Protect and Defend

by Richard North Patterson

  Tierney still spoke softly. “Are these problems enhanced by genetic testing for pregnant women?”

  “Yes, in ways that I find frightening.” Lasch glanced at Leary with a spasmodic twist of the neck. “Genetic testing grows ever more sophisticated. Today, a mother can abort this child for hydrocephalus—or because she prefers a girl.

  “Tomorrow, she can abort a child for being blond, or because it’s tone-deaf, and can’t share the mother’s love for Mozart …” Lasch coughed, his body racking with tremors. “I apologize, Your Honor. My question is this—how can we let the mother select between desirable or undesirable traits, or ‘bad’ or ‘less bad’? And do we want a world of designer babies?”

  Once more, Leary’s eyebrows, raised quizzically, seemed to signal agreement. “You’ve spoken of the mother,” Tierney said. “What, in your view, is the obligation of a doctor?”

  Lasch turned to him, a jerking of the head. “The medical profession,” he answered, “has failed miserably to live up to their most basic oath—to save lives.”

  The effort of testifying, Sarah noticed, seemed to wear Lasch down—his tone was thinner and, for the first time, held a trace of bitterness. Sarah stifled all sympathy: within the ruthless confines of a trial, a tired, angry witness—disabled or not—served her purposes. “Many doctors,” Lasch added harshly, “encourage abortion for any and all anomalies.

  “Take Down’s syndrome. A typical piece of ‘medical advice’ is, ‘What are you going to say to people who ask how you can bring such a child into the world?’

  “They don’t give credit to all the ways in which parents and siblings welcome and are nurtured by loving a Down’s child, or all the love and joy that child—being loved—returns to them.” The anger in his voice faded, replaced by sadness and the strain of speaking. “We’ve all known such a child. Thanks to the callousness of doctors, there are too many others we will never know. To me, that’s more than a crime against the child—it’s a tragedy for us all.”

  Like the best of witnesses, Sarah thought, Lasch had modified his tone, remembering that sorrow, not outrage, helped him cast his intended spell. “Unlike you, Professor, I’m not a religious man—I am, at best, agnostic. But I see so many paradoxes here. In my state, a woman hit by a car on the way to an abortion clinic can sue for the death of a fetus. Yet if she reaches her destination and aborts it, the fetus has no status at all …”

  Lasch swallowed, then went on. “That’s why so many advocates of abortion oppose laws to protect the fetus from the horrible consequences of the mother’s drug addiction, by charging her with child endangerment—because those laws suggest that a fetus is something more than the mother’s property, to be treated as she wishes. Which is the unspoken premise Ms. Dash is urging on this court—that a disabled baby is a tumor to be excised, with less dignity and fewer rights than a slave before the Civil War.”

  With great effort, Sarah restrained herself from objecting, watching Lasch with the cold eye of a cross-examiner. Martin Tierney’s questions were gentler yet, as though he were pained by Lasch’s testimony and how it must tire him. “How do you relate these concerns,” Tierney asked, “to the life or death of my grandson?”

  Lasch slowly shook his head, his gaunt face and close-cropped hair enhancing the sorrowful appearance of a spiritual man confronting evil. “Must your grandson die, I ask, because he may be born disabled?

  “To me, the most persuasive argument is not the existence of a Matthew Brown. It lies in the case of the boy they now call ‘Miracle Kid.’

  “As one writer described it, he was born with a face like a child’s unfinished drawing—only one, unnaturally small eye; the other side of his face blank; his nostrils separated by a deep cleft; no fingers. When the doctor presented him to his mother, she said, ‘I don’t know what this is.’”

  Lasch inhaled, as if straining for the resources to continue. “What ‘this’ was,” Lasch said after a time, “was a baby with a rare disease called Fraser’s syndrome. He also had only one kidney, severe hearing loss, and an impaired nerve pathway between the right and left side of the brain. Most nurses refused to have anything to do with him.

  “His parents could have let him die. Instead they fought for him through countless operations.” Pausing, Lasch addressed the courtroom. “The boy is in school now. He has a first-class mind, a sense of humor, and close friends. Because he exists, people have learned to look past what seems strange about him, to see what is so wonderful. And what is most wonderful is rare and precious in anyone, let alone a child—he’s enriched the understanding, and deepened the humanity, of everyone who knows him.”

  It was a moving story, enhanced by Lasch’s struggle simply to tell it. Sarah was not immune to this; nor, plainly, was Mary Ann—to whom Bruno Lasch now spoke.

  “The sacrifice those parents made,” he told her gently, “was heroic. But the child’s death would have been as great a tragedy—perhaps greater—than the death of a Matthew Brown.

  “If the hydrocephalus has impaired the development of his brain, Mary Ann, your child will likely die at birth, or shortly after. You’ll never be called on to make those kinds of sacrifices. But if he is to die, let it be at God’s hands, not yours. Give him every chance you can …”

  Lasch coughed again, followed by a panting wheeze which brought tears to his eyes. “I know how hard this is,” he said with renewed effort. “I know how hard it would be to have a child who dies. But we’re very close to eugenics here, with terrible implications for the world all children may grow up in. What your parents are doing is an act of love, for you and for your child. In the end, I hope you’ll love them more for doing it.”

  At that, Martin Tierney turned to his daughter with a look of love and pleading. “No further questions,” he murmured.

  Mary Ann stared at the table; Sarah at her notes, the bare bones of cross-examination.

  TWENTY-ONE

  FACING BRUNO LASCH, Sarah called on her reserves of memory—the accumulation of two nights spent, in the week before the trial, reading Lasch’s papers on abortion and genetic testing.

  “I’m curious about something,” she began. “Do you think that a teenage girl who’s been raped by her own father has the right to an abortion?”

  From his wheelchair, Lasch studied her with caution. “Yes,” he answered, “under most circumstances.”

  “Then let me give you a specific example. Suppose the girl takes a home pregnancy test, finds out that she’s pregnant, and goes to an abortion clinic. Do you think she has that right?”

  Lasch hesitated. “Yes.”

  “Let’s take the same girl—except now she’s pregnant by her boyfriend. Does she still have the right to an abortion?”

  At the defense table, Martin Tierney stirred, watching Sarah intently. Swallowing, Lasch murmured, “Yes.”

  Sarah backed away a little; with this witness—stunted, and confined to a wheelchair—to hover would look like bullying.

  “Okay. Take the same basic facts—home pregnancy test, positive result, abortion. Except that the woman’s forty, married, the mother of six, and doesn’t think her family can support a seventh child. Is she morally entitled to abort the fetus?”

  Lasch’s eyes glinted. “It appears you’ve read my work, Ms. Dash. If so, you’ll know that I’ve written that abortion to preserve a struggling family is not per se immoral.”

  “So, again, your answer is yes? On economic grounds?”

  Curtly, Lasch nodded. “It is.”

  “Then—unlike Professor Tierney—you’re not morally opposed to all abortion.”

  Lasch twisted in his chair, as though to minimize his discomfort. “To me,” he said quietly, “abortion is always unfortunate. But it goes too far to say that it’s always immoral.”

  From the bench, Leary eyed the witness with new perplexity. “In your direct testimony,” Sarah said, “you gave us the example of Martha’s Vineyard in the nineteenth century, where deafness was common. Are
you aware that the principal cause was incest?”

  Lasch blinked. “One of the causes,” he amended.

  Sarah kept her tone quiet, dispassionate. “And you believe that the victim of incest has the right to an abortion.”

  Lasch pulled himself straighter, staring into Sarah’s eyes. More sharply, he answered, “What I said, Ms. Dash, was under most circumstances.”

  “So tell me when she doesn’t.”

  Lasch swallowed. In a thin voice, he answered, “I can’t give you a litany of examples, Ms. Dash. But motivation is important.”

  Watching, Martin Tierney was taut now. “Then let’s go back,” she told Lasch, “to the teenage girl raped by her own father. Same home pregnancy test, same positive result. Except this time—just to make sure—she goes to a doctor to confirm she’s pregnant. That doesn’t affect her moral right to an abortion, does it?”

  Lasch grimaced. “No.”

  “Okay. Now let’s toss in one more fact.” Pausing, Sarah spoke more softly yet. “Through a breakthrough in testing, the doctor predicts that the fetus—the product of rape and incest—is hydrocephalic. Can she abort the child then, Dr. Lasch?”

  Sarah saw Martin Tierney rise to object, then realize how pointless this would be. Swallowing, Lasch choked, gazing up at Sarah with a look of trapped resentment. His voice faltered. “As I said … motivation is important.”

  “Suppose the testing came out ‘normal.’ In your moral universe, is a victim of rape and incest entitled to abort a fetus with no disabilities whatsoever?”

  Pride seemed to stiffen Lasch’s body and brighten his eyes. “Yes,” he said harshly. “I’ve told you that.”

  “So she can abort a fetus on account of incest?”

  “Yes.”

  “Or economic hardship?”

  “Yes.”

  “Or because she’s a teenager and single?”

  “Yes.”

  “Or just because she’s pregnant, and doesn’t want to be?”

  Lasch twisted his head, jaw tightening. “Yes.”

  “For all those reasons,” Sarah said in a soft, remorseless voice, “or no reason at all. But only as long as she believes the fetus is normal.”

  The resentment in Lasch’s eyes, Sarah supposed, reflected a lifetime of pain, of struggle, of believing—often with justice—that the world of the “normal” looked on him with scorn. “What I believe,” he said with palpable anger, “is that abortion should not be used to murder the disabled …”

  “In other words, the only unwanted children women should be compelled to have are those with disabilities?”

  “No,” Lasch snapped. “They shouldn’t use abortion to weed them out.”

  “So a woman can have any abortion for no reason, but not the wrong reason.”

  “You’re twisting my words, Ms. Dash. But, in essence— yes.”

  “Isn’t the only way to ensure that, Dr. Lasch, to outlaw genetic testing? And, for that matter, sonograms?”

  “That’s not my position …”

  “But if Mary Ann Tierney never had a sonogram, she wouldn’t know she had a hydrocephalic fetus—true? She’d just have the child, and maybe never have another.”

  Wincing, Lasch crossed his stunted arms. “Genetic testing,” he answered, “has humane uses. For example, it can help a mother face the fact of a disabled child.”

  “The inevitable fact, in your universe. Because once she knows, she’s not allowed to abort the child, correct?”

  Lasch’s eyelids twitched; once more, he looked painfully weary. “What I believe,” he said in a parched voice, “is that selective abortions of the disabled are morally wrong, and socially dangerous.”

  “And, therefore, that they should be illegal?”

  “Yes. Unless the life of the mother is actually at risk.”

  “So you don’t agree with the Protection of Life Act, do you? Because it gives parents the right, on medical grounds, to approve the late-term abortion of a potentially disabled fetus.”

  “I’m concerned about that aspect, yes.”

  “In fact, you believe that no parent should have the authority to consent to an abortion because of fetal anomalies?”

  “Not if that’s the reason.”

  “And you also don’t distinguish between the moral wrong of aborting a fetus with blue eyes, and aborting one with multiple, painful, and hopeless disabilities.”

  “What I said …” Lasch coughed, head lolling helplessly. “What I said,” he persisted, “is that one may lead to the other. And that both are morally wrong.”

  “And yet you believe that abortion for economic reasons might be justified.”

  “In some cases, yes.”

  “But not where the economic reasons are the staggering expense to a family—with all the strains on marriage and child-raising—of dealing with a severely disabled child?”

  The witness hesitated, wincing at a tremor which caused his body to shudder. Seeing this, Sarah allowed herself a moment of compassion: like anyone, Lasch’s beliefs were shaped by his emotions, and thus were flawed by them. But his emotions were bone deep, and to be confronted so publicly could only increase his physical and moral anguish. “I’m not saying they’re never justified,” he said at last. “Our country, including the pro-life movement, has failed to help families support and nurture the disabled—or to provide a caring surrogate if all else fails. For a specific family the financial burden may be overwhelming.”

  “And who’s the judge of that, Dr. Lasch? The mother—or you?”

  “Your Honor,” Martin Tierney interjected. “This is the harassment of a witness—who finds the very fact of testimony a challenge to his endurance—by means of hypothetical questions which don’t concern our daughter or our grandson. As a tactic, it’s deeply unfair to Dr. Lasch …”

  “And deeply embarrassing to you,” Sarah retorted, turning to Leary. “Mr. Tierney hoped to enlist the disabled, and their genuine moral concerns, to help him compel Mary Ann to carry this fetus to term. But he overlooked problems with enforcing those concerns, as well as the latent inconsistencies in Dr. Lasch’s worldview. And now he doesn’t want them exposed.”

  Leary nodded. “You may respond, Dr. Lasch.”

  Lasch faced Sarah again. “No, Ms. Dash, I’m not the sole arbiter here. It’s up to society to frame the standards.”

  “But you can’t tell me what those standards are. Or who within this society should frame them.”

  Lasch stared at her. “That’s up to the legislature. With appropriate guidance.”

  From whom? Sarah wanted to ask. But it was better to move on. “In the absence of ‘guidance,’ Dr. Lasch, isn’t the only way for a woman to escape your moral—and possibly legal—judgment to avoid sonograms and genetic testing like the plague? Because if she knows her fetus is disabled, her motives for an abortion are suspect, regardless of what other reasons she may have.”

  “I don’t think that’s a fair interpretation of my position.”

  “Isn’t it?” Walking back to the table, Sarah gazed down at her notes. “Yet you commenced your direct testimony by saying that, quote, ‘It seems clear that the principal basis for your daughter’s lawsuit is not the extremely marginal threat to her reproductive capacity, but the “unacceptable nature” of her child.’ Clear to whom, Dr. Lasch?”

  Again, Lasch licked his lips. “Clear,” he parried, “from the circumstances—”

  “To whom,” Sarah snapped.

  Lasch hesitated. “To me.”

  Sarah glanced down at Mary Ann, and was touched by the gratitude she saw. Placing a hand on the girl’s shoulder, Sarah faced Lasch again. “Clear to you,” she repeated. “But you’ve never even met Mary Ann Tierney, have you?”

  “No.”

  “So you’ve never asked her what her motives are.”

  “No.”

  “But what you do know is that her fetus is hydrocephalic.”

  “Yes. And that its threat to reproduction is, as I stat
ed, ‘marginal.’”

  “Marginal to whom?” Sarah asked with quiet anger. “You, again?”

  “No. To her doctor.”

  “All right, Dr. Lasch. I won’t bother asking you to wonder whether the risk of hysterectomy or secondary infertility would seem quite so marginal if you were Mary Ann. But we’re not talking about a baby with blue eyes, are we?”

  “Of course not.”

  “Or a Down’s syndrome child.”

  “No.”

  “Or even a child with Fraser’s syndrome, like ‘Miracle Kid.’”

  “No.”

  “We’re talking about Mary Ann Tierney’s prospective child—who, according to her doctor, will almost certainly never have a brain. And who, as you yourself assert, will quite likely die at birth.”

  A flush stained Lasch’s hollow cheeks. “Yes,” he answered grudgingly.

  Sarah remained where she was, beside Mary Ann. “And yet you assert that Mary Ann has no moral right to weigh that child’s chance of living against her hope of bearing future children.”

  Lasch’s jaw tightened. “Where her life is not at risk? No, she doesn’t.”

  “But not—in your view—because the baby might be ‘normal’?”

  “No.”

  “No,” Sarah repeated. “You believe she has no moral right because her fetus likely has no brain. That’s not the choice your parents faced, is it?”

  Lasch grimaced, looking down. His answer, “No,” was barely audible.

  “Nor were you a threat to your mother’s fertility—correct?”

  “Correct.”

  “And when you were born, she was thirty-eight years old.”

  For a moment, Lasch was silent; Sarah watched him process the fact that she had researched not just his writings, but his life. In the same near-whisper, he answered, “Yes.”

  “Before that, your parents were childless.”

  Plainly surprised, Lasch hesitated. “That’s true.”

  “Though they had tried for years to have children.”