Accidental Life

by Pamela Binnings Ewen

  The courtroom was silent. Seconds passed before he continued.

  “Roe v. Wade may have asserted the woman’s control over a fetus within her body, with some exceptions at the point of viability. But after birth?” He raised his fist, and his voice. “At birth, the line is clearly drawn.” He heard murmurs in the gallery behind him and paused, gathering his thoughts.

  “After birth the child is no longer a part of the woman’s body; no longer a charge on her reproductive system. We are asking this court to recognize that—accidental or not, unwanted or not—the birth of Baby Chasson brought with it ‘personhood.’ From that point on every decision made with regard to that infant should have been made in the best interests of that child—a full medical assessment should have been performed. And the State has shown that there was plenty of time for that.”

  He turned, looking at the defendant now. Peter’s hands curled into a fist. Charles Vicari met his look with sheer disdain.

  “The evidence shows beyond reasonable doubt that this Defendant’s actions caused the death of Infant Chasson. The Defendant not only refused to provide medical assistance to the infant, but he refused to allow anyone else to do so either. And then he went further. He deliberately, knowingly wrapped the towel around the infant’s head while, according to Nurse Sonsten, Infant Chasson still struggled to breathe, and then he ordered his nurse to take Infant Chasson to the clinic’s utility room, knowing that alone and uncared for, there he would die.”

  “He intended to kill that baby.”

  Peter turned back to Calvin Morrow. “Second Degree Murder in this state requires as one element of proof evidence of an intent to kill. The defense will argue that Dr. Vicari was surprised by the live birth of Baby Chasson. The defense will argue that Dr. Vicari’s failure to anticipate such an event, his so-called surprise, destroys any idea that he might have harbored ahead of time an intention to let the infant die. Mr. McConnell will say that Dr. Vicari was convinced that any twenty-three-week fetus—as he believed—could never survive an induced labor abortion.

  “But what Mr. McConnell has not told the court is this.” Peter leaned forward, bracing his arms on the lectern holding Morrow’s eyes. “The defense has not told this court that Charles Vicari has done this before. He was well aware of the risk of live birth during abortion. The State has presented evidence in this case that the Defendant refused to provide medical assistance to a live-born infant before, three years ago in New Hope Hospital in Chicago, Illinois. That infant was Abigail Gordy.”

  In the silence of the courtroom, Peter turned, looking at Alice Hamilton. The nurse had shown great courage, then—three years ago—and now.

  “Through the testimony of Nurse Alice Hamilton, and Abby’s father, Kenneth Gordy, the State has established that this is not the first time that the Defendant has faced this situation. Therefore, he could not have been surprised. By any standard, the Defendant was aware of the risk. He cannot now claim surprise and confusion as a defense—”

  “Objection!” Vince’s voice rang out.

  “—because Abigail Gordy’s very existence condemns him.”

  “Your Honor,” McConnell shouted, standing beside Vicari. “Counsel is doubling down! Now he’s using the Gordy child as evidence?”

  Judge Morrow turned red as he leaned forward over the desk with a hawk-like glare, his voice a staccato beat: “I remind you, Mr. McConnell, that this is a closing argument during which objections are strongly discouraged.”

  Vince stared. Seconds passed, and slowly the judge turned his eyes on Peter. “Mr. Jacobs, what have you to say?”

  “I’m referring only to Kenneth Gordy’s and Alice Hamilton’s testimony on record, Your Honor. Not the presence of the child in the courtroom.”

  “See you keep it that way.” Morrow turned toward Vince McConnell. “Objection overruled. Defense counsel will take a seat. You’ll have your turn soon, but until then I expect you to extend to the State the same courtesy you’d expect for yourself.”

  “Yes, Judge.” Vince sat.

  Peter was finished, but he decided to push it one step further. “Your Honor, the State hopes that when the court takes this case under consideration, that you will consider the case of Abby Gordy as a living example of what I believe the Defense might agree is a meaningful life.”

  He paused to let those words sink in, seeing Abby in her mother’s arms in the courtroom yesterday, the child’s face shining as she reached for her father. That memory wouldn’t be erased from the judge’s mind anytime soon, he knew, and that memory struck something inside, a feeling that was somehow connected to his love for his own child yet to be born.

  Lifting his head he held Judge Morrow’s eyes. “The evidence in this case proves beyond a reasonable doubt that the Defendant, Charles Vicari, is directly responsible for the death of the infant born of Glory Lynn Chasson on May 13, as charged.”

  56

  Vince stood and walked to the lectern, hands clasped behind his back, head down. He brought with him no notes. When Vince reached the lectern, he sidestepped it, dropped his arms to his sides and looked up.

  “Imagine yourself in the Defendant’s shoes in this case. A young woman comes into the clinic looking for help. She’s distraught, alone . . . fragile. She has come to you because she’s chosen to terminate a pregnancy that is, uninvited, unwanted, day by day stealing her dreams—her entire future.”

  He held out his hands in supplication. “And so she has come to you because the law of the land says that she doesn’t have to go through that nightmare, she has a choice. And you agree to help her. But she’s confused about her date of conception. Having fought the reality of her situation from the beginning, she can’t remember now, she can only guess.”

  “First, you do everything in your power to determine the gestational age of the fetus. “Next, you must determine whether you believe the fetus is yet viable, and given the information you’ve put together, you conclude in good faith and using your best medical judgment, that the fetus is twenty-three weeks and not yet viable. You recall that Roe v. Wade placed likely viability at twenty-eight weeks, with some possibility of moving down to the last and most remote risk at twenty-four weeks.”

  Vince halted for an instant, turned to the judge, and shrugged. “As the autopsy later confirmed, the calculation of gestational age wasn’t far off. But, of course, that information was developed after.” He shook his head, sadly. “Hindsight makes it all look so easy.”

  “As we’ve learned from testimony in this courtroom,” he said, “and as you will discover if you’re of a mind to read papers published by physicians and academics in the field of obstetrics and pediatrics, there is no medical consensus as to the point at which viability occurs. It is a moving concept determined partly by medical advances, and partly by each individual woman’s body and health, and the accuracy of the woman’s own memory. No physician could have done better than the Defendant in determining the gestational age with the information that he had.

  “So, putting yourself in the Defendant’s shoes, your next challenge is to determine the safest method to use with your patient, Miss Chasson. Here courts have held that the physician’s best medical judgment will prevail. You choose the most conservative method available, induced labor abortion. It is the safest method to use because the fetus is expelled intact. For the most part, instruments aren’t necessary.

  “However, as the State has pointed out, with induction the fetus arrives intact, and on a rare—rare—occasion a fetus may survive for a minute or two with the heart still beating, breathing, still always . . .” He stopped, spun toward the gallery, raised one finger, and shook it. “Always, it expires within minutes.”

  He paused and spread his hands. “But a few minutes does not equal viability. The defense has placed into evidence testimony that the Supreme Court in Roe v. Wade recognized this when the Court added the condition th
at such a life must also have a certain quality, a certain level of meaning and awareness.

  “The circumstances of Abigail Gordy are unique, Your Honor.”

  Vince turned back to the judge, and began pacing again. “It is against this background that the Defendant handed what he believed was fetal tissue to Nurse Sonsten that night. There was confusion in the room; his patient was hysterical, he was concerned about her health, and he was unaware of the live birth. The State has presented witnesses who claim that the fetus, the infant, was born alive, that they saw it breathing, moving, and heard it cry. The Defendant denies that he was aware of this at the time not only because of the confusion around him, because also his examination of the patient had convinced him that the fetus could not yet be viable. That was his mindset when he wrapped the blanket fully around the fetus and handed it back to the nurse.”

  “And let’s make this clear.” He stopped in the middle of the triangle, turned and pointed at his client. “The infant’s death was inevitable. And in those moments, Dr. Charles Vicari’s first and only duty was to his patient, Glory Lynn Chasson.

  Dropping his hand, slowly McConnell walked back to the lectern. “We are asking this court to consider that when the fetus arrived, the Defendant was fully engaged and distracted by his primary concern, the health and safety of his patient who required immediate medical attention. Imagine the irony, Your Honor, that the State, with blindingly myopic hindsight, would come along to second-guess the Defendant’s judgment. It is ironic that had the fetus expired one second earlier and one inch further back within the birth canal, we would not be here today.”

  There was a gasp in the courtroom.

  “We ask the court to consider this. Courts have consistently protected a physician acting in accordance with his best medical judgment in an operating room. In the operating room, the physician is the captain of his ship. A verdict against the Defendant in this case would be unprecedented; it would cast shadows over every physician and abortion provider in this country whose judgment tells him or her that induced labor is the safest method of abortion for his patient. Such a verdict would shift the slight risk of a live birth to the patient rather than the physician.

  “And it would cast an undue burden on every woman in this country exercising her constitutional right to have a late-term abortion.”

  “The defense now asks this court to find the Defendant in this case, Charles Vicari, innocent of the charge of murder in the second degree, and of all lesser included charges. That is the only way to protect the constitutional rights of women and physicians in this country.”

  He dipped his head and sat down, looking drained. “Thank you, Your Honor.”

  As Vince sat down and Vicari leaned toward him, whispering, Peter turned, seeking Rebecca’s face and smiled at her.

  Judge Morrow cleared his throat. Peter looked up and the Judge said, “Any rebuttal, Counsel?”

  Slowly Peter rose. “Since this is a bench trial, your Honor, the State merely asks the court to remember this in consideration: Testimony in this case established that it would have taken an ambulance only twenty minutes to reach a hospital from the clinic.” Seconds passed.

  Morrow looked up. “Legal briefs by noon tomorrow,” he said as he stood.

  Part Three

  The Verdict

  57

  Before everyone left the courthouse, Peter made certain that Morrow’s clerk had his office and home phone numbers and his secretary, Molly’s, phone number. If Rebecca went into labor before the verdict was handed down, he’d let Molly know his whereabouts so she could contact him.

  Dooney and the Gordys left to pick up Abby before heading off to the airport. Alice made them promise to keep in touch and let her know how Abby was doing. After they saw Dooney’s group off, Mac and Peter went up to their offices. Mac was working another case. Peter had another hearing scheduled for the following morning in an upcoming trial.

  So, Alice and Rebecca, left to themselves, strolled two blocks down from the courthouse to Common Grounds café for lunch. They passed city hall with Christmas lights strung over the doors and around the windows and roof. A cold damp wind blew from the river and they both buttoned their coats.

  Rebecca, feeling heavy and out of breath, rested her hand on Daisy and walked along so slowly that Alice had to slow her step.

  They halted inside the door of the café and looked around. The place was warm enough that fans swirled overhead, even on this chilly December day. They stopped before a blackboard near the door, looking at the day’s specials: shrimp-stuffed eggplant, po-boys, spaghetti and meatballs—heavy food. Rebecca wanted something light.

  “It’s certainly busy in here,” Alice said.

  Rebecca glanced around. Even the tables in the large back room were full. Two waitresses glided between tables, carrying plates high above their shoulders as they skinnied from side to side avoiding collisions. Rebecca recognized a few people from the courthouse, lawyers in suits; some from the DA’s office.

  One of the waitresses appeared at their sides. “We’ve got an open table in the corner,” she said, moving fast. Rebecca and Alice followed.

  Rebecca thanked the waitress, who flew on by, and she pulled out a chair for Alice, then another one for her. “How long do you think it will take?” Alice asked as she sat down.

  “The verdict?”

  Alice nodded.

  Rebecca placed the napkin in her lap. “You never know. Even with a jury it can take days. Sometimes longer. But with a trial to the bench—one man with all that on his shoulders?” Rebecca shrugged.

  “I’d have liked to have been on that jury,” Alice said.

  Rebecca looked at her and smiled. “I was picked for one once. You wouldn’t think they’d want a lawyer, so I arrived with my summons, just certain I’d be home in a couple hours.” She snorted. “Boy, was I surprised. But something about being in that jury box brings out the best in most people, I think. Everyone took the job very seriously. There were long arguments, a lot of passion.”

  “I imagine a case like this one would be traumatic for most people.” Alice eyed Rebecca as she picked up a menu. Her voice broke, and Rebecca turned to see a tear slowly sliding down the older woman’s cheek.

  Rebecca rose, gave her a quick hug, and returned to her place. “It must have been difficult for you in Chicago, knowing what Vicari was doing and sticking it out. But, Alice . . .” She bent her head toward Alice and lowered her voice. “Look what you’ve done. You saved Abby Gordy’s life. You’ve given Kenneth and Suzanne a child.”

  Alice swallowed, nodding. “I know. It’s just, remembering all the others . . .”

  “Yes.” Rebecca rested her arms on the table. “But because of your courage, coming to see me, if Peter gets his verdict, it’ll be because of you.”

  Alice managed a slight smile. When the waitress arrived at their table, she ordered a ham sandwich on regular bread, she said, not French bread. Rebecca ordered a tomato stuffed with tuna salad.

  The waitress brought a glass of iced tea with lemon for Rebecca, and water and a cup of hot tea for Alice. Then they settled back.

  At the next table Rebecca noticed two young women, animated, talking with excited gestures. Both wore skirted suits that told Rebecca they were probably lawyers taking a break from the courthouse melee. They reminded her of herself and Amalise a few years ago, when they were getting started. Despite the long hours, the deadlines and demands and challenges, she’d been so happy with her life.

  And now?

  She’d thought partnership at Mangen & Morris was what she’d always wanted. She had worked so hard to get to that point. Thinking back to the day of that phone call inviting her to join the firm, it all seemed so long ago. So far away. She smiled to herself; she’d thought that becoming partner was the meaning and purpose of her life.

  A wave of contentment ra
n through her at the thought of the surprising new direction her life seemed to be taking, and she thought of Daisy and Peter and the years they’d have ahead of them. The baby was going to change everything in her life, she knew. The decision had been forming slowly over the last few months. Suddenly, it had crystalized.

  Everything was going to change.

  And it was going to be okay.

  “Your happiness is contagious,” Alice said.

  She leaned toward Alice and said, “Why don’t you take some time off before you go back to work? Let all of this go.” She waved her arm to encompass not only the room, but the courthouse and Charles Vicari. “Go somewhere. Have an adventure.”

  “I had actually been thinking about your trip with Peter to Italy. To Positano.” Alice laughed. “Maybe I will go.”

  58

  That evening Rebecca sat working on the State’s brief for Judge Calvin Morrow. Soothing piano music came from the stereo, Chopin’s Nocturnes. Peter had lit the fire for her and the only light on in the study was the one on the desk that lit the page of the brief she’d drafted for Peter. Not good for her eyes she knew; but best for her soul.

  Peter was upstairs in their bedroom, already asleep. He was exhausted. While the judge was considering his verdict, Peter had gone back to his routine of hearings and depositions. She shook her head thinking of the hundreds of cases on his calendar in any year.