“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.
TWO
QUESTIONING DR. 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.
“Can you read back the question?” she asked the reporter.
The reporter did. “Our profession agrees that it’s quite clear,” Flom answered, “even without this statute. It’s illegal, after viability, to abort a normal fetus of a healthy mother. Regardless of the mother’s age.”
Sarah stood near Mary Ann, one hand flat on the conference table. Beside her, Mary Ann stared at the photograph of the ruptured uterus, which Sarah had left there. “So you’ve never performed such an abortion?” she asked Flom.
“No. Nor do I know any doctor who has.” Pausing, Flom gazed at the defendants. “What abortion opponents don’t understand—or at least pretend not to—is that late-term abortions are rare: beyond twenty-one weeks, fewer than one in a hundred; beyond twenty-four weeks, perhaps one in a thousand.
“The idea that they’re routinely used as a form of birth control slanders my profession. Nor, despite the propaganda otherwise, are doctors snatching babies from the womb moments before birth. Although thanks to this ill-conceived statute, Mary Ann Tierney is getting closer to that circumstance every day.”
Watch it, Sarah warned him with her eyes. She waited a moment to ask the next question. “Suppose, Dr. Flom, that a teenage girl came to you in the sixth month of pregnancy, lacking any means of support, and said she wanted an abortion because her boyfriend had abandoned her.”
Flom’s fine poet’s features became emotionless, and the renewed calm of his voice suggested that he had received Sarah’s message. “I’d feel profound sympathy. But I’d have to tell her it was illegal, and counsel her on alternatives like adoption.”
“Suppose that she’d been raped?”
“I’d feel even more sympathy, Ms. Dash. But my answer would be the same.” Flom spread his hands. “Only if there is a significant threat to the life or health of the mother, or a severe fetal anomaly, will I perform a late-term abortion.”
Sarah glanced at Leary. He seemed to be paying close attention, though she could not be sure what that meant. “Aside from hydrocephalus,” she asked Flom, “what are common threats to the life or health of the mother?”
“A cardiac problem, or cancer—any condition where pregnancy delays vital treatment.” Following Sarah’s cue, Flom faced Leary again. “Often, Your Honor, treatment has already been delayed by other conditions—poverty, lack of insurance, substance abuse, or simple ignorance—which forestall diagnosis and create the need for a late-term abortion. For teenage girls you can add still another: the attempt to conceal their pregnancy.”
“In your experience,” Sarah asked, “why do they do that?”
“Because, for a host of reasons, they’re afraid.” Pausing, Flom faced the courtroom, and spoke with quiet emotion. “But that leads to one very frequent reason young girls are afraid, which also leads to fetal anomalies. Incest.”
Sarah paused a moment. “Is that common?”
“We see it regularly,” Flom answered. “And it’s a little tough to talk that one over with Mom and Dad.”
In the silence, Martin Tierney rose. “Your Honor,” he said slowly, “I recognize that Dr. Flom sees social problems which are tragic and which we all deplore. Still, a fetus is a life. Nor should the sad facts of one family—or the claims about that family, true or false—deprive other families, such as ours, of the protection of this law.”
It was an attempt, however wan, to blunt the impact of this testimony. “Your Honor,” Sarah emphasized, “this is not a case of incest, and we acknowledge that the Tierneys are loving parents. But many girls subject to this law are not so fortunate.”
“All right,” Leary told her. “Go ahead.”
Facing Flom, Sarah asked, “In the case of troubled families, what are the drawbacks of requiring a parent to consent to a late-term abortion?”
Pensive, Flom steepled his fingers. “The best way to answer,” he said at last, “is to tell you a story.
“Last year, I got a call from a teenage girl who lived in another state. She was three months pregnant, and the law in her state required parental consent to any abortion. Because California has no such requirement, a women’s clinic referred her to me.
“Even on the telephone, she was crying. But I finally found out what else was wrong. Her father, an alcoholic, had raped her, and she was afraid to tell her mother.”
Pausing, Flom bit his lip. “She was hoping,” he continued, “that someone from the clinic could drive her here. But Congress had passed an earlier law. It forbids anyone not her parent to take a minor, without parental permission, out of state for an abortion. One law ordered her to tell her parents, and another kept her from escaping them.
“All I could tell her was to try and get here on her own.
“Three months later, she did. She was tired, and dirty, and hungry, much like the other runaways we see. I asked her what had happened.” Flom inhaled and his voice, though still level, was tight with anger. “Thanks to these ‘protective’ laws, she’d been forced to tell her mother. When Mom confronted Dad, he hanged himself. And so, unfortunately, the mother blamed her daughter.
“The girl ran away. By the time she got here, she was six months pregnant. All that I could do was hope that what was true in so many cases of incest—that testing would show the fetus to be defective—would be true here.
“It wasn’t. So instead of aborting her late father’s child, I delivered it. Now she’s trying to raise him on her own.” Once more, he looked up at Leary. “As a doctor I have to ask, Your Honor, why this was necessary. But Congress never asked. Instead they passed a law, and now they’ve passed another. God knows how many more tragedies these laws will force other girls to live with.”
There was quiet, and then Leary recessed the trial for lunch.
THREE
WHEN THE defense commenced its cross-examination of Dr. Flom, it was Barry Saunders, not Martin Tierney, who questioned on behalf of the fetus.
The General Counsel for the Christian Commitment was a large shambling man with small, shrewd eyes, a slightly pursed mouth, and razor-cut hair. To Sarah, he looked like the prototype of a southern football coach, with all the bluffness, calculation, and zeal to win that this implied.
“This procedure“—the word was laden with distaste— “you’re wanting to perform on Mary Ann’s child, is that what’s called a ‘partial birth’ abortion?”
Flom gave him a measured look. “In medicine, there is no such thing. That’s a term invented by politicians and anti-abortion activists.”
Saunders placed his hands on his hips. “You mean doctors don’t allow the baby to be partially delivered, then crush the skull?”
“Doctors may,” Flom answered, “if that’s the safest technique for saving the mother’s life or health. I don’t intend to do that here.”
“You don’t? Then you’re meaning to dismember the fetus and deliver it piecemeal?”
Beneath the table
, Sarah felt Mary Ann grip her hand. “No.” Flom’s voice remained calm. “Let’s be clear, Mr. Saunders. Dealing with a medical emergency which requires late-term abortion is neither simple nor pleasant, for either the woman or her doctor.
“For propaganda purposes, your group has tried to pass state laws barring procedures which may be the safest for the mother, but can be made to sound the most gruesome. Those laws were thrown out—they were too broad for doctors to know what was illegal, and created greater danger to the mother. So now there’s this law, which governs all late-term abortions in every state unless the parents consent.” Once more, Flom’s voice took on an edge. “This bars me from protecting Mary Ann’s reproductive capacity by any procedure, including the one I would anticipate using. So I suppose it has the virtue of clarity.”
Saunders appraised him, then said to Leary, “I realize the witness is ideologically committed to the pro-abortion cause. But he should confine himself to answering my questions. He can deliver speeches on the courthouse steps.”
Sarah remained sitting. “When Mr. Saunders deliberately misunderstands the witness,” she said to Leary, “and misstates medical procedures, his questions must be placed in context …”
“Confine yourself to answering,” Leary snapped at Flom.
“Just how,” Saunders inquired promptly, “do you intend to take the life of Mary Ann Tierney’s child?”
Flom glanced at Sarah. “Forgive me,” he told Saunders politely, “but perhaps both of us should leave to others whether a fetus without a brain has a ‘life’ as we understand it—”
“Oh, we’ll get to that,” Saunders cut in. “Just answer the question.”
Flom folded his arms. “Suffice it to say, Mr. Saunders, that a medical emergency like this is a tragedy for all concerned. The question is what procedure is safest for Mary Ann. Will you permit me to give you a little history?”
Saunders briefly flapped his arms, miming helplessness and impatience. “Go ahead. Seems like nothing’s going to stop you.”
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