Protect and Defend (20 page)

The cutting words shook Sarah badly. “You can’t be
that
surprised,” she answered. “Your friends from the Christian Commitment surely weren’t. Or did you somehow miss the little show
they
put on for Mary Ann’s benefit.”

For an instant, Tierney looked off balance. Glancing at his wife, he answered, “We arranged to park underground, and take the judge’s elevator. To protect our privacy as we thought you’d protect our daughter’s.”

“Well no such luck,” Sarah retorted. “Besides the usual harassment, there was a sign identifying the baby’s sex, and another showing a perfect twenty-four-week fetus, instead of one with a head the size of a bowling ball …”

“Stop,” Margaret Tierney cried out. Beside them, Sarah saw Fleming and Saunders, the Tierneys’ allies, look up from the counsel table.

“You stop,” Sarah snapped. “You invited these people from the Commitment. You’re so blinded by your own sanctity that you can’t see who they are.

“They don’t give a damn about you
or
her. Some of them don’t like Catholics either. They’re here to make a propaganda point, and keep their dollars flowing. Lord help them if they ever win—they won’t have anything left to do, like tormenting your daughter. Who you love almost, but not quite,
as much as your unique relationship with God and his
other
representatives on earth.”

Tierney flushed; the venom in her words startled even Sarah. “Mary Ann’s here,” she said more evenly, “because she wants to take responsibility for her own actions. Now it’s your turn. You’ve got the power to call off the dogs—
you’re
their lawyer’s ticket to this morality play. If these pickets are still out there tomorrow, then I won’t owe you an apology.”

Tierney’s effort at self-control was painful to watch; the stained cheeks and fixed stare showed the cost of his forbearance. “Which I wouldn’t accept,” he answered. “But you can tell me how it affected her.”

“She was in tears, of course. But if she has to, she’ll go through it again tomorrow.”

Margaret Tierney touched his hand. In a low voice, Martin said, “I’ll talk to their General Counsel.”

Turning, Sarah walked to her table. As she sat beside Mary Ann, her mouth felt parched.

Anxious, Mary Ann asked, “What did they say?”

Sarah took a swallow of water. “That they love you, and that they’re sorry you’re here.”

Mary Ann focused on the table while Sarah watched the harbingers of Judge Leary’s arrival—a court reporter settling behind her machine, the lanky courtroom deputy with the John Wayne manner emerging from chambers. Across from them, Martin Tierney murmured to his wife; he took a seat at the conference table, while Margaret, hands tightly folded, sat in the first row. Two of the judge’s law clerks drifted into the jury box.

“All rise,” the deputy called out. “The United States District Court for the Northern District of California is now in session, the Honorable Judge Patrick J. Leary presiding. God save the United States, and this honorable court.”

This somewhat baroque salutation, Sarah thought to herself, had fallen into disuse. But Leary insisted on it, and it had its effect—an awed silence marked his first appearance.

In black robes, Leary walked briskly to the bench and sat, looking from one party to another for a long silent moment, followed, Sarah thought, by a briefer glance at the cameras.

“Good morning,” he said. “Before we commence, I’ll reemphasize
the rules for any media which wish to attend this trial.

“There will be no mention in the media of the minor’s name, or that of her family.

“There will be no one in this courtroom without press credentials except for counsel, the minor, and her family.”

Pausing, Leary spoke directly to the camera, as though admonishing CNN. “The live television broadcast will beep out the minor’s name, and obliterate her face. The same rules apply for her family. I will—I repeat
will
—balance the public’s interest in a landmark case against the minor’s interest in privacy.”

Bullshit
, thought Sarah in disgust—the broadcast of the trial would inflame the issue in untold, uncontrollable ways, magnifying exponentially the chances that Mary Ann’s identity would be leaked, or betrayed by some biographical fact. Leary had rejected all her arguments; what he had omitted from his recitation then, as now, were the dictates of his own ego. But no doubt his sternness played well on television.

“Except for the minor and her family,” he continued, “all witnesses will be sequestered in the jury room until they’re called to testify.

“All witnesses, counsel, and the parties will refrain from making public statements until further notice.

“All transcripts of proceedings will use the plaintiff’s pseudonym, and any pages revealing her name and identity, or that of her family, will be sealed.

“
Any
member of the media who violates
any
of these rules will be barred from the courtroom.

“The trial will take six days, followed by closing arguments.” Leary paused again, surveying the courtroom. “Immediately thereafter, the court will rule, with a written opinion to follow within one day.”

At least he had given her that much, Sarah thought—with Mary Ann six months pregnant, swiftness was essential.

Abruptly, Leary turned to her. “Please call your first witness, Ms. Dash.”

With this, the trial of
Jane Doe et al. versus Barton Cutler, Attorney General of the United States
had begun.

Q
UESTIONING
D
R
. Mark Flom, Sarah tried to ignore the cameras, Judge Leary’s restless fidgeting, the tense scrutiny of Martin Tierney, until it seemed that she and Flom were talking in a vacuum.

Quickly, she established his unique credentials: that he was an obstetrician; that he possessed a law degree; that he was one of the few specialists in postviability abortions practicing on the West Coast. Then she pinned a fetal sonogram to an easel.

Here she paused: the size of the head, grotesquely large compared to its limbs, caused even Leary to sit still. When Sarah glanced at Mary Ann, her head was bowed, and her hands covered her face.

“The fetus is hydrocephalic,” Flom told her, “to a one-hundred percent certainty.”

“And how does that affect mental capacity?”

Flom straightened his tie. With his white hair, careful demeanor, and sensitive air, he was all Sarah could have hoped for, the antithesis of a callous doctor butchering babies without remorse. He glanced at Martin Tierney, then told Sarah firmly, “It is almost certain that, if born, the baby would have no brain.”

“As to life, Dr. Flom, what are the implications of
that?
”

“Grim. Most such babies would die shortly after birth, or within days. Though I am familiar with one who lived two years in an irreversible coma.” Flom’s measured tone took on a slight, but palpable, edge. “The baby’s existence was, in essence, both parasitic and expensive. The mother was sixteen, and couldn’t afford the bills. Understandably, no one wished to adopt him.”

“Objection,” Martin Tierney had stood abruptly. “I move to strike the doctor’s last remarks. The reference to adoption is irrelevant in this case—where
we
stand ready to care for the child—and gratuitous in any case.”

“Hardly.” Ignoring Tierney, Sarah spoke to Patrick Leary. “We’re asking the Court to rule this statute to be unconstitutional in
all
cases. The opponents of abortion claim that adoption is a humane alternative. Professor Tierney wants the benefit of that argument without facing its absurdity in the context of this law—”

“Enough,” Leary cut in sharply. “There’s no jury here. When the trial’s over,
I’ll
decide what’s relevant to my ruling. Move on, Ms. Dash.”

This was typical of Leary, Sarah thought, impatient, self-important, and short-sighted; thinking to push things forward, he could guarantee a free-for-all, a longer, sloppier trial where everything was admissible. It would not be pleasant. “Thank you,” she said with seeming deference, and turned to Flom. “What other defects might be apparent at birth?”

“Several, some less serious
only
in the most relative sense.” Flom began to tick them off on the fingers of one hand. “Heart defects and respiratory defects, both potentially fatal. Spasticity of the lower extremities. Others might include club feet, cleft palate, broad nose and neck, low-set and malformed ears. But the gravest, and insoluble, problem is the absence of a brain.”

At the edge of her vision, Sarah saw Mary Ann Tierney cringe. “Insoluble?” she asked Flom. “What about fetal surgery to relieve the hydrocephalus?”

“It’s been tried, by using utero-ventricular shunts to drain the fluid. In a relatively small percentage, less than thirty percent, the brain developed normally.” His voice lowered. “Of the rest, there was no improvement. Except that they lived a little longer than expected, perhaps in great pain. As a result, our profession has placed a moratorium on such surgery.”

Sarah found that Flom’s professionalism fed her confidence: his testimony followed the grid they had designed, after hours of work. “Then let’s consider,” she continued, “the potential effects on Mary Ann Tierney of taking this fetus to term.”

Flom nodded briskly. “At term, the hydrocephalic fetus is
almost always in the breach position, problematic in itself. But it’s the head which poses the greatest risk to Mary Ann.”

Walking to the easel, Sarah removed the blowup of the sonogram. As she did, she felt the camera follow her, saw those at the defense table—Martin Tierney, Barry Saunders of the Christian Commitment, and Thomas Fleming of the Justice Department—watching her intently.

Beneath the sonogram was a depiction of a fetus in the womb, feet first. Once more, its head was horribly swollen. “Is this an accurate portrayal,” she asked Flom, “of the position and proportions of Mary Ann Tierney’s fetus, should it go to term?”

“It is,” Flom answered crisply. “In particular, note the head. It’s roughly the size of a cantaloupe or, perhaps, a soccer ball.”

From the bench, Leary seemed transfixed by the fetal head. “Your Honor,” Martin Tierney interjected, “Dr. Flom’s choice of language is both inflammatory and inhumane. This is not a ‘soccer ball,’ it’s the head of a living child—our grandchild, our daughter’s child. This testimony is calculated to appall while avoiding what Dr. Flom apparently considers the small matter of infanticide. If he considers it at all.”

Listening, Sarah was struck by a curious sense of duality. Tierney’s demeanor reflected a genuine passion. Yet his rhetoric suggested that he, like Sarah, was well aware of the cameras and their impact on Leary and a potential audience of millions, and therefore saw the trial as both legal and political. If so, she was prepared.

“The living child in question,” she told Judge Leary, “is Mr. Tierney’s child, Mary Ann. Dr. Flom is testifying to the facts of the birth Mr. Tierney wishes this court to force on her. Which facts include—whether he cares to acknowledge it—the danger to Mary Ann Tierney of a head the size of a soccer ball.”

Leary’s milk-white face betrayed the flush of irritation: speeches from lawyers offended his sense of a tight courtroom, with himself at its center. Abruptly, the judge asked Flom, “Soccer ball, watermelon, or child of God, what about a C-section? Can’t you get this baby out the same as millions of other babies?”

Flom looked momentarily astonished, then recovered.
“That depends, Your Honor, on what kind of cesarean section you’re asking about.

“To deliver this baby, you’d have to perform a classical C-section. That’s no longer performed in the case of a normal fetus—it’s too radical and risky in any case, and worse for a fifteen-year-old girl whose body may not have fully matured.” Pausing, he moved his hand in a slicing gesture. “You’d have to bivalve the uterus, Judge Leary. That means roughly a twelve percent risk of rupture in Mary Ann’s next pregnancy, creating at least the five percent risk to reproductive capacity identified by her own doctor.”

Leary hesitated; to Sarah, he appeared to be looking for an exit. “Your Honor,” she interposed, “we have an exhibit, pre-marked as plaintiffs’ three, which may clarify this testimony.”

Curtly, Leary nodded. Walking to the easel, Sarah removed the fetal diagram. The photograph beneath it was a vivid color.

Leary blanched visibly. With deliberate calm, Sarah asked, “Can you identify that photograph, Dr. Flom?”

“Yes. It’s a photograph of a uterus which ruptured following a classical C-section. Aside from the bleeding, you’ll note that it appears to have exploded in the course of childbirth. Which, in essence, it has.”

Silent, Sarah let his last remark sink in. Standing beside the easel, she saw Margaret Tierney turn away.

So, apparently, did Leary. “At this time,” he said, “we’ll take a fifteen-minute break. Please return promptly.”

When the trial resumed, Mary Ann did not look at her parents, nor they at her.

“As someone with a degree in law,” Sarah said to Flom, “and a doctor who has performed late-term abortions, do you believe it’s legal—without this statute—to abort the normal fetus of a healthy teenage girl?”

“Objection.” This time it was Thomas Fleming, from the Justice Department. “You’re asking the witness to render a legal opinion, which is the prerogative of the court. Not to mention one which is irrelevant: this law, after all,
does
exist.”

“Which is why Mary Ann is forced to be here,” Sarah countered. “The question is whether it’s necessary to stem an
onslaught of late-term abortions, or if it simply operates to deny an emergency medical procedure to pregnant minors.”

Leary nodded. “I’ll allow it,” he said to Fleming. “But it’s nice to know you’re here.”

In the jury box, Leary’s clerks, both men, grinned at each other. It was one more thing Sarah disliked about Leary: his penchant for showing off, at the lawyers’ expense, to his paid gallery of retainers. And though his ruling was apt, his barb at the government’s quiescence might make Fleming more active, to Sarah’s detriment.