Protect and Defend

by Richard North Patterson

  “And so, even if she asked you for an abortion—a legal, first-trimester abortion—you would not perform it.”

  “No. Instead I’d try to get her all the support and help I could, including some sort of intervention with the father …”

  “A little late for that, don’t you think?”

  “Ms. Dash,” the doctor said tightly, “I cannot condone abortion, even under circumstances as tragic as those.”

  “Even if her prom dress didn’t fit?”

  “Your Honor …,” Tierney protested.

  Dismissively, Sarah said, “I’ll withdraw it,” without breaking off her scrutiny of McNally. She was locked in on him now, the questions coming reflexively; watching her, McNally hunched over as though entrenching himself.

  “In other words, Doctor, no emotional trauma—whether incest or prospective infertility—justifies abortion.”

  “That’s right.”

  “In your mind, is there ever a situation where abortion is morally justified?”

  “Yes. Where it’s clear the mother may die.”

  “Even if the fetus appears healthy?”

  “That’s a difficult case, Ms. Dash. But where a mother already has children who depend on her, and they’re at risk of losing her, the balance may favor saving the mother’s life.”

  “In that case,” Sarah prodded, “you think she’s free to decide, and that a doctor should be able to proceed. Even though the baby’s ‘normal.’”

  “Yes.”

  “But not when the fetus is unlikely to have a brain, and the threat is not to life, but to reproductive health?”

  McNally sat back. “One can always design harsh hypotheticals,” he answered. “Ones which touch the heart, and tax the conscience …”

  “I take it that answer meant ‘no.’ Even if the girl were your daughter, and wanted an abortion?”

  The question, though obvious, induced a reflective silence in McNally. “I can see,” he firmly answered, “the pain such a conflict can bring. But I hope I would be principled enough to do as Martin Tierney has.”

  It was a better answer than Sarah had hoped for; quickly, she decided to leave it there. “Suppose,” Sarah asked, “that a court granted your daughter that right, over your objections. Would you want the late-term procedure done in the safest possible way by the best available doctor—regardless of your objections?”

  “For my own daughter?” McNally’s voice held quiet indignation. “Of course. Or for anyone’s.”

  “Do you dispute Dr. Flom’s statement that he has performed this procedure over thirteen hundred times, with no serious complications?”

  McNally’s ire yielded to distaste. “I can’t dispute it, or confirm it.”

  “Are you suggesting, Dr. McNally, that Dr. Flom is lying?”

  “No.”

  “Good. Are you aware of any late-term abortion procedure safer than Dr. Flom’s, or any doctor more capable?”

  “In that particular context,” McNally answered with disdain, “no.”

  “Yet you disapprove of Mary Ann Tierney availing herself of that same procedure?”

  “Yes. Because it’s barbarous …”

  “But not unsafe.”

  “No.” McNally’s voice turned acid. “Except for the baby, of course.”

  Sarah ignored this. “And yet you told Martin Tierney that birth by cesarean section was statistically safer than late-term abortion.”

  “Overall, yes. According to the literature.”

  “‘According to the literature,’” Sarah repeated. “What about your own experience, Doctor?”

  McNally sat back, mouth slightly parted; by degrees, Sarah watched apprehension overtake him. “As I told you,” the doctor temporized, “I have no experience with abortion. At any stage.”

  “But what about cesarean sections?”

  After a moment, McNally nodded. “I have performed cesarean sections, yes.”

  “Including the classical cesarean section which would be necessary for Mary Ann to give birth?”

  “Yes.”

  “They’re much more invasive than a normal C-section, aren’t they?”

  “Yes.”

  “Yet you say—absent unusual complications—that a classical C-section would be ‘unlikely to compromise Mary Ann’s fertility’?”

  “That’s what I believe.”

  “How unlikely, Doctor? Two percent?”

  “Less.”

  “One percent?”

  “Perhaps.”

  “Would you accept a one percent risk of infertility for your daughter?”

  “Objection,” Tierney called out.

  Still facing McNally, Sarah waved a hand. “Isn’t it true, Doctor, that when you first spoke to Mary Ann and her mother, you placed the risk at around five percent?”

  “Perhaps.” McNally folded his arms again. “But I’ve since consulted the literature.”

  “‘The literature,’” Sarah repeated. “So we’re back to that again.”

  Before Tierney could object, the witness, stung, countered, “In my experience, Ms. Dash, I’ve never seen a classical cesarean section later cause a woman’s uterus to explode, as Dr. Flom described.”

  “He didn’t just describe it,” Sarah answered. “He brought photographs. But the other risk you mentioned was a surgical mistake in performing a classical cesarean section, correct?”

  Once more, the witness studied her with veiled eyes. “Correct.”

  Softly, Sarah asked, “In your observation, Doctor, has such a mistake resulted in a hysterectomy?”

  McNally’s lips compressed. “Yes. I mentioned that.”

  “How many times?”

  “I don’t know. It occurs, Ms. Dash—just not often.”

  Sarah moved closer. “How often,” she inquired, “when you were the doctor?”

  The hurt which showed in McNally’s eyes occasioned, in Sarah, a moment’s pity. “Twice.”

  “And, in both cases, you were sued for malpractice—”

  “Objection.” Tierney’s angry voice cut through Sarah’s question. “The question is irrelevant, and its clear intention is to humiliate this witness in public—”

  “Unlike his testimony,” Sarah shot back, “which was intended to humiliate your daughter in public.” To Leary, she said, “This witness claimed that a late-term abortion performed by Dr. Flom is more risky than a classical C-section. I’m entitled to impeach his credibility.”

  Leary nodded. “I’m sorry, Dr. McNally, but the question falls within the scope of your direct testimony.”

  Slowly, McNally turned to Sarah, speaking with a dignity she found far more affecting than his air of moral certainty. “Ms. Dash, I’ve practiced medicine for thirty years. I’ve brought countless children into the world and, on occasions, saved lives. But nothing can erase the pain of those mistakes.”

  “Neither for you,” Sarah answered, “nor for the two infertile women, I suppose.”

  Briefly, McNally averted his gaze. “I suppose not, no.”

  Sarah nodded, maintaining a few feet of distance. “Isn’t it likely, Doctor, that your moral repugnance for abortion affected your medical assessment of the risks to Mary Ann?”

  The witness studied his hands. “That’s impossible to say …”

  “So you’re not claiming—after all—that a classical cesarean section performed by you is safer than the procedure performed by Dr. Flom? Or even as safe?”

  Resentful, the witness looked up at her again. “I’ve made mistakes, Ms. Dash. Doctors do.”

  “Or that you’re certain the risks of infertility aren’t closer to your original estimate of five percent?”

  “No.”

  “Or that other risks aren’t twenty times greater?”

  “Certain? No. Though I believe they’re not.”

  “Nor are you certain that this fetus has a better chance of developing a cerebral cortex than Mary Ann has of becoming infertile?”

  “No.” McNally fold
ed his hands. “What I’m saying is that there’s no way of finding out unless Mary Ann goes to term. And that, whatever the odds, we should value unborn life.”

  “And that,” Sarah followed, “in the case of Mary Ann Tierney, her parents should force her to find out, regardless of the risks.”

  “I’m saying they can, morally.”

  “Even if you were certain it had no brain?”

  For a long moment, McNally hesitated. “Yes,” he said simply. “In my value system, the life of one patient outweighs the finite risk to the other.”

  Sarah put her hands on her hips. “Even though such a ‘life’ would barely survive its birth?”

  Quiet, McNally considered his answer. “That’s not my province, Ms. Dash. It’s God’s.”

  “Except,” Sarah retorted, “when the baby is normal, and the life of the mother is at risk. Shouldn’t God decide that, too?”

  The witness hesitated, caught in a logical inconsistency. “That’s the worst possible dilemma,” he conceded. “I cannot imagine God sanctioning such a sacrifice for any lesser reason.”

  “And so it’s God who deprives you—and Mary Ann Tierney—of choice?”

  “Not in the sense that He speaks to me. Except as He speaks to us all: ‘Thou shalt not kill.’”

  “Is that a medical judgment, Doctor? Or one which reflects your particular moral and religious beliefs?”

  Trapped, the witness searched for a politic answer, then seemed to settle for truth. “Everything I’ve learned, Ms. Dash, suggests that they’re inseparable. Whatever the risks.”

  Sarah stared at him. “Until they happen,” she answered. “And not to you.”

  SIXTEEN

  SITTING IN the Majority Leader’s wood and leather office, Caroline Masters wondered at the tug of memory this evoked—she had not been here before, nor met Macdonald Gage. But she had little time to ponder this: Gage compelled her full attention.

  His amiable demeanor and courtly air put Caroline on edge; she sensed that his conversation was not meant to convey meaning, but to conceal the traps which lurked beneath. Even his appearance—the frequent smiles; the small, shrewd eyes; the pedestrian gray suit with the Kiwanis pin in its lapel—seemed intended to suggest a small-town mayor, not the master of the Senate, one of America’s most powerful men. Their first five minutes together were a minuet of exquisite courtesy, as Gage assured her of his fondness for Kerry Kilcannon, her native state of New Hampshire, and, with the barest hint of irony, San Francisco.

  “Seems so far away from home,” he said. “How’d you decide to move there?”

  Because there were so many gay folks, Caroline considered saying. Smiling, she answered, “Because it seemed so far away from home.”

  Gage produced his automatic smile, a movement of the jaw muscles which signaled that this, too, was ritual. Though her answer seemed to tell him little, it was closer to truth than anything they had said—at twenty-two, Caroline had fled her father, a tyrant who concealed his insecurities and implacable will beneath the velvet glove of paternal concern.

  “Growing pains,” Gage remarked pleasantly. “Never wanted to leave Kentucky myself, never doubted where I’d raise my children. Just lucky, I guess.”

  This did not seem to require comment; rather than utter some banality, Caroline smiled yet again. Reticence was another lesson forced on her by Judge Channing Masters, whose every conversation with the young Caroline had been a subtle probe. And then the dormant memory caused a tremor which broke through to her consciousness: Gage’s office was far too like her father’s den.

  The remembrance caught her short. “Chief Justice of the Supreme Court,” Gage remarked with a joking air. “Feel like you’re up to it?”

  This time Caroline did not smile. “Yes,” she answered simply. “I do.”

  Her decision to scorn the usual platitudes—what an honor this would be, how humbled she was—seemed to throw him off, but only for a moment. “That’s real good,” he drawled in a contemplative manner. “You know, I can’t help thinking of Roger Bannon—his legacy at the Court, the wonderful family he had. America’s most preeminent judge should not only be a symbol of jurisprudence, but a model for everyone. Wouldn’t you agree?”

  The thrust of the question, slightly more pointed, unnerved her. Perhaps it was the thoughts she had carried here, and her burden of concealment. “If not a model of perfection,” Caroline responded, “at least of humanity.”

  The answer, which Gage might interpret as suggesting that Bannon had been less than that, evoked from him a smaller smile. Nodding toward the blank screen of his television, he said, “Speaking of humanity, are you watching the Tierney case?”

  The question could have many facets—political, legal, and personal. “No,” Caroline answered. “For the same reason I don’t go to any trials in the lower court—to avoid appearance of bias.”

  Though Gage might interpret this as evasive, he nodded his approval. “Yes, indeed, Judge Masters. A wise policy. Especially what with Sarah Dash.”

  Delivered with surface innocence, the bland remark told Caroline that Gage was delving into her life. Left unspoken was whether he intended to refer to Sarah’s clerkship, or their friendship, or to jar loose some deeper admission; what seemed plain was Gage’s intention to alarm her. “In any case,” Caroline answered.

  Gage shot her a keen, fleeting glance. Then he settled back in his chair, hands folded across his belly, and gazed at the ceiling as if musing to himself. “Still,” he said. “You must have been as taken aback as I was when they challenged this law in court. Who, I asked myself, could be for partial-birth abortion and against involving parents—even if they believe themselves pro-abortion? But then I realized this trial was a virtual seminar, especially for young women who may face this situation.”

  Caroline said nothing. Gage lowered his eyes, and then looked directly into hers. “That’s why it’s good,” he said, “that you’ve been so strong on adoption.”

  Was this about Brett, Caroline wondered, or another tangent of abortion? Or merely a signal that he was studying Caroline’s record as closely as her life. “To be unloved,” she answered, “is a tragedy. For the child and, perhaps, the rest of us.”

  Gage nodded sagely. “A loving family,” he said, “is the best social program of all. I learned that from my own adoptive family, and from the little girl my wife and I took in as our own.”

  This could be either an attempt to ferret out her social views, or a tacit reminder that Caroline had no family of her own, perhaps aimed at whatever hidden vulnerability might account for this. Detaching herself, Caroline considered Gage anew. Every nuance, every molecule, of the persona he had constructed, suggested to her that he should remain in the shadows of the Senate, ruling by indirection and maneuver, rather than run for President. It was hard to imagine this consummate pragmatist inspiring millions, as had Kerry Kilcannon. Though Gage lacked the bedrock dedication to country above all that helped place other men—a Robert Taft or Bob Dole—among history’s great Majority Leaders, his gifts, like theirs, were well suited to the intimacy of the Senate. And yet, Caroline knew, powerful forces wanted Macdonald Gage to be the President, and that was how he saw himself. This mismatch between his ambitions and his popular appeal might make Gage that much more calculating, that much more beholden to the interests who promoted him, that much more dangerous to Caroline herself.

  “Family,” Caroline responded, “can be the best thing that ever happens to us. Or the worst.”

  Gage’s look of piety slowly faded. “Tell me, Judge Masters, how would you describe your judicial philosophy?”

  Caroline was prepared for this. “Careful,” she answered. “Respectful of precedent. I don’t think judges should legislate.”

  Gage nodded in feigned relief. Smoothly, he said, “So you believe as Roger Bannon did?”

  Caroline pretended to consider her answer. “I can only be myself, Senator. Let me put it this way: a Supreme Court which is carel
ess of the law can diminish respect for law. But there are clearly times when what might have been acceptable to Thomas Jefferson becomes unacceptable to us, and whether in 1954 Jefferson might have made Sally Hemings drink at the water fountain marked ‘Coloreds Only’ becomes irrelevant. At best.”

  By picking this sardonic example, Caroline placed her response beyond debate—especially by a man whose private club memberships, Clayton Slade had told her, included those which admitted a mere trickle of minorities, and excluded women altogether. With a first fleeting trace of annoyance, Gage asked, “What about the Second Amendment? Think the founding fathers put it there for a reason?”

  “Of course,” Caroline answered promptly. “At a minimum, it bars the government from confiscating all guns. But is it reasonable to suppose that Thomas Jefferson contemplated cop-killer bullets, or rocket launchers in the back yard? Once more, the founding fathers seem to have left us on our own.”

  Gage folded his hands. “As you apparently think they did with respect to laws regulating campaign contributions.”

  Once again, Caroline blessed Clayton Slade for briefing her: she had parried Gage’s first inquiries on abortion and guns—crucial to important sources of money for his prospective campaign—and now, he was moved to be even more direct. “I take it,” Caroline answered, “that you read my opinion on the subject.”

  Gage nodded. “Yes, indeed.”

  “In which I ruled that a limit on donations in Oregon was legal, but expressed no view on what wasn’t before our court— such as the far more comprehensive reform law pending in the Senate. Nor can I now, in simple propriety. Any more than Roger Bannon would have.”

  This veiled irony produced, in Gage, an amiable smile. “Of course not. I was more interested in your philosophical framework.”

  His tone of mild interest belied the sharpness of his gaze. “It’s more or less the same,” Caroline assured him. “The First Amendment protects speech in many forms. Did Jefferson imagine television, endless political campaigns, or million-dollar contributions? Clearly not. Does that mean such contributions aren’t protected by the First Amendment? Not in itself. Like any prudent judge, I’ll wait to see what comes before me.”