Protect and Defend (15 page)

The complexity of this statement in her own case, Caroline thought, did not preclude its truth. The myth of family was as deep as the need for it—she could read this in the faces before her, solemn and attentive.

“I look forward,” she went on, “to appearing before the Senate, and I should reserve any extended statements for those who bear the responsibility of voting on my nomination.

“Also, like the President, I do not wish to dwell on the obvious—that I’m a woman. We are, I hope, drawing nearer to the time when such a thing is unremarkable.”

Pausing, Caroline gazed out at the grounds which surrounded them. “But when I passed through these gates this morning, I realized that, at the beginning of the
last
century, Ellen Penn and I would have been outside them—picketing for the right to vote.” Glancing at Ellen Penn, Caroline added wryly, “So I think I can speak for the Vice President in saying that we like
this
century a good deal better …”

The audience broke into smiles and applause. We’re launched, Caroline thought, and hoped that her quest would end as well as it had begun.

W
ITHIN MINUTES
of her arrival at court, Sarah’s strategy was in ruins.

She had imagined that the process would work as usual— meeting her opponent at the clerk’s office; conferencing with the judge in his chambers; debating the date and form of a
hearing, with Sarah having the advantage of surprise; securing an agreement to protect Mary Ann Tierney’s privacy and, to the extent possible, her emotions. In Sarah’s mind, her opponent was a harried lawyer from the U.S. Attorney’s office, taking instructions from the Justice Department—which, under the new administration, might not be eager for controversy. The first sign of trouble was when she entered the clerk’s office and encountered not a lawyer but a group.

The government lawyer was what she expected—a man barely older than Sarah, whose purpose was to buy time for his superiors in Washington. But next to him was a graying, somewhat theatrical advocate whose specialty was representing the media in seeking broad public access to judicial proceedings. A few feet away, taut and silent, stood a man and woman whose pain was as stark as their discomfort.

The woman, slender and pale, had the haunted look of a mother who blames herself for the loss of a child. But it was the man who held Sarah’s attention; tall and slender, he had a fine chiseled face, a high forehead, gray hair swept back over his temples, and blue eyes so pale as to seem translucent. Sarah felt both enmity and intimacy: these two people, so different from her in outlook, were the figures of authority— loved and feared—whom Mary Ann Tierney had asked her to defeat. Ignoring the others, she crossed the room to meet them. “I’m Sarah Dash,” she said simply. “I represent Mary Ann.”

Margaret turned away. But Martin Tierney answered, “
We
represent our daughter, Ms. Dash. And our grandchild.” That this was said with civility made the rebuke seem more harsh than anger would have: at once, Sarah knew that little— today, or afterward—would be as she imagined it.

On the nineteenth floor of the federal building, Judge Patrick Leary’s corner office afforded a sweeping panorama of San Francisco, and sufficient room for a sofa, two chairs, a large desk, and a glossy conference table around which the parties sat, with Leary at the head.

“I’ve read Ms. Dash’s papers,” the judge said. “Before we go any further, I’d like to know who everyone is, and what their interest is in these proceedings.”

“I’m Craig Thomas,” the young lawyer answered, “representing
the defendant, Attorney General Barton Cutler, for the purposes of this proceeding only. At any future hearing the Attorney General will be represented by the department in Washington.”

Leary waved a freckled hand, as though to say he expected this. A pale man with graying red hair and a perfunctory manner, the judge was noted for his conceit that there was no problem so complex that he could not grasp it in five minutes— the approximate time, Caroline had once confided to Sarah, that it had taken her to grasp how dangerous this made him. “And you, Efrem,” Leary said to the media lawyer, “to what do we owe the pleasure?”

Efrem Rabinsky smiled with the self-satisfied air of an established courtroom personage. “I represent the Allied Media. Our interest is assuring the broadest dissemination of what promises to be a case of major constitutional importance.”

“And I object,” Sarah said promptly, “to Mr. Rabinsky being here at all.” Tension made her voice higher, her words more rapid. “A fifteen-year-old girl faces a tragic dilemma. She’s pregnant with a defective fetus, she wants an abortion, and her parents oppose her. We filed this case as
Doe v. Cutler
to protect her privacy …”

Leary raised a hand. “We’ll resolve all that later, Ms. Dash. I’m just taking attendance.” Turning to the Tierneys, he said with compassion, “And you, Martin? What role are you seeking?”

Tierney clasped his hands in seeming anguish. “I’m here as a lawyer, as well as a father. Margaret and I are requesting leave to intervene in these proceedings.”

Alarmed, Sarah turned to the judge. “I sympathize with your concerns,” Leary told Martin Tierney. “But according to your daughter’s declaration, Ms. Dash speaks for her.”

“But who speaks for our grandchild?” Tierney asked. “No one.”

“That’s not true,” Sarah said. “The United States Department of Justice represents your point of view.”

Tierney fixed her with his translucent gaze. “Our grandson is not a ‘point of view.’ If he were delivered right now, he could live outside the womb.” Turning to Leary, he said, “Ms. Dash is asking the court to take an innocent life. We’re asking to be appointed
guardians ad litem
to the unborn child, with
the right to act in his defense: to call witnesses, to make argument, and otherwise do everything in our power to save him.”

This was Sarah’s worst fear—a hearing in which her opponent was not the Justice Department, but two people speaking with the authority of parents and the zeal of true believers. “With all respect,” she said to Leary, “a baby with these defects is unlikely to live at all—now or later. The Tierneys can fully express their concerns as witnesses. But as parties, they’re not only unnecessary but—despite their best intentions—will inevitably inflame these proceedings and deepen their own daughter’s trauma. Can you imagine a father cross-examining his child?”

“Who better?” Tierney asked quietly. “By what authority do you speak for, and to, our daughter—to the exclusion of the two people who have loved her since before she was born, and will continue to love her when you’ve vanished from her life? Having pursued the ‘best interests’ of a girl you’ve known for two weeks.

“I’m sure you mean well, Ms. Dash. But the arrogance of those who believe as you do never fails to impress me. And never more than now, when you sit across the table from two parents, and tell them that, in the name of their daughter, you mean to bar them from a proceeding you’ve initiated to secure the death of their grandchild.”

Sarah turned to Leary in protest. “Your Honor …”

Leary held up his hand. “I’ve heard enough, Ms. Dash. This is not a visitation case, and Mary Ann Tierney is, herself, still a child under the law. I’m granting the Tierneys leave to intervene on behalf of the unborn child.”

The swiftness of events jarred Sarah further. “May I ask one thing, Your Honor? I’d like to know from Mr. Tierney
and
Mr. Rabinsky how they came to be here an hour after I gave notice to the Justice Department. Specifically, who informed them of the case?”

“Does it matter?” Leary asked.

“Yes. It suggests that
someone
is trying to make this case as traumatic for my client as they possibly can. I can only hope it’s not the Justice Department.”

The young lawyer looked affronted. “You were asking for a TRO this afternoon. I contacted the Tierneys to testify, if necessary.”

“And whom
did you
contact?” Sarah asked Tierney.

He shook his head. “This is difficult enough, Ms. Dash. Don’t ask me to confide in you who I might have called to help me in what, until your lawsuit, was a private matter within our family.”

Once more, Sarah felt defensive. “I’m wondering how
Mr. Rabinsky
got here.”

“That’s a confidential matter,” Rabinsky answered with his usual assurance. “And it’s completely irrelevant to the media’s right to report on these proceedings.”

Tierney had called a pro-life group, she thought, and they had resolved to escalate the pressure on Mary Ann by bringing in the media. Facing Tierney, she asked, “Do
you
want Mr. Rabinsky here? Is that what’s best for Mary Ann?”

Gazing down at the table, Margaret Tierney shook her head. Glancing at his wife, Tierney said, “No. We’d like these proceedings to be as confidential as possible. For our family’s sake.”

Turning to Judge Leary, she said, “That much we agree on. I’d like strict guidelines for the media—no access to our papers, and testimony from Mary Ann given in chambers rather than open court. And any media who report her name or background should be barred from the courtroom. The same protections we accord a juvenile in
any
proceeding.”

Rabinsky pursed his lips. “This isn’t a case of shoplifting. Of course we agree not to publicize Ms. Tierney’s name. But we want full access to all proceedings, including television …”

“Television?” Sarah said in anger and surprise. “That’s ridiculous.”

“Last month,” he answered smoothly, “the National Judicial Council lifted its ban on television in federal courts. And it’s routinely allowed in major criminal cases.

“This is an issue of far more importance, involving a parent’s right to direct their minor daughter’s reproductive decisions, and the limits, if any, on the right to an abortion established in
Roe v. Wade
.” Turning to Leary, he lowered his voice. “If I may say so, Your Honor, your ruling in this case may well be the most important by a federal district judge in the last ten years. It’s vital that the public fully understand the basis for your ruling. Admitting cameras is now within your discretion.”

Rabinsky was shrewd, Sarah thought. He had appealed to two of Leary’s most salient qualities—his self-image as an incisive judge who ran a model courtroom, and his penchant for excessive courtroom preening.

“I’ll save that for last,” Leary said. “First, I’d like to know what kind of beast we’ve got here.” Spinning on Sarah, he said, “Let me tell you right now, Ms. Dash, I’m not granting you a restraining order today—or at all. You’re asking that I declare this statute unconstitutional on the spot, which amounts to aborting this baby over the counter. No way am I going to do that.”

This much was no surprise. “I understand, Your Honor. But unless we expedite these proceedings, Mary Ann will suffer irreparable harm: emotional trauma, an increased rate of medical complications the longer her pregnancy goes on, and—if we delay too long—a process of hearings and appeals which will force her to have the child regardless of how you rule.”

Martin Tierney seemed to awaken from some depth of sorrow; he seemed shocked at what was happening, and at the wrenching ordeal proposed by Efrem Rabinsky. “There’s a balance,” he said. “I worry for my daughter. But this also involves my grandson. The case against his murder
must
be allowed in full, whatever time it takes.”

“For the record,” Sarah shot back, “your so-called murder is to protect
your
daughter’s physical and emotional health, including the right to bear further children who actually have a cerebral cortex. I refuse to go through the proceeding talking about murder, or treating a girl you claim to love as if she’s a human respirator.”

To her surprise, Martin Tierney winced. Next to him, Margaret Tierney closed her eyes; gently, Tierney rested his fingers, long and delicate, on her wrist. “To us,” he answered, “Mary Ann is hardly a human respirator. Believing strongly that something is right doesn’t lessen its pain. What’s happened has been agony for us, and now it’s come to
this
.

“I think what you’re proposing is judicial murder, even more immoral than the death penalty. But that’s different from believing you a murderer, or callous, or careless. If I’ve suggested otherwise, I apologize.”

This note of grace surprised her. “So do I,” she said. “I
hope we can find a way to keep this civil—and no longer than it need be.”

“Part of that depends on you,” Leary interjected. “You’ve asked for a hearing in ten days on a preliminary
and
permanent injunction. You’ve got it—the case won’t wait. So who are your witnesses?”

“The co-plaintiff,” Sarah answered promptly. “Dr. Flom. Then a psychologist. At least one woman who had a late-term abortion in similar circumstances …”

“Why?”

“To show that the statute would preclude a significant number of minors from having emergency surgery to preserve their health.” Sarah’s voice was emphatic. “I’d also call the mother of a girl who died from an illegal abortion because she was afraid to ask her parents’ consent to a legal one.”

“That’s not the case here,” Leary said testily.

“But it will be for
someone
, and soon. We’re asking that you find the statute invalid as to Mary Ann Tierney or, in the alternative, as to any teenage girl it could affect.” Sarah paused. “Finally, I hope
not
to call Mary Ann. But I may not have a choice.”

“What about you?” Leary said to the government lawyer. “Witnesses?”

“I don’t know yet. That’s up to Washington.”

“Well tell them to figure it out within ten days—they’re the world’s biggest law firm, after all.” Facing Tierney, Leary said, “Maybe you can help the government here.”

Tierney’s brow furrowed. “There are many considerations, Your Honor—including the painful decision as to whether
we
must ask Mary Ann to testify. And I’d like to associate the Christian Commitment: their legal staff has been active in defending the unborn, and has ready access to pertinent witnesses, both expert and lay. According to her papers, Ms. Dash has
pro-choice
groups helping, after all. Even if they won’t appear with her in court.”