Protect and Defend

by Richard North Patterson

  “I’ve read Ms. Dash’s papers,” the judge said. “Before we go any further, I’d like to know who everyone is, and what their interest is in these proceedings.”

  “I’m Craig Thomas,” the young lawyer answered, “representing the defendant, Attorney General Barton Cutler, for the purposes of this proceeding only. At any future hearing the Attorney General will be represented by the department in Washington.”

  Leary waved a freckled hand, as though to say he expected this. A pale man with graying red hair and a perfunctory manner, the judge was noted for his conceit that there was no problem so complex that he could not grasp it in five minutes— the approximate time, Caroline had once confided to Sarah, that it had taken her to grasp how dangerous this made him. “And you, Efrem,” Leary said to the media lawyer, “to what do we owe the pleasure?”

  Efrem Rabinsky smiled with the self-satisfied air of an established courtroom personage. “I represent the Allied Media. Our interest is assuring the broadest dissemination of what promises to be a case of major constitutional importance.”

  “And I object,” Sarah said promptly, “to Mr. Rabinsky being here at all.” Tension made her voice higher, her words more rapid. “A fifteen-year-old girl faces a tragic dilemma. She’s pregnant with a defective fetus, she wants an abortion, and her parents oppose her. We filed this case as Doe v. Cutler to protect her privacy …”

  Leary raised a hand. “We’ll resolve all that later, Ms. Dash. I’m just taking attendance.” Turning to the Tierneys, he said with compassion, “And you, Martin? What role are you seeking?”

  Tierney clasped his hands in seeming anguish. “I’m here as a lawyer, as well as a father. Margaret and I are requesting leave to intervene in these proceedings.”

  Alarmed, Sarah turned to the judge. “I sympathize with your concerns,” Leary told Martin Tierney. “But according to your daughter’s declaration, Ms. Dash speaks for her.”

  “But who speaks for our grandchild?” Tierney asked. “No one.”

  “That’s not true,” Sarah said. “The United States Department of Justice represents your point of view.”

  Tierney fixed her with his translucent gaze. “Our grandson is not a ‘point of view.’ If he were delivered right now, he could live outside the womb.” Turning to Leary, he said, “Ms. Dash is asking the court to take an innocent life. We’re asking to be appointed guardians ad litem to the unborn child, with the right to act in his defense: to call witnesses, to make argument, and otherwise do everything in our power to save him.”

  This was Sarah’s worst fear—a hearing in which her opponent was not the Justice Department, but two people speaking with the authority of parents and the zeal of true believers. “With all respect,” she said to Leary, “a baby with these defects is unlikely to live at all—now or later. The Tierneys can fully express their concerns as witnesses. But as parties, they’re not only unnecessary but—despite their best intentions—will inevitably inflame these proceedings and deepen their own daughter’s trauma. Can you imagine a father cross-examining his child?”

  “Who better?” Tierney asked quietly. “By what authority do you speak for, and to, our daughter—to the exclusion of the two people who have loved her since before she was born, and will continue to love her when you’ve vanished from her life? Having pursued the ‘best interests’ of a girl you’ve known for two weeks.

  “I’m sure you mean well, Ms. Dash. But the arrogance of those who believe as you do never fails to impress me. And never more than now, when you sit across the table from two parents, and tell them that, in the name of their daughter, you mean to bar them from a proceeding you’ve initiated to secure the death of their grandchild.”

  Sarah turned to Leary in protest. “Your Honor …”

  Leary held up his hand. “I’ve heard enough, Ms. Dash. This is not a visitation case, and Mary Ann Tierney is, herself, still a child under the law. I’m granting the Tierneys leave to intervene on behalf of the unborn child.”

  The swiftness of events jarred Sarah further. “May I ask one thing, Your Honor? I’d like to know from Mr. Tierney and Mr. Rabinsky how they came to be here an hour after I gave notice to the Justice Department. Specifically, who informed them of the case?”

  “Does it matter?” Leary asked.

  “Yes. It suggests that someone is trying to make this case as traumatic for my client as they possibly can. I can only hope it’s not the Justice Department.”

  The young lawyer looked affronted. “You were asking for a TRO this afternoon. I contacted the Tierneys to testify, if necessary.”

  “And whom did you contact?” Sarah asked Tierney.

  He shook his head. “This is difficult enough, Ms. Dash. Don’t ask me to confide in you who I might have called to help me in what, until your lawsuit, was a private matter within our family.”

  Once more, Sarah felt defensive. “I’m wondering how Mr. Rabinsky got here.”

  “That’s a confidential matter,” Rabinsky answered with his usual assurance. “And it’s completely irrelevant to the media’s right to report on these proceedings.”

  Tierney had called a pro-life group, she thought, and they had resolved to escalate the pressure on Mary Ann by bringing in the media. Facing Tierney, she asked, “Do you want Mr. Rabinsky here? Is that what’s best for Mary Ann?”

  Gazing down at the table, Margaret Tierney shook her head. Glancing at his wife, Tierney said, “No. We’d like these proceedings to be as confidential as possible. For our family’s sake.”

  Turning to Judge Leary, she said, “That much we agree on. I’d like strict guidelines for the media—no access to our papers, and testimony from Mary Ann given in chambers rather than open court. And any media who report her name or background should be barred from the courtroom. The same protections we accord a juvenile in any proceeding.”

  Rabinsky pursed his lips. “This isn’t a case of shoplifting. Of course we agree not to publicize Ms. Tierney’s name. But we want full access to all proceedings, including television …”

  “Television?” Sarah said in anger and surprise. “That’s ridiculous.”

  “Last month,” he answered smoothly, “the National Judicial Council lifted its ban on television in federal courts. And it’s routinely allowed in major criminal cases.

  “This is an issue of far more importance, involving a parent’s right to direct their minor daughter’s reproductive decisions, and the limits, if any, on the right to an abortion established in Roe v. Wade.” Turning to Leary, he lowered his voice. “If I may say so, Your Honor, your ruling in this case may well be the most important by a federal district judge in the last ten years. It’s vital that the public fully understand the basis for your ruling. Admitting cameras is now within your discretion.”

  Rabinsky was shrewd, Sarah thought. He had appealed to two of Leary’s most salient qualities—his self-image as an incisive judge who ran a model courtroom, and his penchant for excessive courtroom preening.

  “I’ll save that for last,” Leary said. “First, I’d like to know what kind of beast we’ve got here.” Spinning on Sarah, he said, “Let me tell you right now, Ms. Dash, I’m not granting you a restraining order today—or at all. You’re asking that I declare this statute unconstitutional on the spot, which amounts to aborting this baby over the counter. No way am I going to do that.”

  This much was no surprise. “I understand, Your Honor. But unless we expedite these proceedings, Mary Ann will suffer irreparable harm: emotional trauma, an increased rate of medical complications the longer her pregnancy goes on, and—if we delay too long—a process of hearings and appeals which will force her to have the child regardless of how you rule.”

  Martin Tierney seemed to awaken from some depth of sorrow; he seemed shocked at what was happening, and at the wrenching ordeal proposed by Efrem Rabinsky. “There’s a balance,” he said. “I worry for my daughter. But this also involves my grandson. The case against his murder must be allowed in full, wha
tever time it takes.”

  “For the record,” Sarah shot back, “your so-called murder is to protect your daughter’s physical and emotional health, including the right to bear further children who actually have a cerebral cortex. I refuse to go through the proceeding talking about murder, or treating a girl you claim to love as if she’s a human respirator.”

  To her surprise, Martin Tierney winced. Next to him, Margaret Tierney closed her eyes; gently, Tierney rested his fingers, long and delicate, on her wrist. “To us,” he answered, “Mary Ann is hardly a human respirator. Believing strongly that something is right doesn’t lessen its pain. What’s happened has been agony for us, and now it’s come to this.

  “I think what you’re proposing is judicial murder, even more immoral than the death penalty. But that’s different from believing you a murderer, or callous, or careless. If I’ve suggested otherwise, I apologize.”

  This note of grace surprised her. “So do I,” she said. “I hope we can find a way to keep this civil—and no longer than it need be.”

  “Part of that depends on you,” Leary interjected. “You’ve asked for a hearing in ten days on a preliminary and permanent injunction. You’ve got it—the case won’t wait. So who are your witnesses?”

  “The co-plaintiff,” Sarah answered promptly. “Dr. Flom. Then a psychologist. At least one woman who had a late-term abortion in similar circumstances …”

  “Why?”

  “To show that the statute would preclude a significant number of minors from having emergency surgery to preserve their health.” Sarah’s voice was emphatic. “I’d also call the mother of a girl who died from an illegal abortion because she was afraid to ask her parents’ consent to a legal one.”

  “That’s not the case here,” Leary said testily.

  “But it will be for someone, and soon. We’re asking that you find the statute invalid as to Mary Ann Tierney or, in the alternative, as to any teenage girl it could affect.” Sarah paused. “Finally, I hope not to call Mary Ann. But I may not have a choice.”

  “What about you?” Leary said to the government lawyer. “Witnesses?”

  “I don’t know yet. That’s up to Washington.”

  “Well tell them to figure it out within ten days—they’re the world’s biggest law firm, after all.” Facing Tierney, Leary said, “Maybe you can help the government here.”

  Tierney’s brow furrowed. “There are many considerations, Your Honor—including the painful decision as to whether we must ask Mary Ann to testify. And I’d like to associate the Christian Commitment: their legal staff has been active in defending the unborn, and has ready access to pertinent witnesses, both expert and lay. According to her papers, Ms. Dash has pro-choice groups helping, after all. Even if they won’t appear with her in court.”

  Sarah could only listen. “Certainly,” Tierney continued, “we’d like medical testimony regarding both Mary Ann and our grandson, as well as the testimony of a psychologist regarding the trauma of aborting a viable baby. Perhaps—in contrast to Ms. Dash—testimony from mothers who have taken similar pregnancies to term.” He drew a breath. “The implications of Ms. Dash’s request are more profound than I think she knows. I expect that members of the disability community should also be heard.”

  It was just as Caroline had admonished her. “On what ground?” Sarah asked.

  “You’re proposing selective abortion of fetuses because, in the opinion of a mother, they have traits which are less ‘desirable’ than other children.” Pausing, Tierney shook his head in wonderment. “Where would you draw the line, Ms. Dash? Aborting babies because they’re female, and a parent—or the state—wants a male?”

  Sarah faced Leary. “Your Honor,” she urged, “this is about a teenage girl with a hydrocephalic child. Not eugenics.”

  Leary scowled. “You’re asking me to consider throwing the whole statute out—for everyone. And one of your grounds is disability, at least as I read your papers. If someone wants to speak for the disabled, I’ll hear them.”

  “Thank you.” Tierney’s voice conveyed both gratitude and sorrow. “Also, Margaret and I may well wish to testify—both as Mary Ann’s parents and as those who, up to now, have been responsible for her moral instruction. We’re afraid of the long-term psychological damage if she contravenes her own beliefs by having an abortion.”

  Sarah began to absorb the shape of what would come: litigating with Martin Tierney over the best interests of his own daughter, perhaps on television; arguing whether a law which would force a traumatic childbirth on a teenage girl was, instead, a bulwark against the rebirth of Nazi science; clashing with the Christian Commitment, whose tactics—in and out of court—might be far more harsh and devious than Martin Tierney knew; suffering the peremptory and erratic rulings of Patrick Leary—who, Sarah suspected, was more sympathetic to the Tierneys than to their daughter.

  “Your Honor,” she said, “may I return to the question of the media—and television? If Mary Ann Tierney were a shoplifter, her privacy would be protected. Because she’s innocent of any crime, Mr. Rabinsky feels entitled to put her on CNN …”

  “We can run a three-second delay,” Rabinsky retorted. “Beeping out her name, and blocking out her face and that of the Tierneys. It’s their circumstances, not their specific identity, which is of the greatest public interest. Not only is this a case of unique importance, but the fact that Ms. Tierney is the daughter of pro-life activists exposes the complex nature of the issue.”

  “Which is just another way,” Sarah rejoined, “of punishing Mary Ann for her parents’ decisions. But in this case the Tierneys agree with me. That should be dispositive. Why strip this girl of her privacy for invoking the right to privacy?”

  “It’s certainly entitled to great weight,” Leary answered. “But opening the courtroom not only honors the First Amendment, it demystifies the legal process—especially as to something as controversial as this. Besides, that’s a hearing for injunctive relief, heard by the court itself. So there’s no question of prejudicing a jury.”

  No, Sarah thought, it was even worse than that: television would inspire Leary to serve his ego and promote his own career. “Anyone who has a view on this,” Leary concluded, “can file a brief by the close of business tomorrow. But I’m inclined to grant Mr. Rabinsky’s request, as modified to protect the family’s identity.”

  “Your Honor,” Sarah protested, “that’s not enough time to brief the matter. Especially with only ten days before a hearing.”

  “Ms. Dash,” Leary retorted in an exasperated tone, “Ken-yon & Walker’s almost as big as the government. You’ve got at least four hundred lawyers over there. Turn them loose.

  “I’ve given you the timetable you wanted. So don’t complain about it.”

  It was clear that Leary’s attention span, never great, was exhausted. “All right,” he announced. “TRO denied, motion to intervene granted, media petition under consideration. No statements to the press until I say so.

  “Ms. Dash’s brief is due in five days, the reply brief two days later, hearing in ten days—three days for each side’s witnesses.” He looked sharply around the table. “Anything else?”

  No one spoke. “Then that’s it for now,” Leary said, and dismissed them.

  Leaving, Martin and Margaret Tierney avoided Sarah. For this, at least, she was grateful; their exchange felt exhausting and too personal, what lay ahead enormous. She tried to imagine what the night would hold for the Tierneys, parents and daughter, and whether Mary Ann could bear it.

  Still shaken, Sarah went to a pay phone to prepare her.

  FIFTEEN

  MASON TAYLOR put his feet up on the ottoman in Macdonald Gage’s office, studying the shine of his shoes.

  “This is where you draw the line,” he said. “It’s a power play—the little bastard’s trying to blow this woman by us.”

  Gage sipped his bourbon. Beneath his placid exterior he was sharply attentive—his job, and his hope of becoming
President, might well depend on the forces which Mace Taylor represented. More than any man in Washington, Taylor personified the connection between money and power.

  Taylor had not always inspired such awe, or such caution. A few years before he had been a second-term senator from Oklahoma with no prospects beyond that. Then the party had made him chairman of its Senate Campaign Committee and discovered his unique gift: Taylor was relentless in extracting special-interest money through promises or threats.

  His approach was brutally simple—do you want a place at the table, or the doors to Congress slammed in your face? Favored donors were encouraged to help draft legislation or target bills for defeat; the less generous were banished. Bemused, Taylor’s party colleagues found themselves surprised by, then reliant on, the contributions Taylor could produce. Avid to survive, they were fearful of the organization and money the unions and trial lawyers could marshal against them; few could resist more cash flowing into their campaigns, or a suggestion from Taylor that the lobbyist for an HMO or gun manufacturer was too important to ignore. Taylor had made himself the conduit between those willing to use money to assure their favored status and the lawmakers who needed money to keep their jobs. And neither group, they soon discovered, could do without Mace Taylor.

  The process changed Taylor, as well. As a senator, he was constrained from sharing in the wealth he had created. Outside, armed with cash from corporations and interest groups, he could charge clients the price of access to senators or representatives who wanted what Taylor could provide. Mace Taylor became an investor in his clients’ enterprises, and almost as wealthy as those he served.

  But this was only the beginning. With a shrewd eye, Taylor perceived the uses of the scandal culture: the competition among tabloids, cable channels, magazines, newspapers, and internal publications for that sordid private detail through which one might, by destroying a public career, rise above one’s peers. To the pragmatists who feared or needed him, Taylor added a second source of cash and power: the interest groups or wealthy zealots willing to fund investigations of politicians whose ruin they desired, or whom Taylor wished to control. Some in Congress were slow to understand this— the prior Majority Leader, resistant to Taylor’s instructions, awoke one morning to a phone call describing his sexual behavior with a sixteen-year-old prostitute. The next day he resigned; Macdonald Gage, who had known nothing of Taylor’s plans, became Majority Leader because Taylor wished it. It was a lesson Gage never forgot.