At the defense table, Martin Tierney looked down with furrowed brow. Sarah wondered how this performance was affecting him; Saunders’s veiled bullying and anti-intellectualism seemed contrary to Tierney’s faith in argument and reason. Quickly, she decided to let Saunders do what he wished, and place her trust in Flom.
“First,” Flom said, “there’s a myth that late-term abortion originated with Roe v. Wade, and reflects a particularly barbarous extension of abortion on demand. But as early as 1716, an English medical treatise proposed saving the mother’s life by removing the contents of the fetal cranium before delivery.
“In essence, that’s what I propose to do here, if possible. Although, in this case, we can expect the cranial contents to be minimal—except for fluid.”
Saunders’s small mouth grimaced with distaste. “You’re assuming a lot, Doctor, about someone else’s grandson. Maybe you can tell me precisely how you intend to do away with this life you deem so worthless.”
Instinctively, Sarah rose to object, then sat again. “No life is ‘worthless,’” Flom responded tartly. “But as a doctor, I’m aware that the same anomaly which renders this fetus virtually hopeless threatens Mary Ann’s capacity to have normal children. This law prevents me from protecting her by the safest possible means—or any means. And that, as a doctor, I resent.
“As a doctor, Mr. Saunders, I’m faced with the problem of getting an unnaturally enlarged fluid-filled object, the fetal head, through the opening of a semi-elastic container, the uterus, which is too small for this to be possible without damaging the container or its opening.”
Beneath the table, Sarah felt Mary Ann’s grip tighten. The court was seized by intense quiet; Leary was quite still, and his clerks had stopped snickering and whispering. “One technique,” Flom told Saunders, “of which you apparently disapprove, involves extracting the feet in a breach delivery, then decompressing the skull. The technique which I think safest involves decompressing the skull, and delivering as normal.
“Morally, I don’t see the difference. Medically, I’ve performed this procedure precisely one thousand three hundred sixty-seven times.” Looking past Saunders, Flom seemed to speak to Martin Tierney. “Of that number, I’ve had five hospitalizations for complications, three blood transfusions, no extra surgeries, and no cases of infertility whatsoever. If I’m permitted to do so, I will make certain that Mary Ann can have more children. Period.”
Martin Tierney’s pale eyes were thoughtful. As if to himself, he slowly shook his head and then, rising, asked Judge Leary, “May I briefly question the witness, Your Honor?”
Saunders turned to him, seemingly amazed at this intrusion. For her own reasons, Sarah sympathized—Saunders offered Flom a better foil. Swiftly, she said, “This isn’t tag-team wrestling, Your Honor. It’s enough for the witness to be questioned by two parties, let alone two lawyers for one party.”
“The witness seemed to be speaking to me directly,” Tierney replied in mild tones, “as a father, if not a prospective grandfather. I’d like to make some inquiries in that same spirit.”
“Go ahead,” Leary ordered. “You can sit down, Mr. Saunders.”
Without glancing at Tierney, Saunders retired to the defense table, sitting with his chin propped in his hand. Moving toward Flom, Tierney addressed him with quiet intimacy. “It’s possible, is it not, that this child could be born with a normal cerebral cortex?”
“Objection,” Sarah said at once. “In theory, almost any-thing’s possible. The question is how likely—”
“Are you testifying,” Leary interrupted, “or merely telling the witness how to testify? Sit down, Ms. Dash.” As Sarah sat, flushing, Leary demanded, “Answer the question, Dr. Flom.”
“It’s extremely unlikely, Your Honor.”
“But medically possible,” Leary pressed.
“Put that way, yes.”
Leary shot a triumphant look at Sarah; helpless, she wondered whether he had taken such a dislike to her, or to her case, that he meant to undermine her before her client, her witness, and an audience of millions. In any case, she was warned; Flom was on his own.
Facing Flom, Tierney said, “You should also know, Dr. Flom, that any risk of infertility to Mary Ann distresses her mother and me more than we can express. Can you accept that?”
“Of course.”
Pausing, Tierney slumped as though burdened by his responsibilities as a parent, and its implications for Mary Ann. “You place that possibility at roughly five percent, correct?”
“I do.”
“But that’s not a precise figure, is it?”
“No. It’s an estimate. It could be more, or less.”
“So it could be four percent. Or three.”
“Yes.”
“And, indeed, some studies place the risk at two percent, or lower.”
Flom hesitated; like any good expert, Sarah noticed, he became less voluble when wary of his interrogator. “That’s true,” he answered. “Perhaps one of our differences is that I wouldn’t deem even that an acceptable risk for my own daughter.”
Tierney gave him a small, bleak smile. “If my grandson were ‘normal,’ in your view, but the same risk to Mary Ann existed, would you recommend aborting him?”
Flom frowned, unsettled. “That would be highly unusual, Professor Tierney. It’s a situation I’ve not faced.”
“Face it for a moment, Doctor. Without this law, the decision would be up to you.”
Flom hesitated. “Under those circumstances, I don’t think I would.”
“So,” Tierney pursued, “your decision turns on your belief that my grandson isn’t ‘normal.’”
“I think it’s important, Professor Tierney, to weigh the prospects of a meaningful life for this child against the risks of a classical cesarean section.”
Tierney moved closer. “But isn’t this ‘weighing’ process of yours a lot like playing God? What standards circumscribe your judgment?”
“The standards of medical ethics—”
“As interpreted by you? Suppose there was no risk to Mary Ann, but six months into pregnancy you discovered that she was carrying a Down’s syndrome child. If this law did not exist, would you abort the child if she asked you to?”
Flom crossed his arms again. “Under those circumstances,” he said at length, “I’m not comfortable with termination.”
Tierney raised his eyebrows. “But some would be?”
“I can’t answer that, Professor. But instead of the mother deciding whether she can raise a Down’s baby, should the grandparents decide? I’ll leave it to you to explain why that’s better.” Leaning forward, Flom tried to alter the balance between them. “But we’re not dealing with a Down’s baby, are we? We’re dealing with an anomaly which is infinitely worse, with potentially terrible consequences to your daughter …”
“Which you believe constitutes a ‘medical emergency,’ justifying termination.” Pausing, Tierney scrutinized him closely. “What’s to keep you, Dr. Flom, from deciding that anyone who wants a late-term abortion faces a ‘medical emergency’?”
For the first time, Flom bristled visibly. “My sense of ethics—which is also that of my profession.”
“Speaking of your profession’s ethics,” Tierney replied in unimpressed tones, “didn’t I understand you to say that fetal surgery could result in ‘normal’ births for thirty percent of hydrocephalic fetuses?”
“Roughly, yes.”
“But your profession has now banned such surgery.”
Flom sat back. “The results in the remaining seventy percent were tragic. Including to condemn a damaged child and its family to several years of pain and hopelessness …”
“And so,” Tierney pursued, “the ethics of your profession permit you to deny my grandson a thirty percent chance of developing a ‘normal’ brain. And then permit you to abort him because he poses a very remote threat of infertility.”
At the plaintiffs’ table, Mary Ann was still; Sarah wond
ered whether, in her mind, the credibility of Flom versus her parents hung in the balance. “Professor Tierney,” Flom said tightly, “we’re discussing fantasy, not fact. If you can tell me this fetus has a five percent chance of having a brain, I’d be interested to hear about it. But you won’t because you can’t. Instead we have this law.”
“Which protects our daughter,” Tierney rejoined, “and our family. You don’t know anything about her, do you? Or us. And yet you propose to take our place, without knowing our reason.”
“No,” Flom answered firmly. “I propose to practice medicine, the best way I know how, and to let Mary Ann decide what to do about this tragedy. For you to take that decision away from her is contemptuous of medical science, and of her.”
At this, Tierney hesitated. With fascination, Sarah watched a father weigh a lawyer’s dilemma: whether he had accomplished enough, and whether continuing would cause more harm than good—to his case, and within his family.
Sitting beside her, Mary Ann seemed not to breathe. “No further questions,” Tierney said.
* * *
In a split second, Sarah decided, and was on her feet. “Why do you perform late-term abortions, Dr. Flom?”
Flom considered her with weary dignity. “To protect the life and health of the mother.”
“Do you enjoy that aspect of your practice?”
“I do not. It’s difficult for everyone—occasionally, I have dreams about it.” Glancing at Tierney, he added quietly, “I set out to deliver babies, not terminate problem pregnancies.”
“So how did your practice evolve?”
“Because I found out women needed me. Ob-gyns are popular—doctors who perform late-term abortions aren’t.” He inhaled, then said in a harsher tone, “Do you know why I’ve performed over one thousand late-term abortions? Because there are only two doctors in California who will.”
“Why so few?”
“Because we get harassed by groups like the Christian Commitment. My wife’s been confronted at the grocery store, asked why she’s married to a baby-killer—”
“I object,” Saunders called out. “This is slander, hearsay, and irrelevant …”
Sarah spun on him. “You object? I object to the demonstrators you sent to harass us this morning. But I thought you’d be proud enough to let the world know.” At once she turned to Leary, “If I’m angry, I apologize. But Mr. Saunders implied that Dr. Flom was acting callously, even blithely. Out of decency, I ask that Mr. Saunders at least allow him to complete his answer.”
For the first time, Leary seemed to regard her with something akin to respect. “Finish your answer,” Leary told Flom.
Turning, Flom addressed himself to Saunders. “There have been death threats—to myself and to my wife. Given the murder of other doctors, I have to take them seriously.
“We have guards at the hospital now. Before I appeared here, I spoke to my family, and polled the members of my clinic. Because my testimony on television poses a threat to them.”
Slowly, he faced Tierney. “So, no, Professor Tierney—I’m not playing God. I don’t want to play God with women’s lives, or the lives of my family or my colleagues. I’d just like to be left alone, by Congress and by your allies, to be the best doctor I can.”
Saunders began to protest. Then Tierney grasped his arm, and the courtroom was silent.
“No further questions,” Sarah said.
FOUR
“IF WE CAN’T get you confirmed,” Adam Shaw told Caroline, “without answering a single question about abortion, we’re amateurs.”
They sat around a long table in a wood-paneled conference room in the West Wing. Her other interlocutors, Ellen Penn and Clayton Slade, smiled knowingly; as an outside adviser, Shaw had shepherded two prior Supreme Court nominees through the gauntlet of Senate confirmation, and understood how byzantine the process had become.
“Responsiveness is risky,” Ellen affirmed. “Bob Bork tried to answer questions, and it killed him. If you’re careful, the partisan bitterness that’s existed ever since the Bork fight won’t spill over onto you.”
Once more, Caroline felt that she had entered the shadowy zone between law and politics, where candor was a menace and honesty a curse. “So this is not my God-given chance to demonstrate how brilliant I am.”
“It’s their chance,” Shaw answered. “Your job is to convince ten out of eighteen senators on the committee, and fifty-one out of a hundred in the full Senate, to vote for you. The more they talk, and you listen, the less chance for you to screw up.” He gave Ellen Penn an ironic glance. “As the Vice President knows, her former colleagues will be happy for the camera time. Beginning with Chad Palmer.”
“I call it the eighty-twenty rule,” Ellen told Caroline. “If they’re talking eighty percent of the time, and you twenty percent, you’re winning. If it’s sixty-forty, you’re in trouble. And if it’s fifty-fifty, you’re in deep shit.
“These hearings can make or break you. Our job, in the next few weeks, is to make sure you’re the best-prepared nominee Palmer’s committee has ever seen. Like it or not, that means the most well trained.”
Clayton nodded in affirmation. “We’ll get you briefing books on every conceivable issue. We’ll have a platoon of law professors to brief you on new developments. Then we’ll put you before some murder boards …”
“‘Murder boards’?” Caroline inquired. “Like mock hearings?”
“‘Murder boards,’” Shaw responded, “captures the spirit of things. At the hearing room doors, the Constitution stops, and Palmer and his colleagues become God. There are no rules of evidence, and some on his committee won’t be governed by the rules of decency. Imagine yourself as the star of every bad hearing in the last quarter century.” Pausing, Shaw locked his gaze on Caroline. “You could be forced to lay your life bare—like John Tower.
“Your net worth will be exposed—like Nelson Rockefeller.
“Your comments at the water fountain twenty years ago might get thrown back at you—like Clarence Thomas.
“The videos you rent from Blockbuster may be uncovered— like Robert Bork.
“Your confidential medical records will be dissected—like William Rehnquist.
“Your former use of drugs or alcohol could be used against you—like Douglas Ginsburg. Or even your driving record in college—like Dick Cheney. And all this time the committee, the FBI, and any interest group who doesn’t like you will be digging for more.” Sitting back, Shaw’s voice became softer. “Our job is to make sure your answers are as cogent, persuasive, and uninformative as you can make them. So that the committee goes back to making speeches instead of asking more questions.”
None of this daunted Caroline; nothing was a surprise. What remained unspoken and uncomfortable was the fact of Brett, and Chad Palmer’s ambiguous role as Caroline’s protector and interrogator. “When will I meet Senator Palmer?” she asked.
“Soon,” Shaw answered. “You’ll be starting a round of courtesy calls to every member of the committee, beginning with Palmer. We’ll tell you who to watch out for …”
“But Palmer’s critical.”
“Yes—and later on, Macdonald Gage. We’ll try to get you a meeting with him, too. But the main point there is not to give him ammunition.”
Caroline reflected that her confirmation, and more, depended on the complex motives and ambitions of two men she did not know. “You won’t be out there by yourself,” Ellen told her. “We’ll have a team keeping tabs on all the senators. The Minority Leader, and the ranking Democrat on the committee, will be looking out after your interests. We’ll be lining up the best witnesses to support your nomination, and a string of endorsements, from the ABA to the AFL-CIO.” Ellen’s manner radiated energy and confidence. “Last, and best, there’s President Kilcannon. He’s made your confirmation the first test of his presidency.”
Though meant to reassure, Ellen’s words underscored the stakes for all concerned. Wryly, Caroline said, “I’ll kee
p that in mind.”
The others, even Clayton, smiled. “But whatever they ask you,” Adam Shaw said with equal dryness, “don’t act nervous—the TV cameras pick up tics. Whenever they shaded the truth, Al Haig jiggled his knee and Kissinger began picking his nose.”
“This brings up the matter of visuals,” Clayton observed. “We’ll reserve places so that your family and Jackson Watts can sit behind you.”
Nodding, Caroline felt her past converge with her present, and the risks that bore. “Is there anything new,” Clayton asked her, “that could be a problem?”
Caroline considered this. “Only one thing,” she answered. “Our court’s about to issue an en banc opinion in the case of a prisoner named Orlando Snipes.
“It could be controversial. Snipes is an armed robber who sued prison officials in California to stop his cellmate from beating and abusing him sexually. The original panel opinion by Lane Steele denied Snipes the right to sue—”
“I’m familiar with Steele,” Shaw interjected. “He sees himself as the intellectual heir to Roger Bannon. Only he thinks that’s an achievement.”
“Exactly. When I read Steele’s opinion, I asked the full court to vote to rehear en banc.
“They agreed, by eleven votes to ten. Eleven of us heard it, and then reversed by six to five. I was the initiator and, one could say, the deciding vote in both instances.”
“Did you write the en banc opinion?” Clayton asked.
“I would have, but the day we reheard it the President chose me for the Court. So my friend and mentor, Blair Montgomery, reassigned to himself the job of writing the opinion.
“As senior judge in the majority that was Blair’s prerogative. His stated reason was that I would be too busy. His real reason was to save me trouble in these hearings.”
“Will it?” Ellen asked. “If you initiated the rehearing, won’t that come out?”
“It shouldn’t. Some aspects—such as my role, and our deliberations—are supposed to be internal.” Pausing, Caroline glanced at Clayton. “Blair was trying to make me look like just another vote in support of his opinion. Which, given that he despises Steele and all he stands for, he was more than happy to write.”
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