Protect and Defend (54 page)

“
We start by affirming
,” she continued, “
two core principles:

“
First, absent concerns for a mother’s life or health, Congress has the power to ban all postviability abortions, whether for minors or adults
.

“
Second, under existing Supreme Court precedents, in most circumstances Congress can require the consent of one parent before a minor child obtains an abortion, if the law provides the minor with a safe and accessible judicial alternative …
”

It might take a little work, Caroline thought dryly, but at least it
sounded
like a judge. The hard part lay ahead.

Thirty-two hours later, Judge Lane Steele’s voice echoed with genuine indignation through Macdonald Gage’s squawk box. Listening, Gage sipped coffee, glancing at Mace Taylor. “She starts,” Steele reported, “with whether the ‘substantial risk to physical health’ requirement violates
Roe v. Wade
. Listen to this:

“
‘Generally, judges should defer to Congress; certainly they should refrain from imposing their own beliefs. In turn, Congress must not curtail certain fundamental rights unless it has an especially compelling reason to do so
.

“
‘These rights include not only those expressly enumerated in the Bill of Rights, but other rights fundamental to their exercise. One such right is privacy. And nowhere is the right to privacy more important than in the area of procreation …’
”

“It’s the same old song,” Gage interjected caustically. “Infanticide is the woman’s business, not ours.”

“Precisely,” Steele agreed. “But she’s been very clever about turning that around. For example:

“
‘Privacy means more than the right to contraception— the right of a woman to decide when to have a child, or not to have children at all. It must also mean the right to protect her ability to have children if she chooses
.

“
‘No humane definition of physical health can exclude procreative health. And when a woman’s doctor determines that she faces a measurable risk of infertility, it is for a woman and her doctor—not the Congress—to determine whether this risk is acceptable to
her …’”

“I guess any old risk will do,” Gage observed. Sitting next to him, Taylor—whom Steele did not know was there— nodded with a tight smile.

“She throws us a bone here and there,” Steele replied. “Let me read a little more:

“
‘Abortion on demand of a viable fetus is not protected by
Roe
—nor, given our societal interest in preserving life, should it be. But Congress should not be empowered to force Mary Ann Tierney—or any minor child—to run
this
risk. Or, for that matter, the other risks inherent in a cesarean section
.

“
‘That Congress has done so here is in little doubt. According to the legislative history, “substantial medical risk” limits abortions to those “necessary to prevent the death of the pregnant minor, or the likelihood of a grave and irreversible impairment of physical health.” This “more likely than not” standard would seem to preclude an abortion for Mary Ann Tierney, and for any other minor child for whom the risk of infertility exists but is not, it is clear, “likely“—’

Abruptly, Steele interrupted himself. “Without legal standards,” he complained, “or judicial supervision, a minor can always find
some
doctor to gin up
some
level of risk to health. It’s not much better than aborting eight-month fetuses to protect her psyche.”

It occurred to Gage that, if it was seven o’clock in Washington, it must be 4:00 a.m. in California. He imagined Steele in his pajamas, looking like a disgruntled grandfather forced to read a particularly banal bedtime story. Gage, too, viewed the opinion with deep aversion. But it also held the key to his consuming ambition: to defeat Caroline Masters, thereby tarnishing Kerry Kilcannon and moving one step closer to the presidency.

“How,” Gage inquired, “does she get around to throwing this law out for every girl who gets herself pregnant?”

“By trusting to her powers of invention.
This
should give you a flavor:

“
‘Admittedly, this is a difficult case. But it also exemplifies how hard it is to draw bright-line rules in areas of complex medical and personal judgment. For it is not hard to envision other cases which, if anything, would be far more complicated and agonizing
.

“
‘In this case, the prognosis for the fetus is dismal, but not hopeless; infertility unlikely, but possible. One can conceive of an even more painful case, where the fetus appears normal; or a distasteful one, where the mother uses a relatively remote risk of infertility as an excuse to cover her dislike for the gender of the fetus
.

“
‘Yet we can also imagine a case where the fetus is without hope, and the prospect of infertility not one to five percent, but twenty. And the progress of medical science will inevitably bring us to this: a pregnant minor at risk for infertility, but hopeful that the anomalies of her fetus can be cured by fetal surgery, will be forced by this law to abort
prior
to viability. Why? Because once viability occurs she cannot act in her own protection—even if it becomes clear that her fetus will die at birth, and that the chances of infertility are greater than they first appeared
.

“
‘A statute which impels such trade-offs—between preserving fetal life, however challenged, and a minor’s health— cannot stand.’

Halting, Steele said in an acrid tone, “She has a wonderful literary imagination. But that’s not law.”

“It’s emotive crap,” Gage shot back. “
That’s
what it is. Why not nominate Oprah Winfrey.” Pausing, he glanced at Taylor, then asked, “Can you fax that to me, Lane?”

From California, there was silence. “This isn’t public yet,” Steele replied at length. “It won’t be until nine this morning.”

“And I surely respect that,” Gage assured him. “This is for my internal use only. I just need to think through our strategy before the phone starts ringing.”

There was a last hesitance—like the feigned virtue of the piano player in the whorehouse, Gage thought sourly. “Very well,” said Steele. “I can fax from here at home.”

Turning, Gage gave Taylor a grim smile. “You’re a true patriot,” he told Steele. “I won’t forget this.”

“You needn’t thank me, Senator. It’s a matter of conscience.”

Quickly, Gage ended the conversation.

“Palmer,” Taylor said at once.

“Yeah.” Gage put down his coffee. “We better get to him before the press does.”

In the Oval Office, Kerry and Clayton bent over Kerry’s desk, scanning the faxed copy Caroline had sent. “The least she could do,” Clayton murmured. “This is a fucking nightmare.”

Kerry shrugged: that much went without saying. “What does she say about the parents?” he asked.

Clayton flipped some pages, then stopped. Kerry began reading:

“
We start by noting that the Protection of Life Act creates two classes of minors: those whose parent consents to an abortion, and those whose parent refuses. The former are entrusted to a doctor’s care; the latter are directed to federal court
.

“
Demonstrably, those consigned to court face obstacles which put them at greater risk. Refused consent, a child must—in defiance of her parent—retain a lawyer and proceed to court, often situated far from her home. It is likely that many girls will risk their health, or even life, because this requirement seems too daunting
.

“
For some, it will seem impossible. And these burdens will
fall disproportionately on the poorest, the least educated, the most geographically distant …
”

“True,” Kerry said. “All of it.”

Clayton grunted. “Maybe so. But she’s already admitted that the Supreme Court has upheld parental consent laws.”

Kerry scanned the opinion, then placed his finger on a passage, raising his eyebrows at Clayton:

“
While some of these drawbacks also pertain to state parental consent laws upheld by the Supreme Court, there is a fundamental difference. Those laws apply to previability abortions, and require merely that a minor show that she is sufficiently mature to make the decision to abort, or that abortion is otherwise in her best interests
.

“
This statute governs a medical emergency, where the minor’s health is at issue. Given that distinction, the justification for a consent requirement—which effectively denies some girls an equal opportunity to act in their own protection— must be exceedingly persuasive
.

“
One rationale offered is that the law promotes familial closeness. But as a practical matter, if a trusting and supportive relationship between a parent and child has not already been established, it is unlikely that Congress can create in a moment of crisis what the family could not develop over the course of the child’s life. Certainly, the Tierneys offer no persuasive evidence to the contrary
.

“
Indeed, their painful and public rupture with Mary Ann suggests the opposite—by pitting parent against child, this law has driven a wedge between them which may never be repaired …
”

Pausing, Kerry wondered where the judge was molded by the woman: Caroline’s breach with her father had never healed, with terrible consequences for all concerned. But this was what he had asked for—a judge whose view of the law was informed by her compassion, and her life.

He began reading again.

“
Another supposed justification
,” his nominee had written, “
is that the statute protects minors. According to the experts who testified on behalf of Mary Ann Tierney, the opposite is true. The consent required falls hardest on those girls who are the victims of incest, abuse, and other familial dysfunction. As for those girls whose families function well, most will
not require an act of Congress to seek the counsel of a parent …
”

At this, Kerry recalled the misery of his own childhood, and then his first domestic violence case, culminating in a murder of the mother by the father, witnessed by the child. Again his finger jabbed the passage. “She’s nailed it.” The President’s tone was soft now. “And you know how well I know that.”

Clayton turned to him. “That’s fine,” he said coolly. “She’s an admirable woman, and she’s got a job in San Francisco for life. But ‘right’ and ‘admirable’ don’t translate to confirmable.

“In less than four hours, Kerry, this town will be a war zone. Caroline Masters has to go.”

Gage threw the pages on Palmer’s desk. “Your friend Caroline Masters,” he said brusquely, “has punched you in the shorts.”

Behind the mask of outrage, Chad observed, Mac Gage considered him shrewdly, no doubt wondering if Kilcannon had warned him. But Gage did not ask, which was just as well—the President had called Chad as soon as he knew.

“That’s why I wear a protector,” Chad answered. “What’s in here?”

“Liberal garbage.” Though Gage’s tone was peremptory, his veiled appraisal continued. “I thought you’d be particularly interested in her take on parental consent.”

With a cool deliberation which belied his pose of anger, Gage began turning pages. “Here, I underlined some passages for you.”

And in red, Chad thought, in case their significance eluded him. He began reading:

“
The dissent asserts that the Tierneys are concerned and loving parents. No doubt they are. But Judge Steele’s argument proves too much: if a statute unduly burdens the rights of a minor whose parents are well-intentioned, it inevitably will foster tragedies where the family is a seedbed of pathology. The horror of forcing a minor to ask her father for permission to abort the product of his own act of incest—a common cause of fetal anomalies—cannot be justified in the name of Martin Tierney …
”

“She’s got it backward,” Gage said flatly. “Because
other
parents may be bad, good parents have no rights. There’s going to be a tidal wave, I can promise you.”

It was true, Chad thought with apprehension. His best hope was to avoid the undertow.

Quiet, he continued reading.

“
The Tierneys, were they so inclined, could not legally force their daughter to abort this child. Can they then compel her to give birth because they think this best for her? Mary Ann’s testimony provides ample evidence that she understands the dilemma she is faced with, both medical and moral, and is capable of resolving it
.

“
A central paradox of this case is that Mary Ann Tierney is entitled, without a parent’s consent, to protect her own health in almost every other way. She could, on her own, secure treatment for drug and alcohol abuse, rape and sexual assault, sexually transmitted diseases, mental and emotional difficulties, and all manner of medical assistance related to her pregnancy—including, ironically, a cesarean section. Her parents’ antipathy to abortion should not preclude her from making this more difficult, but medically warranted, choice
.”

Softly, Gage said, “You’ve been as big an advocate for parental consent as anyone, Chad. You know why this can’t stand.”

Chad picked up the opinion, flipping to its conclusion. But he no longer truly read; instead he thought of the thing he could never tell Macdonald Gage, and could only pray that Gage would never know. Chad’s short-lived pleasure in the chairmanship, his calculated alliance with Kerry Kilcannon, had turned to dust.

“There’s no choice now,” Gage told him. “Kilcannon either dumps her, or we’ll have to take her down.”

Scanning the opinion with shock and elation, Sarah stopped briefly at the footnote headed “Mental Health”:

“
Because we declare the statute unconstitutional on other grounds, we need not resolve the vexing question of whether concerns for emotional health can ever justify a postviability abortion. We share the apprehension that this could lead to abortion on demand: any such abortions, if allowed, should
contemplate emotional damage which is demonstrable and severe
.

“
We note, however, that courts routinely assess mental condition in other contexts, such as criminal culpability. And no precedent exists which would foreclose the authors of future legislation from a careful consideration of this issue. See
Doe v. Bolton,
510 U.S. 179 (1973) at 191–92
.”