Taken aback, Tierney stood taller. “That’s not the question.”
“You never asked yourself that? Did you ever ask my mother?”
The silence, total now, felt stifling to Sarah. “Yes,” Tierney answered. “How can you think otherwise?”
Face ashen, Margaret Tierney closed her eyes. “Maybe you asked her,” Mary Ann responded, “but I watched her.”
Helpless, Sarah had the sudden sense of too many truths being spoken. “I watched her, too.” Tierney answered with the sadness of reminiscence. “When you were born, and in all the years since.”
Mary Ann turned from him, resistance seeping out of her in the shame of having said too much. “I want to have more babies,” she murmured in a plaintive voice. “Please.”
Irresolute, Tierney stood between his daughter and his wife, mirror images of agony. He seemed to weigh his choices, the volatility he risked in speaking further, then said at last, “No further questions.”
After a moment, Leary turned to Sarah. In reluctant tones, he asked, “Anything more, Ms. Dash?”
“No,” Sarah answered. “Nothing.”
THIRTY-THREE
ON THE MORNING Judge Patrick Leary would render his decision, Sarah Dash stood up to make her final argument.
The courtroom was quiet. After the raw emotions of the two prior days, with father pitted against daughter, Leary appeared less crisp, as if the burden of ruling had overtaken his pleasure in presiding. Fresh-faced, Mary Ann Tierney looked apprehensive, yet hopeful, sustained by several hours sleep with the aid of a mild sedative. Both Martin and Margaret Tierney feigned an air of calm, as though pretending—in the sad way of families at odds—that nothing remarkable had happened. But their tension, like Mary Ann’s, showed in their stillness, the inability of parent and child to look at each other. As for Sarah, she tried to ignore the pressures bearing down on her—her doubts about Leary, the invisible audience of millions, the stakes for countless other young women—to focus on drawing the judge into Mary Ann Tierney’s experience.
“This case,” she began, “is about a fifteen-year-old girl who—five months pregnant—finds herself staring at a sonogram.
“On that sonogram is a fetus with an enormous head.
“Almost certainly, it has no brain. And there are only two ways it’s coming out of her—by abortion, or by cesarean section.
“If aborted, the fetus will die. If delivered—almost as surely—the fetus will die. The difference is this: if Mary Ann delivers by cesarean, there is a small but measurable possibility she will never have a child again.”
Listening, Leary looked pinched, unhappy; it struck Sarah that he preferred imagining himself as the parent, rather than the child. Intent, she pressed on.
“All this she’s known for just a minute. But there’s one other thing she’s known for most of her life: that her own birth left the woman comforting her—her own mother— unable to have more children. But though she shares this frightening prospect with her mother, Mary Ann remains silent.”
Sarah turned now, facing Martin Tierney. “She knows her parents’ principles all too well. Never speak of sex. Never speak of birth control. Never, ever speak of abortion. And— because she knows too well what these principles have cost them—never hurt your mother by saying you’re afraid you’ll end up sterile, like her.”
Though Tierney met her eyes, his cheeks were concave hollows, hinting at a steely effort. “But she is afraid,” Sarah told him softly. “So, in desperation, she asks her parents— begs them—for permission to abort. What she gets back is the cold comfort of their principles, and her father’s heartless accusation that she’s ‘selfish.’ And she absorbs the saddest lesson for any child to learn: that to disagree with this mother and father is to go through life alone.”
Tierney looked down, then renewed his emotionless stare at Sarah, who faced the judge again. “Now Mary Ann Tierney has no one. The only refuge she can think of is a women’s clinic; the only reason she knows of it is that her priest is trying to shut it down. And when she goes, she sees him there, and runs away.
“It takes two weeks for her to return. Two weeks to muster the courage it takes for a fifteen-year-old to fight through a crowd of demonstrators who believe as her parents do. Her reward is to discover that—perhaps in those two weeks—she has become the first subject of the Protection of Life Act. That she has lost the right to protect her physical and emotional health. That her only hope is to challenge that law, and these parents, in this court.”
Pausing, Sarah stood taller. “She tries to imagine how hard it will be. That she will face her parents’ anger. That she has to challenge a federal law. That strangers will hate her for it. That others will exploit her. That she will unleash political warfare she can but dimly understand.” Once more, Sarah lowered her voice. “The one thing her lawyer never imagines, and so never thinks to tell her, is that the court from which Mary Ann must seek protection will put her on national television.”
Leary reddened. Quickly, Sarah added, “The court has its reasons, I know. But Mary Ann Tierney is still here, asking for its protection. And I do not think that this court can, any longer, doubt her independence or resolve.
“But if doubt remains, consider what her parents have put her through. On national television, they’ve made their own daughter the whipping girl for every constituency with a point of view.
“The antichoice movement.
“The Christian right.
“The disabled.
“The embittered.”
Sarah’s voice turned sardonic. “Not to mention Mary Ann’s own doctor, and—last and worst—themselves.
“And under what authority do they heap abuse on their fifteen-year-old daughter?” Sarah paused again. “The Protection of Life Act—the purpose of which, they tell us, is to help parents ‘protect’ their daughters.
“Nothing can discredit this statute more completely than the Tierneys’ invocation of it. This law has allowed them to impose their will on their own daughter—at whatever peril to her health—backed by a babel of conflicting voices, with every conceivable agenda except Mary Ann’s well-being.
“All this has happened to Mary Ann Tierney for the most arbitrary reason—who her parents are.” Once more, Sarah glanced at Martin Tierney.
“Or, the Tierneys’ witnesses would say, how very admirable her parents are. So let’s consider all the less ‘admirable’ parents this court will empower if it upholds this law in the name of Martin and Margaret Tierney.
“Fathers who rape their daughters. Or beat them. Or throw them out for becoming pregnant. Or are too alcoholic and dysfunctional to care. Or“—Sarah stopped abruptly—“who will murder their own daughter if she tries to go to court.”
Leary shook his head. “You go too far.”
“I think not,” Sarah shot back. “Congress can legislate all it likes, but no law can create a Norman Rockwell family, or give most teenage girls the courage or resources to protect themselves. This law will create more emotional trauma, more physical abuse, more teenage mothers denied appropriate medical attention. More girls will give birth to their own brothers or sisters. And, yes, more young girls will die.
“And for what? Because forcing a minor to abide by her parents’ orders will make them ‘closer’ as a family?” Sarah inclined her head toward Martin Tierney. “This court has seen for itself the impact on this family. I need not dwell on that.
“So let’s turn to the final justification for this law: that Congress has balanced a woman’s life and health against society’s interest in protecting the potential life she carries, once that life is viable.
“The facts are these: late-term abortions are one out of six thousand. They occur when there is a threat to the mother’s life or health, or when there are severe fetal anomalies. And, in all likelihood, both.
“That, Your Honor, is why Mary Ann Tierney is here.
“One can start by asking whether such a fetus is ‘viable�
�� within any humane meaning of the word, or whether the ‘life’ it ‘enjoys’ on delivery—whether measured in seconds, minutes, hours, or days—is a life as we understand it. But the more basic question is, who decides, and at what cost?
“Congress?
“The Tierneys?
“Or“—Sarah faced Mary Ann, lowering her voice—“the fifteen-year-old who must live with the consequences.”
As Mary Ann gazed resolutely at the judge, Leary looked away. “A young woman,” Sarah told him, “who has shown herself thoroughly capable of weighing that decision, then making it. A young woman who has had to justify herself in court, in front of millions, as no mother—adult or minor— ever has.”
Slowly, Sarah turned to Leary. “A law that denies her right to decide is irrational.
“A law that says a cesarean section is not a risk to physical health is inhumane.
“For either reason—and both—this law violates the right of choice established in Roe v. Wade. As, I submit, does a law which imposes the emotional scars of a break with her parents, the ordeal of a court proceeding, and the risk—perhaps the reality—of a life without children of her own.” Pausing, Sarah spoke with quiet scorn. “For a woman, Your Honor, this involves something more than the inconvenience of altering a prom dress.”
Now Leary was quiescent, eyes focused not on Sarah or Mary Ann, but his notes. Apprehensive, Sarah wondered if this was because he had written his opinion and now—faced with her arguments and Mary Ann herself—felt chastened. She waited until he looked up again, his expression blank and unrevealing.
“This law,” she told him, “is a tragedy in the making. Only this court can end it.”
Sarah drew a breath. “On behalf of Mary Ann Tierney,” she finished, “and every minor girl in America, I ask the court to declare the Protection of Life Act unconstitutional.”
THIRTY-FOUR
“U.S. CONTENT to Watch in Tierney Case,” the New York Times had headlined its article. So Sarah was not surprised when Thomas Fleming told Leary that the government would rest on its carefully constructed brief supporting the statute; citing a “senior adviser to the President,” the Times had reported that the “new administration does not wish to squander any goodwill in this bitter dispute between parent and child, particularly when Judge Masters is certain to be grilled by Senate partisans of both.”
Sarah’s remaining question—who would argue for the fetus—was answered when Barry Saunders stepped forward. “Your Honor,” he began, “Martin Tierney will speak on behalf of his grandson. But, in fairness, someone should speak for the Tierneys.
“To paraphrase Ms. Dash, this case is not about rape, or incest, or parents who are brutal and indifferent. It is not about any of the unseen horrors she would have us believe are commonplace.” He turned, symbolically drawing in the Tierneys with a broad sweep of his hand. “It is about two parents so devoted to their daughter that they have risked her anger to protect her soul. And so—in Ms. Dash’s perverted logic—their act of love becomes yet another reason why no other parents should be allowed to invoke this statute.”
Apprehensive, Sarah glanced at Leary; the argument was shrewdly pitched to his sense of parental prerogatives. Saunders continued with an air of weariness. “Of course Mary Ann is angry. Of course there’s a terrible strain between this young girl and her parents. Because like good parents everywhere, every day, they love her too much to please her.
“How many of us, as parents, have had an angry son or daughter slam a bedroom door in our face? How many of us have endured those terrible words—‘I hate you’—from the person we’d give our life for? How many of us live for the day when our teenager becomes an adult, and a parent, with the wisdom to say, ‘I never understood how much you really loved me’?”
Mary Ann, Sarah noticed, averted her eyes from Margaret Tierney. “As parents,” Saunders continued, “we pray for the gumption to protect our children from themselves, to place their best interests above the transient ease of capitulating to some passing but dangerous desire. We hold fast to the highest duty of parents: to deliver our child to adulthood whole—in mind, in body, and in spirit.
“But never have I seen two parents as brave as these.
“Faced with the scrutiny of millions, and an attack on their motives more cruel and twisted than their worst nightmares could anticipate, their love has endured. And today they express that love in its purest form: ‘No.’
“They do not want to. They wish they didn’t have to. Their deepest wish is to somehow turn back time, to be as they were on Mary Ann’s fifteenth birthday. But that is not their fate as parents—this is. And so they come before the court and say, ‘Help us deliver our daughter to adulthood whole.’”
Stepping back, Saunders stood beside Tierney. “This man and woman know their daughter better than Sarah Dash ever can. If they say that this abortion will damage her more surely than childbirth ever could, believe them. Do not, Your Honor, make these best of parents the basis for depriving other loving parents of their rights.”
They were making her the issue, Sarah saw—the feminist lawyer who had come between the Tierneys and their daughter. But more disturbing to Sarah was the look which passed between Leary and Martin Tierney, the compassion of one father for another.
At the podium, Tierney fished out reading glasses, then fumbled with his notes, nervous gestures that even Sarah found humanizing. Fearful that Saunders’s florid but effective speech had already swayed the judge, she braced for more attacks.
“In my daughter’s name,” Tierney began, “Ms. Dash advances an implicit but chilling goal: abortion at any time, for any reason, if any part of the child remains inside the mother.”
It was so distorted that Sarah had to stifle the urge to protest. “I say ‘Ms. Dash,’” Tierney continued in a voice thick with emotion, “because I cannot believe that this is the considered wish of my fifteen-year-old daughter. More than any impact on the law, she is our deepest concern. But because this arises in the context of law, I first must speak of law.”
With an abruptness that Sarah found unnerving—and, she thought, must have always daunted Mary Ann—Tierney the loving father became the cool and methodical debater. “Under Roe and its progeny,” he continued, “Congress has the power to regulate, and even forbid, the abortion of a viable unborn life. The only restraint on this power is that any restriction not place at risk the mother’s life or health.
“The Protection of Life Act does not narrow the law—it merely codifies it. It allows abortion if there is a ‘substantial risk to the minor’s life or physical health.’ And if her parents do not acknowledge such a risk, a court can authorize abortion on that basis.
“So what is Ms. Dash’s argument? That a risk need not be substantial, or even tangible. That parents have no business meddling in these questions. That any law which provides otherwise violates the right of an adolescent to settle these matters alone.”
With each use of her name, Sarah bridled at Tierney’s pretense that she, not Mary Ann, was petitioning the court. Turning to Sarah, Tierney continued. “As she has so thoroughly brought to light, there is no way to quantify our agony as parents, or our fears for Mary Ann. We know far better than Sarah Dash the pain of infertility. But to make a one or two percent risk of infertility grounds for an abortion means abortion on demand: there will always be some doctor, somewhere, willing to shrug his shoulders and say, ‘One percent? I guess so.’
“But even that loophole,” Tierney continued, “does not satisfy Ms. Dash. To her mind, any statute which does not specify ‘mental health’ as grounds for abortion is not merely unconstitutional—it is cruel.”
Tierney’s voice hardened. “What is cruel, Your Honor, is to sanction this barbaric procedure—this infanticide by dismemberment—any time that a doctor declares that motherhood will damage a minor’s emotional well-being.
“According to whom? Measured by what? One percent?” Tierney’s voice became soft again. “
And while mother and doctor decide his fate, the unborn child awaits their judgment, with no one to protect him.”
Despite her anger, Sarah felt with dismay how skillful Tierney was: by making Sarah the target, then stretching her arguments to their breaking point, he distracted Leary from Mary Ann’s dilemma. “Do I exaggerate?” Tierney asked rhetorically. “Then consider this case.
“The one likelihood Ms. Dash can point to is that our grandson will lack a cerebral cortex, and even that is less than certain. But there is no case, anywhere, which allows us to murder a viable fetus because it may not live.
“Not only God’s laws, but the laws of science, argue against such arrogance.
“Every day, new procedures save the lives and health of fetuses who once were hopeless. Every month, medicine lowers the age at which a premature child can live outside the womb. Every year, the march of science confirms God’s love for the unborn.
“By acting to protect our grandson, we also protect them— and our daughter.” Pausing, Tierney shook his head in sorrow. “If, someday, some young woman must look in the mirror, and wonder how many adoptable babies have been sacrificed on the altar of her ‘mental health,’ we do not want that woman to be Mary Ann.
“She is our daughter, and we know her better than anyone. And Ms. Dash summons in our place a phantom army of rapist fathers, alcoholic mothers, and brutal siblings.”
At this, Leary raised his eyebrows in seeming challenge. Resolute, Tierney told him, “I do not deny these tragedies exist. Nor can Ms. Dash deny the reality of many more loving parents. Do not—I implore you—deny their right to act upon that love at the most critical moment of a daughter’s life.”
Leary’s eyebrows lowered, replaced by his former look of empathy. “Nothing in our daughter’s life,” Tierney finished quietly, “tells us that she can murder our grandson without killing her own soul. And God help her if the doctor’s scissors pierce a normal brain.”
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