So Help Me God

by Larry D. Thompson

  "You're talking about procedures called dilation and evacuation and dilation and extraction, D & E and D & X for short. You're damn sure right that they're likely to upset most anyone if they hear how these are done. The physician takes a forceps and reaches into the uterus. He grabs whatever fetal part he can get hold of and pulls it out past the cervix into the vagina. He eventually pulls that part off. Could be an arm or a leg or something else. Usually, the head is the last part remaining and because it's the biggest part of the fetus, he then sticks something sharp into the uterus and punctures the head, drains out the fluid and pulls the head out. There have even been reports of fetuses around twenty weeks where the arm or leg that was pulled out was actually moving."

  Johnny Bob leaped from his chair, a smile on his face as he thought of a witness describing in vivid detail such a procedure to perform an abortion. "That's it. That's what we need. Jury'll be pissed all to hell with that kind of stuff going on."

  Claudia shook her head as Johnny Bob was talking.

  "What're you shaking your head about? We get the jury good and mad, we're halfway home."

  Claudia rose to face Johnny Bob across the desk. "No doubt that you're right that this kind of abortion gets people's blood to boil. The Supreme Court just ruled a Nebraska statute trying to outlaw the D & X procedure was unconstitutional because it didn't provide an exception for the health of the mother. You never saw more dissents and concurring opinions in your life. They took out the knives and were trying to cut each other to pieces, verbally you understand. But, there's a problem that we can't get around. If you take off your plaintiff lawyer's hat for just a minute, you'll figure it out."

  Johnny Bob was silent as he folded his body back into his chair and twirled around very slowly one time. When he again faced Claudia, he very quietly said, "I understand. Dr. Moyo didn't use a partial birth procedure, did he? This was a first trimester abortion and he used the vacuum extraction."

  "You got it, Johnny Bob," Claudia nodded. The partial birth abortions usually start at about sixteen weeks. I don't see any way that Judge O'Reilly will let you get into the subject. So, I could go on, but, I think I've said enough since we have a first trimester abortion.

  "On second thought, let me make one more comment when it comes to trying to make law. Don't forget that in the eyes of our founding fathers, because I'm black I would not have been considered a person. It took a Civil War and over two hundred years before I could be sitting across the desk from you as an equal."

  Even more recently, the Supreme Court has reinforced its position in a case called Stenberg v. Carhart that dealt with partial birth abortions. There's more, but since we have a probable first trimester abortion here, I'll stop.

  "On second thought, let me make one more comment. Don't forget that in the eyes of our founding fathers, because I'm black I would not have been considered a person. It took a Civil War and over two hundred years before I could be sitting across the desk from you as an equal."

  "Boy, you just said a mouthful. You know your stuff and I'm damn glad you're on my side. So, let's talk about experts. Who do we need to establish that life begins at conception?"

  CHAPTER 50

  Knowing that they were riding on a bullet train with Ruby O'Reilly at the throttle, over the next several weeks the lawyers hastened to schedule their first depositions. Tod had agreed with Jan that he and Wayne would handle the depositions while she searched for experts. They had deposed Lucy, Joanna, Jessie and Lucy's psychologist. Johnny Bob had completed the deposition of Dr. Moyo. The depositions had gone as the lawyers had anticipated with a couple of exceptions. Tod learned from Jessie's testimony that the consortium had funded nearly two million dollars plus expenses to pay Tisdale. No wonder he took the case. Johnny Bob was able to trace Dr. Moyo's steps leading up to the morning of the abortion and learned that he had not slept in over thirty hours. Tod silently groaned when he heard his client admit to that, at the same time wondering why Zeke had not told him about something so important in their numerous meetings. Tod learned from Lucy that she had thrown up the first antibiotic. Whether it would have changed the outcome was uncertain, but it became an issue in the case.

  ***

  When T. J. realized that the trial was imminent, he asked the guards to arrange a visit with his lawyers. Claudia showed up alone. They met in a small room reserved for attorney-client conferences, furnished with a metal table and two metal chairs. He rose as she entered.

  "Welcome to my humble castle, Counselor. I'm sorry that I cannot offer you caviar and champagne, but it seems that my wait staff is off for the week and the cupboard is bare."

  "Well, T. J., I'm pleased that you haven't lost your sense of humor in all of this," Claudia replied.

  "Actually, Claudia, I would much prefer being in the thick of things. However, I'm forced to observe the action from this proverbial seat in the bleachers. Perhaps, I can get into the game in the late innings. Maybe even save the day."

  "T. J., does that mean that you're thinking of testifying at trial?"

  "Thinking about it would be the proper phrase, I believe. Actually, I'm still waiting on word from my Father as to how best to serve Him in this whole matter. I promise that you will be among the first to know of our decision. Now, if you would, please tell me what's going on and how the lawsuit is progressing. By the way, let me commend you on your decision to put the pro-life debate on trial. It will certainly serve to generate even more attention to our cause. I feel certain that we can convince twelve people that life begins at conception."

  Claudia opened her briefcase and pulled out a legal pad as she began to brief T. J. on the status of the case. "Johnny Bob gave me the assignment of lining up our experts. I had forty-five days to get it done. We're still about ten days out from having to list them and provide reports. I'm close to being finished. Since you're interested in the abortion debate witnesses, let me skip over the malpractice experts. Just take my word for it that they'll be strong. T. J., these pro-life experts are going to blow them away. I'm not going to bore you with the details, but I've got a Nobel Prize nominated geneticist, an embryologist, a fertility specialist, and a theology/philosophy professor, all of whom can conclusively prove that life begins at conception. All of these experts have written and lectured widely on the subject. They know their stuff, and I've got more on the way. Tod thought that he had thrown us a curve when he added this defamation issue to the case. Well, just watch him call time-out when he sees our array of experts to prove that you spoke the truth. Our only problem will be deciding which ones to actually call. Johnny Bob is pretty certain that Judge O'Reilly won't let us parade all of them to the stand. He thinks we'll probably have to go with our best two or three. We can make that decision as we get closer to trial."

  "Claudia, I couldn't be more pleased," T. J. remarked with obvious pleasure. "Get me copies of their reports as soon as they're done. I'll be most interested in their final opinions. And it just might be that I'll have to join such an illustrious line-up. Looks to me like you could use a good clean-up hitter, one, of course, who is capable of knocking the ball not only over the center field wall, but out of the park."

  As she got up to leave, Claudia replied, "Well, T. J., if that hitter decides to get off the bench and get into the game, you be sure to let me know."

  CHAPTER 51

  It wasn't long after Judge O'Reilly told the lawyers that they had four months to get the train to the station that Johnny Bob moved his whole crew to Houston. Leaving behind associates, secretaries and paralegals to keep his other cases moving, he took five loft apartments about three blocks from the courthouse. He and Bernice, who was delighted to spend a few months in Houston, occupied a large two bedroom loft, with one bedroom reserved for his office. Claudia moved into a one-bedroom large enough to give her sufficient workspace. Sara and Mildred shared a two bedroom condo, which became the base of operations since it contained the largest living area, sufficient to provide room for two computers, tw
o printers, a fax, a copy machine and several file cabinets. Another two bedroom condo was reserved for out-of-town witnesses. Johnny Bob set aside one for T. J., just in case.

  On the evening before they were to designate experts, Johnny Bob and Claudia sat in his apartment while Bernice prepared green beans, a salad and a tuna casserole. Johnny Bob sipped on a tall scotch and water while Claudia did the same with a glass of Chardonnay.

  "Claudia St. John Jackson, you've done us proud. I've never seen such an imposing array of experts in such a wide variety of disciplines, all to confirm what we all know, that life begins at conception. I might also add that I am most impressed with our expert on obstetrics, and my old boy from Fort Worth seems to have come through for us on the emotional scars that our client will suffer for the remainder of her days. Looks to me like we've got our case pretty well in hand. I need to depose a couple more of the clinic's fact witnesses. Tod has already told me that he wants the deposition of Walter McDade, the Director of Executives for Life. Then he has a few weeks to counter what we have done. Do you think he sees it coming?"

  Claudia took a sip of Chardonnay before replying, "Johnny Bob, one thing I've learned in this case is not to underestimate our opposition. Tod's as good a lawyer as I've run across in my brief career. If he wanted to do a series of lectures as a visiting professor at Harvard, I'd be the first to recommend him. On the other hand, do I think that he has anticipated what is coming? I'd have to say 'no.' He first treated this as a malpractice case and then came up with the idea to add defamation as a counterclaim, a brilliant move, I might add. As good a lawyer as he is, Tod's not as attuned to the abortion controversy as I am. He's going to assume that, particularly with an abortion of a twelve-week fetus, there's not even an issue. He's going to think that life begins at birth, or at the earliest, viability. I'll bet you a thousand dollars that it never occurred to him that we might try to defend his slander case by convincing a jury that life begins at conception. I'd like to be a fly on the wall when he reads our expert reports tomorrow."

  "Well, then," Johnny Bob spoke as he rose from his chair, "I propose a toast. Bernice, hon, come in here and bring your glass." After Bernice rounded the corner from the small kitchen area, wearing her newest Chanel outfit from Neiman Marcus, Claudia rose, drink in hand. "Here's to the confusion of our enemies and the lives of the babies that we are about to save."

  "Hear, hear!" Bernice exclaimed.

  "Amen," said Claudia and then followed it with a question. "I know we're under a gag order. We're also getting close to trial. Do you think that I might leak a copy of this list of experts and their reports to one of my friends in the media? We've got a lot of attention already. When the media learns what's going to be tried in this case, we're going to need the Astrodome to hold the crowds. They might as well start lining up."

  "Claudia, my dear, you know what the judge said. On the other hand, as I recall most reporters are not prone to revealing their sources. If one of them has our list of experts slipped under the door in the dark of night, I presume that he would rather join T. J. than reveal the source. If you do any such thing, just hope that Ruby doesn't make a big issue out of it. She could put us on the stand, you know. But, my guess is that there are bigger issues filling her little red head, and this one probably won't even show up on her radar screen. By the way, if you do it, don't tell me. One of us has to be around to try the case."

  "I read you, Johnny Bob."

  ***

  Tod found the designation of experts on his desk when he returned to the fire station after assisting one of his partners at a hearing for a major client, a rare appearance for Tod on anything other than the Brady matter. The designation was required to name each expert, his or her field of expertise, and a short statement of expected testimony. It included a report and curriculum vitae from each expert. After getting a cup of coffee, he propped his feet up on the corner of his desk and leaned back to learn about the opposition's experts, next to the parties themselves usually the key witnesses in the case. As Tod read down the list, the first experts were routine. He expected to see an obstetrician, a psychologist and doctors from Hermann. When he got to the third page, his eyes widened. He kicked his feet off the desk and gulped at the cup of coffee. What the holy shit is this? A geneticist, an embryologist, a fertility specialist, a theologian/philosopher, the obstetrician listed again but this time as an expert in reading of fetal ultrasounds, a professor of fetal physiology, a professor of neurology and pediatrics, a neonatologist and even Reverend Thomas Jeremiah Luther. As to their expected testimony, it was listed as "when life begins."

  "Grace," he hollered out the door, "call Jan and get her over here and tell Wayne I need him now." As he waited for Wayne, he stared out the window and pondered. What's going on here? Johnny Bob files a malpractice case and I answer for Dr. Moyo. Then I sue T. J. and all of his buddies, claiming slander. I've proved that the words were spoken. Hell, I have him on videotape. I still have to tie in the organizations and have Walter McDade scheduled for deposition at the end of the week. Aunt Jessie has already given us a road map for his deposition. There's no doubt that calling Zeke a murderer and baby killer is defamatory and his practice has gone to hell.

  Then it hit him. The only defense left is "truth." They're going to try to prove what T. J. said is true, and the way they are going to do it is to prove that life begins at some time long before the child is born.

  "Son of a bitch!"

  The words escaped from Tod's mouth as he flipped to the expert reports. The first was from the geneticist, who had an outstanding pedigree: Harvard, work on the human genome project, nomination for a Nobel Prize. Skipping through three pages of detail, Tod got to the three-sentence summary that concluded that human life began at the moment of conception. Next was the philosopher/theologian. What the hell can a philosopher have to say that is relevant to when life begins? Again, he skipped to the end. According to the expert, it has now been established that ensoulment takes place at the moment of conception. What kind of Looney Tunes is this? How could anyone possibly be certain of this kind of stuff? The rest of the reports all reached similar conclusions. Only T. J.'s was a little different. His report proclaimed that life began at conception because his Father told him it was so.

  "Objection, Your Honor! Hearsay!"

  "Sorry, boss. I got hung up on the phone. Why are you yelling a hearsay objection out the window?" Wayne asked as he strolled into the room.

  "Hey, Wayne. Didn't realize I was talking out loud. You won't believe this shit. Take it down to your office and read it. Might as well get Grace to make a couple of copies. No, make it four or five. Soon as Jan gets here, we'll talk."

  Wayne took the papers from Tod's hand and left without a word, eager to see what had his boss so agitated. Less than thirty minutes later Jan appeared at his office door. Knowing that she did not need to be announced, she just said hello to the receptionist and walked up the stairs where she found Tod still staring off into space, trying to figure out his next move.

  "If I had a camera, I'd take a picture of you. With that puzzled look on your face, it would make a great Christmas present for your boys. They could put it on the refrigerator and look at it every time they get stumped on a homework assignment. Are you ready for me?"

  Tod's mind returned to the present as he answered, "Jan, damn right I'm ready for you. Have you seen the experts?"

  "Of course. I read the reports as soon as they hit my office this morning. I called over here and found that you were in court. Figured that I'd hear from you as soon as you got back."

  Wayne had heard them talking and walked down the hall to Tod's office.

  "Here, you and Wayne have a seat. Grace, get Jan some coffee."

  They all sat at the table by the window and Tod continued, "So, what do you think? I've been practicing nearly twenty-five years and never saw so many different experts. How can anyone prove when life begins? You ever heard this term 'ensoulment'?"

  "Tod
, settle down. I've been down this road, at least part way, a couple of times," Jan interjected.

  "Jan, don't we live in a state that says that a fetus really has no rights until a live birth?"

  "Tod, I can answer that one," Wayne spoke up. "I checked the penal code before Jan got here. Murder in this state is causing the death of an 'individual.' Individual is defined as a human being who has been born and is alive. So, I don't see how Dr. Moyo can be rightfully accused of murder."

  "Wayne's right," Jan stepped in, "as far as he goes. The problem, though, is that we are dealing with a civil case, not criminal. Nobody is accusing our clients of violating the Criminal Code. We're in the civil courthouse and the Civil Practice and Remedies Code provides a cause of action for an injury that causes an individual's death. Problem here is that 'individual' is not defined on the civil side and you know as well as I do that it's not likely that the Texas Supreme Court is going to look to the penal code for a definition in a civil case. As far as I can tell, it's an open question. Texas doesn't currently recognize a cause of action for the wrongful death of a fetus, but we're coming closer every time the Supremes have a chance to evaluate the issue. We're currently in the minority among the various states. At last count, approximately thirty-six states and the District of Columbia permit a claim for the death of a viable fetus. Remember that word, 'viable', and we'll come back to it later. Also, you and I know that we have a Texas Supreme Court that is all Republican and very conservative. If they want to be re-elected, they may have their papers graded by the Christian conservatives. They may flunk the test if they have the opportunity to recognize the life of a fetus and fail to do so. Don't forget that the Republican winds are blowing from the right these days, and they're approaching hurricane force. Well, maybe only tropical storm speed. You get the idea."

  "So you're saying that they have a shot at putting on this testimony and proving that T. J. was telling the truth when he called our clients murderers?"