe our students’ a trusting relationship. Yet, there is the inescapable fact that as school counselors our obligations extend beyond our students to include parents, teachers, administrators, the school district and the community. There are daily legal and ethical complications of working with minors in schools, especially in the value-laden issue of abortion. This above scenario involves this student’s right to privacy but also the family’s religious beliefs, values about sexual conduct, parental rights to be the guiding voice in their children’s lives and the possibility of duty to warn about a medical need. How do school counselors respect students’ confidences and balance the rights of minors with the rights of their parents?

Occasionally, school counselors’ legal obligations are underscored by court cases, as in the case of Arnold vs. Escambia County Board of Education (1989). The Arnold case involved a student who told her counselor but not her parents about her pregnancy.

Under what circumstances might a counselor be held liable for giving abortion advice? In the Arnold case, Jane and John, two high school students, filed suit along with their parents against the School District of Escambia County, Ala., alleging that the school counselor and the assistant principal coerced and assisted Jane in getting an abortion. Further, the accusation was that the assistant principal paid someone $20 to drive Jane to the abortion clinic and that the assistant principal and the school counselor hired Jane and John to perform menial tasks to earn money for the abortion. John, the father of the baby, and Jane claimed their constitutional rights were violated, including involuntary servitude and free exercise of religion. The John and Jane parents claimed their privacy rights were violated when the school counselor didn’t informed them Jane was pregnant and when the counselor allegedly urged the students not to tell their parents. The trial court dismissed the suit, and the plaintiffs appealed.
The U.S. 11th Circuit Court of Appeals partially reversed the trial court’s decision and found Jane’s privacy claim and both students’ religious claim as worthy of further consideration by the courts. In other words, if Jane and John’s religion prohibited abortion and the school counselor and assistant principal coerced Jane and John to proceed with Jane’s abortion, then their constitutionally protected right of freedom of religion might have been violated. Further, Jane’s constitutionally protected right to choose to carry or abort a pregnancy had been violated if she was coerced into having an abortion. Jane’s parents claimed their privacy rights were violated when the school counselor and assistant principal coerced Jane into having an abortion and urged her and John to refrain from discussing with a parent whether or not Jane should have an abortion. The case was remanded back to the lower court for a trial to take place.

In fact finding, the trial court found that Jane visited a physician who confirmed she was pregnant and provided her with abortion information upon her request. John and Jane told the school counselor they weren’t supposed to be seeing each other and didn’t want their parents to know about the pregnancy. The school counselor presented various alternatives and repeatedly urged Jane and John to consult with their parents. Jane and John said they felt pressured to have an abortion by the school counselor when she asked them how they planned to care for the baby and where they were going to take the baby. During the trial, Jane admitted the counselor’s questions were good, that she alone made the decision to have an abortion and that there was no coercion on the part of the school counselor. John admitted he had chosen not to tell his mother. The trial court concluded the students were not deprived of their free will, had chosen to obtain an abortion, had chosen not to tell their parents and that there was no coercion on the part of school officials.

Value-laden Issues
The question remains, “Can counselors be held liable for giving abortion advice to pregnant minors?” In the course of fulfilling their job responsibilities, counselors may assist students with value-laden issues such as abortion if they are competent to give such advice and if they proceed in a professional manner. School counselors must consider that their responsibilities extend beyond the student to parents and guardians and take great care in abortion counseling. In “School Law for Counselors, Psychologists, and Social Workers, the authors state, “If an immature, emotionally fragile young girl procures an abortion with the help of a counselor, under circumstances where reasonably competent counselors would have notified the parents or would have advised against the abortion, liability for psychological or physical suffering may follow. The specific facts and circumstances must always be considered.”
Complicated, value-laden counseling requires school counselors to assess the student’s developmental age and ability to make informed, sound decisions. School counselors must continually ask themselves what the reasonably competent professional would do under similar circumstances. Consider if Jane had been 13 years old. Would the school counselor have responded differently?

In the absence of a school board policy expressly forbidding counselors to discuss abortion, school counselors can discuss the topic with students. School counselors must be ready to argue that they behaved as the reasonably competent professional would have. Coercion and imposing one’s values on a minor student would not be appropriate actions of a reasonable and professional school counselor.

Recommendations for School Counselors
Following are recommendations for the school counselor when counseling students in the area of sexuality or abortion:

Know your school board policy. School counselors can sometimes find guidance in school board policy and must adhere to policy.

Consider developmental issues when making decisions. When working with minors on value-laden issues, it is especially important to consider the minor’s chronological and developmental level to determine whether an intervention is needed and how much is required. School counselors promote the autonomy and independence of a minor and carefully consider how much they need to support students to make their own decisions without interference or breach of confidentiality. Primary to the counselor’s decision-making is the seriousness of the minors’ behavior in the framework of their developmental milestones and their history of making informed decisions.

Consider the impact of the school setting and parental rights. Parental rights are more complicated when a minor is in a school setting since parents send minors to school for academics, not for personal counseling. Therefore, when a minor seeks counseling in a value-laden area such as abortion, which may be related to the parents’ religious beliefs or rights to be the guiding voice in their children’s lives, school counselors should give consideration to parents’ wishes. The onus is not on the school counselor to know the religious beliefs of all students and their families. However, if a student confides that religion is at issue or if the counselor learns this from another source, then it is appropriate to consider this information when determining how to proceed.

Consider diversity issues. Make each decision for ethical dilemmas in context and consider a minor’s ethnicity, gender, race and sexual identity.
Consult with a supervisor or respected colleague, examining the good and bad consequences of each course of action, striving to minimize the risk to the student while respecting the parents’ inherent rights. It is ethical, lawful and beneficial to inform and consult with supervisors and colleagues.

Know yourself and your values. Be sure you are aware of your own values in sensitive areas such as abortion and understand the impact of those values on your ability to act in the students’ best interest. Referring students to a colleague is sometimes the most appropriate action.

Avoid involvement in a student’s medical care. Avoid referring students to birth control clinics and a never agree to take students for any kind of medical procedure, especially a procedure as controversial as abortion.

Carolyn Stone, Ed.D., is an associate professor and school counseling program leader, University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.


References
American School Counselor Association.  (1998).  Ethical standards for school counselors.

Arnold v. Board of Education of Escambia County, 880 F. 2d 305 (Alabama 1989)

Fischer, L., & Sorenson, G. P. (1996).  School law for counselors, psychologists, and social workers (3rd ed.).  White Plains, NY:  Longman.

Isaacs, M. L., & Stone, C.  (1999).  School counselors and confidentiality: Factors affecting professional choices.  Professional School Counseling, 2, 258-266.
 
Remley, T.P. Jr., & Herlihy, B.  (2001).    Ethical, legal, and professional issues in  counseling.  Upper Saddle River, NJ:  Merrill Prentice Hall.

Salo, M. M., & Shumate, S. G.  (1993).  Counseling minor clients.  The ACA Legal  Series, 4, 73-78.

Stone, C.  (Speaker).  (2001).  Legal and ethical issues in working with minors in  schools [Film].  Alexandria, VA:  American Counseling Association.

Zirkel, P. (1991).  End of story.  Phi Delta Kappan,  72, 640- 642.

Zirkel, P. (2001b).  A pregnant pause?  Phi Delta Kappan, 82, 557-558.