Protect and Defend (44 page)

Now Leary was quiescent, eyes focused not on Sarah or Mary Ann, but his notes. Apprehensive, Sarah wondered if this was because he had written his opinion and now—faced with her arguments and Mary Ann herself—felt chastened. She waited until he looked up again, his expression blank and unrevealing.

“This law,” she told him, “is a tragedy in the making. Only this court can end it.”

Sarah drew a breath. “On behalf of Mary Ann Tierney,” she finished, “and every minor girl in America, I ask the court to declare the Protection of Life Act unconstitutional.”

“U.S. C
ONTENT
to Watch in Tierney Case,” the
New York Times
had headlined its article. So Sarah was not surprised when Thomas Fleming told Leary that the government would rest on its carefully constructed brief supporting the statute; citing a “senior adviser to the President,” the
Times
had reported that the “new administration does not wish to squander any goodwill in this bitter dispute between parent and child, particularly when Judge Masters is certain to be grilled by Senate partisans of both.”

Sarah’s remaining question—who would argue for the fetus—was answered when Barry Saunders stepped forward. “Your Honor,” he began, “Martin Tierney will speak on behalf of his grandson. But, in fairness, someone should speak for the Tierneys.

“To paraphrase Ms. Dash, this case is not about rape,
or
incest,
or
parents who are brutal and indifferent. It is not about
any
of the unseen horrors she would have us believe are commonplace.”
He turned, symbolically drawing in the Tierneys with a broad sweep of his hand. “It is about two parents so devoted to their daughter that they have risked her anger to protect her soul. And so—in Ms. Dash’s perverted logic—their act of love becomes yet
another
reason why no
other
parents should be allowed to invoke this statute.”

Apprehensive, Sarah glanced at Leary; the argument was shrewdly pitched to his sense of parental prerogatives. Saunders continued with an air of weariness. “Of course Mary Ann is angry. Of course there’s a terrible strain between this young girl and her parents. Because like good parents everywhere, every day, they love her too much to please her.

“How many of us, as parents, have had an angry son or daughter slam a bedroom door in our face? How many of us have endured those terrible words—
‘I hate you’
—from the person we’d give our life for? How many of us live for the day when our teenager becomes an adult, and a parent, with the wisdom to say,
‘I never understood how much you really loved me’?
”

Mary Ann, Sarah noticed, averted her eyes from Margaret Tierney. “As parents,” Saunders continued, “we pray for the gumption to protect our children from themselves, to place their best interests above the transient ease of capitulating to some passing but dangerous desire. We hold fast to the highest duty of parents: to deliver our child to adulthood whole—in mind, in body, and in spirit.

“But
never
have I seen two parents as brave as
these
.

“Faced with the scrutiny of millions, and an attack on their motives more cruel and twisted than their worst nightmares could anticipate, their love has endured. And today they express that love in its purest form:
‘No.’

“They do not want to. They wish they didn’t have to. Their deepest wish is to somehow turn back time, to be as they were on Mary Ann’s fifteenth birthday. But that is not their fate as parents—
this
is. And so they come before the court and say, ‘Help us deliver our daughter to adulthood whole.’”

Stepping back, Saunders stood beside Tierney. “This man and woman know their daughter better than Sarah Dash ever can. If
they
say that this abortion will damage her more surely than childbirth ever could, believe them. Do
not
, Your Honor,
make these best of parents the basis for depriving
other
loving parents of their rights.”

They were making her the issue, Sarah saw—the feminist lawyer who had come between the Tierneys and their daughter. But more disturbing to Sarah was the look which passed between Leary and Martin Tierney, the compassion of one father for another.

At the podium, Tierney fished out reading glasses, then fumbled with his notes, nervous gestures that even Sarah found humanizing. Fearful that Saunders’s florid but effective speech had already swayed the judge, she braced for more attacks.

“In my daughter’s name,” Tierney began, “Ms. Dash advances an implicit but chilling goal: abortion at
any
time, for
any
reason, if
any
part of the child remains inside the mother.”

It was so distorted that Sarah had to stifle the urge to protest. “I say ‘Ms. Dash,’” Tierney continued in a voice thick with emotion, “because I cannot believe that this is the considered wish of my fifteen-year-old daughter. More than any impact on the law,
she
is our deepest concern. But because this arises in the context of law, I first must speak of law.”

With an abruptness that Sarah found unnerving—and, she thought, must have always daunted Mary Ann—Tierney the loving father became the cool and methodical debater. “Under
Roe
and its progeny,” he continued, “Congress has the power to regulate, and even forbid, the abortion of a viable unborn life. The
only
restraint on this power is that any restriction not place at risk the mother’s life or health.

“The Protection of Life Act does
not
narrow the law—it merely codifies it. It allows abortion if there is a ‘substantial risk to the minor’s life
or physical
health.’ And if her
parents
do not acknowledge such a risk, a
court
can authorize abortion on that basis.

“So what is Ms. Dash’s argument? That a risk need not be
substantial
, or even
tangible
. That parents have no business meddling in these questions. That
any
law which provides otherwise violates the right of an adolescent to settle these matters alone.”

With each use of her name, Sarah bridled at Tierney’s pretense that she, not Mary Ann, was petitioning the court. Turning to Sarah, Tierney continued. “As she has so thoroughly brought to light, there is no way to quantify our agony as parents, or our fears for Mary Ann. We know far better than Sarah Dash the pain of infertility. But to make a one or two percent risk of infertility grounds for an abortion means abortion on demand: there will always be some doctor, somewhere, willing to shrug his shoulders and say, ‘One percent? I guess so.’

“But even
that
loophole,” Tierney continued, “does not satisfy Ms. Dash. To her mind, any statute which does not specify ‘mental health’ as grounds for abortion is not merely unconstitutional—it is cruel.”

Tierney’s voice hardened. “What is cruel, Your Honor, is to sanction this barbaric procedure—this infanticide by dismemberment—any time that a doctor declares that motherhood will damage a minor’s emotional well-being.

“According to whom? Measured by what? One percent?” Tierney’s voice became soft again. “And while mother and doctor decide his fate, the unborn child awaits their judgment, with no one to protect him.”

Despite her anger, Sarah felt with dismay how skillful Tierney was: by making Sarah the target, then stretching her arguments to their breaking point, he distracted Leary from Mary Ann’s dilemma. “Do I exaggerate?” Tierney asked rhetorically. “Then consider this case.

“The one likelihood Ms. Dash can point to is that our grandson will lack a cerebral cortex, and even
that
is less than certain. But there is no case, anywhere, which allows us to murder a viable fetus because it may not live.

“Not only God’s laws, but the laws of science, argue against such arrogance.

“Every day, new procedures save the lives and health of fetuses who once were hopeless. Every month, medicine lowers the age at which a premature child can live outside the womb. Every year, the march of science confirms God’s love for the unborn.

“By acting to protect our grandson, we also protect
them
— and our daughter.” Pausing, Tierney shook his head in sorrow. “If, someday, some young woman must look in the mirror,
and wonder how many adoptable babies have been sacrificed on the altar of her ‘mental health,’ we do not want that woman to be Mary Ann.

“She is
our
daughter, and
we
know her better than anyone. And Ms. Dash summons in our place a phantom army of rapist fathers, alcoholic mothers, and brutal siblings.”

At this, Leary raised his eyebrows in seeming challenge. Resolute, Tierney told him, “I do not deny these tragedies exist. Nor can
Ms. Dash
deny the reality of many more loving parents. Do not—I implore you—deny
their
right to act upon that love at the most critical moment of a daughter’s life.”

Leary’s eyebrows lowered, replaced by his former look of empathy. “Nothing in
our
daughter’s life,” Tierney finished quietly, “tells us that she can murder our grandson without killing her own soul. And God help her if the doctor’s scissors pierce a normal brain.”

Next to Sarah, Mary Ann closed her eyes. In the silent courtroom, Martin Tierney bowed his head. “God help her,” he repeated with prayerful softness. “Because Sarah Dash cannot help her then. Nor, I fear, can we.”

K
ERRY
K
ILCANNON
was picking up the telephone when his secretary appeared in the door to the Oval Office. “Clayton just buzzed me, Mr. President. The judge is announcing his decision.”

Kerry put down the phone. “Where are they?” he asked.

“The small conference room.”

Kerry hurried through the corridors, creating the stir of excitement—raised heads, faces gazing out from offices— that now attended his smallest movement. Entering the conference room, Kerry found Clayton Slade, Adam Shaw, and
Kit Pace watching a television placed on the lacquered table. On the screen, Patrick Leary was taking the bench.

“Any bets?” Kerry asked.

“One,” Kit answered. “The ratings will be the highest since the O.J. verdict, and half the country will go nuts.”

“Which half?”

“The pro-choicers,” Clayton opined. “This judge isn’t dumping on Mom and Dad.”

That was right, Kerry guessed. He had begun as a lawyer, prosecuting tough domestic violence cases, and had developed an unerring knack for reading both judges and juries; his long-distance sense of Patrick Leary was one of patrimony, a reflexive belief in the wisdom of fathers. “Just as well,” Adam observed. “For us, the less controversy, the better.”

Kerry sat beside Kit. The group fell silent; across the country, he supposed, similar scenes were occurring—clusters of people who, their emotions aroused by the trial, now awaited its resolution. Kerry’s own tension surprised him.

“This case,” Patrick Leary began, “confronts the court with painful choices …”

For once, Sarah thought, Leary seemed daunted by his power to change lives; he did not preen, and his voice was dry and scratchy. Taut, Sarah felt Mary Ann’s fingers slip into hers.

Across from them, Martin Tierney watched the judge with a rigid intensity. However complex his motives, Sarah guessed, for Tierney this moment had a stark simplicity—life or death for his grandson. Her fingers tightened around Mary Ann’s.

“In the Protection of Life Act,” Leary continued, “Congress faced the difficult task of balancing our interest in protecting unborn life against the right of the mother to protect her own life and physical health.

“To this delicate equation they added a separate but central concern: fostering our societal interest in parental involvement …”

Sarah did not like the sound of this; Leary’s framing of the issues sounded too deferential to Congress, too sympathetic to the Tierneys. Reading from the text, Leary paused but did not look up.

“After the deepest consideration,” he announced, “this court finds the following:

“First, that the Protection of Life Act does not abridge
Roe v. Wade
.

“Second, that the potential harm to the plaintiff does not involve a ‘substantial risk’ to ‘life or physical health’ …”

“
No
,” Mary Ann whispered. “No.”

“Third,” the judge concluded, “that Martin and Margaret Tierney personify the wisdom of Congress in mandating parental involvement …”

“Shit,” Kit murmured.

Among the four of them, Clayton realized, it was the first expression of partisanship. Staring at the television, Kerry said nothing.

“It would be the height of arrogance,” Leary proclaimed from the screen, “to substitute our judgment for theirs …”

“Boilerplate,” Adam Shaw remarked. “Mom, Dad, and apple pie.”

“Maybe,” Clayton answered. “But they’ll question Caroline about every line, as if it were chiseled in marble.” Turning to Kit, he added, “We’ll need some boilerplate of our own.”

“The ‘rule of law’?” she answered sardonically. “Or does the President, like all good presidents, believe in ‘letting the judicial process take its course’?”

“Both,” Clayton rejoined. And then he noticed that Kerry, still silent, had not taken his eyes off the screen.

L
OST IN MEMORY
, Judge Caroline Masters gazed unseeing at the briefing book in front of her.

Chad Palmer had kept his word: in three days, her confirmation hearings would begin, and there was still much preparation to complete. But her sister’s call had taken her back to the moment, twenty-seven years before, when she had placed her infant daughter in the arms of Betty’s husband …

“They’ve been here,” Betty had reported that morning. “The FBI.”