“A secular humanist, in other words. Pornography in the classroom, but never prayer.” Seeing Taylor tilt his head in inquiry, Gage asked, “How’s she on abortion?”
“That’s rather hard to pin down, like so many things about her. One knows what she must believe. But without an opinion with her name on it, there’s no way of confirming it.”
As Gage watched, Taylor inclined his head toward the television in the corner of Gage’s office. “What about this girl’s case,” Gage asked, “the one who wants to abort a six-month-old fetus? Doesn’t that come to your court next?”
Again, there was a long, chaste silence. “One aspect already has,” Steele said at last. “I’m presiding over the emergency motions panel. We just turned down her lawyer’s appeal to keep her name out of the media, finding that question clearly within the discretion of the trial judge.” There was another pause, and then Steele spoke with new boldness. “However distasteful, I think the public will profit from facing the reality of abortion—that we refuse a human fetus the same protection the SPCA accords to wayward cats. And any woman who proposes abortion so close to birth, including a fifteen-year-old, should do so for all to see.”
To Gage, the last remark sounded like an audition, a harbinger of pointed opinions and ringing dissents were Steele granted the proper platform. “Does this have any implications for your colleague?” Gage inquired.
This time Steele’s quietude was intended, Gage supposed, to signal both reluctance and judicious thought. “Not in the normal course,” he answered carefully. “Even were she to continue here, we have a complement of twenty-one judges. And, normally, the panel of three are picked at random …”
His voice trailed off. “But?” Gage asked.
Gage sensed Steele picking his way through a verbal minefield; perhaps the speakerphone made him even more wary. “This girl’s three months from childbirth,” the judge answered. “Procedurally, any appeal would have to be an emergency, brought before our emergency motions panel.”
“The one you’re on.”
“Yes. Until the end of the month.”
Gage glanced at Taylor. “And the emergency procedure’s different?”
“By rule. Our panel can take the case itself, or assign it to another.”
Sitting back, Gage stared at the ceiling. “But,” he ventured carefully, “even were the case assigned to a panel which included her—however that might happen—now that she’s got her eyes on the prize, she’d probably find a reason to recuse herself. So, from my perspective, it’s better that the Protection of Life Act be upheld. Speaking as a senator, of course, not a judge.”
Steele chose not to answer directly. “There’s only one other way,” he observed in even tones, “for her to hear this girl’s case—even in theory. Other, that is, than as Chief Justice of the Supreme Court.”
Gage, too, felt himself becoming more cautious. “And what’s that?”
“After a panel’s decision, a party, or a judge of our court, can ask that the case be reheard en banc, by eleven of our twenty-one active judges—as happened in the Snipes case I mentioned. Or, in a rare case, by all of them.” Steele paused, then finished. “The odds of either outcome are long. But in a constitutional question as important as this, a little less so.”
“How long would such a process take?”
Gage could imagine Steele calculating time. “On an emergency motion,” he said at length, “and under the provisions of this statute, a hearing and rehearing would consume about a month.”
“But Masters could recuse herself.”
“She could, yes. After that, the only recourse for the losing party is a petition to the Supreme Court. Which the Court, in its discretion, can either grant or refuse.”
Taking Gage’s legal pad, Taylor scrawled “How long for that?” and held it up to Gage.
Gage repeated the question. “A week,” Steele answered. “Perhaps a little more.”
Soundlessly, Gage placed down the pad. “Without a Chief Justice, wouldn’t you guess that the current Supreme Court would split four to four on whether the Protection of Life Act should be upheld?”
Yet again, Steele paused. “It’s not for me to speculate, Senator. But such a split would dramatize the impact of choosing the next Chief wisely.” Pausing, Steele added, “Even your question underscores the gravity of this appointment. Which, after considerable reflection, moved me to pick up the telephone.”
Once more, Taylor smiled at Gage across the desk. In a pious tone, Gage told Steele, “I count on your patriotism, Judge. And you can count on my discretion.”
Switching off the squawk box, Gage said to Taylor, “Amazing—the name Caroline Masters never crossed his lips. Like writing in disappearing ink.”
Taylor shrugged. “That was a job application, Mac. He thinks you may become President, and he wants to be on the Court.”
Though Gage found this flattering, its truth was too obvious, and too commonplace, to require comment. “She won’t keep on deciding cases,” he observed. “Let alone one like this. The moment Tony Kennedy was nominated to the Court—from that same damn fool circuit—he made like an ostrich.”
“There’s also what Steele said about timing,” Taylor rejoined. “If we could hold up the vote on Masters, this girl’s abortion case might turn out to be useful. If only to dramatize that the new Chief could be the tie-breaker.”
“What would help there,” Gage cautioned, “is for Palmer to stall the hearing. He’s been too damned noncommittal.”
Taylor sipped his coffee, frowning. “If you still don’t want to play hardball, this criminal case could help us. The committee staff should dig into her cases, maybe her time as P.D.—give our allies something to point out to Palmer while we put her life under a microscope. I still think she’s maybe a dyke, this beard of a boyfriend notwithstanding.”
Though he agreed, Taylor’s remark touched a nerve in Gage; however practical it might be, recourse to the personal was too easy for Mace Taylor. As so often before, it reminded Gage that, in politics, riding the tiger—especially in the guise of Taylor—had its own distinct risks.
After a moment, Gage switched on his squawk box again. “Let’s call Paul Harshman,” he said. “He’s our best friend on Judiciary.”
* * *
“I’ve got Mace with me,” Gage began. “What’s going on with Palmer?”
The junior senator from Idaho issued a soft, disgusted expletive. “He’s being himself, the Lone Ranger. Narrowing the inquiry by sitting on the staff and the FBI. He’s even using his power as chairman to keep us from seeing the FBI’s raw data, including interview notes. As usual, only God—and the great Chad Palmer—knows why.”
Taylor slid his chair forward. “We don’t need the staff, Paul. If we somehow could get the raw data, I can find investigators to follow up. There’s money for that.”
Gage glanced at him sharply. To his ears, Taylor had come perilously close to suggesting that a senator, a ranking member of Palmer’s committee, try to get to the FBI by going around Palmer. On the other end of the squawk box, Paul Harshman remained silent.
“Let’s talk about nailing Palmer,” Gage interjected, then glanced at Taylor in admonition. “Politically, that is.”
FOURTEEN
FROM THE witness stand, Mary Ann’s doctor, James McNally, spoke like a peer to his friend Martin Tierney. To Sarah, Mary Ann looked diminished yet defiant, like a teenager being chastised by her elders for some selfish act. But, in this case, she had become a moral object lesson for millions to witness; though a technician focused the television camera on her doctor, the broadcast no longer censored her face or name. And though Sarah might have invoked the physician-patient privilege to keep McNally from testifying against Mary Ann, his advice was central to her case.
“I brought Mary Ann into the world.” Speaking softly, McNally turned his level gaze toward the girl. “I care about her deeply. But, as an obstetrician, my role now is to care for both Mary A
nn and her child. I simply can’t support her claim that an abortion is medically necessary and, for that reason, it conflicts with my obligations as a doctor—morally and ethically.”
Though admitting no doubt, McNally’s tone expressed more sadness than anger, and he seemed to impress Judge Leary. The two men even resembled each other, though McNally was older and bulkier. Sarah took an instant dislike to him.
“For what reason,” Tierney asked, “did you conclude that an abortion was not warranted?” His voice was more a worried father’s than an inquisitor’s; it was easy to imagine the two friends in the quiet of McNally’s office.
“To borrow from the Protection of Life Act,” McNally answered gravely, “this child does not constitute a ‘substantial medical risk’ to Mary Ann’s life or health.”
“What would be a substantial risk?”
“Preexisting conditions, as a rule. Cancer, which cannot be treated during pregnancy; heart defects; high blood pressure, which can lead to renal failure; diabetes, which may cause blindness or kidney failure.” Once more, McNally glanced at Mary Ann with an air of sadness and reproach. “Even with these potential difficulties, many women proceed with the pregnancy to see if the threat materializes. But Mary Ann has none of them.”
To Sarah, his tone of certainty—of judging the painful choices of pregnant women—translated as far too smug and patriarchal. She noted this for cross-examination.
“Obviously,” Martin Tierney said, “we’re also concerned about our daughter’s ability to bear more children.”
It was not a question, but testimony; however much he despised the cameras, Martin Tierney seemed acutely aware of his role as father in a domestic drama. Nodding, McNally said, “I know you are, Martin. But even Dr. Flom concedes it is highly unlikely that a classical C-section would compromise fertility.”
“When you say ‘highly unlikely’ …”
“Appreciably less than one in forty, in my opinion.”
Turning to Sarah, Mary Ann grasped her wrist. “He’s lying,” she whispered. Nodding, Sarah kept her eyes on McNally.
“It’s also conceivable,” McNally concluded, “that complications from a C-section could lead to a hysterectomy or other causes of infertility. But that’s one percent at most.”
Sarah’s stare at McNally hardened. Tierney stepped closer to the witness, as though to underscore a critical point. “And in the course of our consultations, what did you advise us as to whether delivery by cesarean section was safer for our daughter than late-term abortion?”
McNally gazed at Mary Ann with a sorrowful expression, and then spoke to Leary. “That late-term abortion posed the greater risk to Mary Ann’s life or health.
“The operation proposed by Dr. Flom is more than distasteful. The chance of puncturing the uterus, or some other misadventure, is more serious.”
Once more, Leary seemed engrossed. But Sarah felt quiet satisfaction; touching Mary Ann’s hand, she scribbled on her legal pad, “That was a huge mistake.” Conscious of those at the defense table, she did not change expression.
“As I understood you, Doctor, you testified that our grandson may have a disability.”
“I said may,” McNally answered with a judicious air, “because the hydrocephalus, while marked, is not in its severest form.
“Severe hydrocephalus is not compatible with life. But a sonographic measure of this baby for cortical thickness suggests that there is at least some reason for hope. It might even be possible to install a shunt, drain the fluid, and save the baby’s life. Which is the proper function of a doctor.”
Mary Ann was quiet now: McNally’s tacit reproof, Sarah thought—that he was acting to protect the life inside her— must resonate with the beliefs she had absorbed since childhood. “What percentage of late-term abortions,” Tierney inquired, “represent cases of hydrocephalus?”
“Very few, in my survey of the data—under ten percent. Other cases may include spina bifida, which can be severe, or not severe, or wholly reparable with surgery. And do we start including Down’s babies, who many people parent willingly?” Once more, McNally’s voice became didactic. “Dr. Flom excoriates Congress. I say thank God it cares. No sane society designates doctors as a special priesthood, charged with deciding what constitutes ‘meaningful life.’ And even a baby who may well die at birth deserves the compassion of the human community, not“—abruptly, McNally’s voice became caustic—“scissors in the back of his head.
“At a minimum, a humane society would pass laws—like this one—to prevent doctors from performing this horrific practice, just as we prevent them from prescribing narcotics without a license; or helping impoverished patients to harvest their organs for sale; or using their God-given skills to play God by putting the infirm to death. The pro-abortion argument that—uniquely—the state cannot regulate child-murder is ethically and morally repugnant.”
Flinching, Mary Ann turned from him. “But were ‘normality’ the standard,” McNally finished, “I’d give your grandson a ten percent chance of being normal. Which is greater than Dr. Flom’s exaggerated claim regarding the risks of a cesarean section.”
Tierney seemed to contemplate this with genuine sorrow. “What does that suggest,” he asked, “regarding the implications of permitting late-term abortion whenever a doctor claims that it protects a mother’s physical health?”
“That ‘physical health,’ as defined by Dr. Flom, is a slippery slope which brings late-term abortion perilously close to abortion on demand. And that ‘mental health’—a stated concern of Dr. Blake’s—will take us all the way.
“At that point a doctor can conclude that ‘mental health’ warrants aborting a thirty-week-old fetus to spare a seventeen-year-old girl the trauma of not fitting into her prom dress.” Pausing, McNally turned to Mary Ann with an air of avuncular concern. “As a doctor and friend, I’ll do anything I responsibly can to care for Mary Ann Tierney. But we’re all here today because she chose to have sex, resulting in a pregnancy. That decision—that medical fact—has profound and important implications for two lives, not one.
“Mary Ann is here to speak for herself, she claims. But who, then, speaks for her son?”
Despite her feelings, Sarah acknowledged, that McNally made a forceful witness; the reporters present had stopped whispering, and were either engrossed or scribbling notes. “To remove a mole from Mary Ann’s cheek,” the doctor said to Martin Tierney, “I’d require your permission as her father. Yet this procedure has far greater implications.”
“Indeed.” Martin Tierney’s voice, though quiet, had a chilling undertone. “Please describe the procedure through which Dr. Flom proposes to take my grandson’s life.”
“Very well,” McNally answered with distaste. “On the first and second days, Dr. Flom will insert dilators into your daughter’s cervix.
“On the third day, he will remove the dilators, and rupture the membrane protecting the fetus.
“At this point, some doctors dismember the child’s extremities, while others would partially deliver his feet and legs. Dr. Flom’s procedure is aesthetically superior: he will prepare to deliver your grandson normally.” Pausing, McNally scowled. “To accomplish this, while lifting Mary Ann’s cervix, Dr. Flom will jam a pair of blunt curved scissors into the baby’s skull.
“His next step will be to spread the scissors to enlarge the hole. Then he’ll insert a catheter, and suction out what’s inside. That’s an experience Mary Ann cannot escape, and which none of us ever wish her to know.”
At her side, Sarah saw Mary Ann’s face drain of blood. “Medically,” McNally concluded in a tone of devastating quiet, “its only ‘advantage’ is to guarantee that your grandson— Mary Ann’s child—will be dead upon delivery. And that’s not why I went to medical school.”
FIFTEEN
WALKING TOWARD James McNally, Sarah tried to block out everything but what she had to do.
“Have you ever performed an abortion?” she asked.
&nb
sp; McNally folded his arms. “No.”
“Because you’re morally opposed to abortion?”
McNally frowned. “I’m Catholic, and I follow the teaching of my church. But my beliefs are also based on science, and on a doctor’s obligation to save life.”
Sarah paused, eyeing him curiously. “As a doctor, have you ever treated a rape victim?”
Quickly, McNally glanced at Martin Tierney. “Yes,” he answered. “Several.”
“In your observation, did those women find being raped traumatic? Genuinely traumatic, that is?”
Sarah saw McNally’s mouth tighten. “Yes.”
“Have you ever treated victims of incest?”
McNally seemed to draw his body tighter. “Yes.”
“What about both, Doctor—where the patient was a victim of rape and incest?”
McNally paused. “Once.”
“How old was she?”
“Fourteen.”
“Did you have occasion to observe how the experience affected her?”
Once more, McNally hesitated. “Adversely, it was clear. She had a hard time talking about it …”
“Was she depressed?”
“Depressed? At the least. She reported difficulty sleep-ing …”
“Was she potentially suicidal?”
McNally considered this. “I would have to say she was.”
“Your Honor.” Behind Sarah, Martin Tierney rose. “I fail to see relevance.”
Leary turned to Sarah, arching an eyebrow in inquiry. Ignoring Tierney, Sarah said, “One more question, Your Honor.”
“Go ahead.”
“You were describing, Doctor, a fourteen-year-old who was sleepless, despondent, and potentially suicidal as a result of being raped by her own father. In your view—moral, religious, and medical—is such a girl entitled to an abortion?”
Grimacing, McNally braced himself. “No,” he answered. “However evil her child’s provenance, it is, nonetheless, a life.”
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