The Promise of Stardust (7 page)

I arranged for the use of a conference room off the ICU. At ten past seven, he walked in minus his usual strut, wearing a hand-tailored suit, Italian shoes, and a bead of sweat on his upper lip.

“Have a seat.” I laid the photocopy of Elle's living will before him. “And here's a copy of her hospital admission record from last winter.”

He positioned himself at the head of the wood-grained laminate table and exhaled. “Last winter?”

“We lost a baby in February. He was stillborn.”

Jake stared at me for a moment before he made what I first thought was a lame attempt to sound sympathetic. “Matt. You've been through—”

I cut him off without even looking up. “Elle initialed the box, stating she didn't have an advanced directive. See here?” I pointed at her scrawled letters on the hospital form. For the first time I really looked at her penmanship. I wasn't a handwriting expert, but even I could see how weak she was when she'd put her mark there. She was so out of it that night that she might not have known what she was signing.

Jake shifted in his seat and his eyes weighed me. “You doing okay?”

I glanced at him for a second, nodded, and then averted my gaze. I couldn't cope with another layer of grief even if he was willing to listen.

Respectfully, he moved to the other piece of paper. “Even though this says ‘living will,' it's not exactly. A living will is an isolated set of instructions. It falls under the category of advanced directives, but its scope is narrow, a set of instructions the patient wrote with no margin for unforeseen circumstances. Elle gave a set of instructions, yes, but she also gave your mother her durable power of attorney for health care. So this so-called living will falls under the broader category of an advanced directive. The important thing is that Elle made certain choices for herself, but she also designated someone else to make decisions, which were not covered on the form. That says to the court Elle recognized some circumstances could not be anticipated, and she trusted your mother to act on her behalf. Now, I have to tell you some things you aren't going to want to hear.”

I pulled out a chair and dropped onto it. “You don't think I have a case.”

“You've got a case. A very big case. The thing is you're a private guy, and this
won't
stay private. Reporters have set up camp outside the hospital already, and it will get worse because this could knock the block off
Roe v. Wade
.”

“How? This isn't about abortion.”

“Not to you. To you this is about your wife and your unborn child, something that is highly personal. Legally, though, it is about the rights of an unborn baby versus his mother's, and that will have far-reaching implications. Right to life. Right to die. Rights of the unborn.
Roe v. Wade
. But let's put that aside right now.” He leaned back in his seat and chewed on the inside of his lip.

“In this state,” Jake said. “Probate court hears these matters. There's no jury, only a judge. It's what's called a bench trial. If Elle weren't pregnant, this would be a clear-cut matter of what she expressed in this advanced directive.” He tapped the paper. “It doesn't matter that this document is old as eight-track tapes or that she was single at the time. She made it pretty clear that she didn't want to live if she were terminally ill or in a persistent vegetative state.” He lowered his gaze to the documents before him and ran his manicured fingernails against the grain of his five o'clock shadow. “You said you didn't know about this advanced directive?”

“Not until this morning. But I knew Elle felt that way. Before I found out she's pregnant, I agreed to take her off life support—” My voice broke hard and I buried my face in my hands.

“It's okay.” Jake squeezed my shoulder, waited while I collected myself, and then asked if we could continue.

“In a lot of states, this wouldn't be an issue because pregnancy automatically revokes a woman's advanced directive, but Maine isn't one of those states. As long as she has an AD, it stands.”

I was about to ask which states, momentarily thinking maybe we could move her to another hospital in another state, but that probably wouldn't work. Elle wasn't stable enough. And my mother would fight me.

“Is it your child?” he asked. “I mean, if they tested the DNA?”

“Of course it's mine. Elle wouldn't—”

“That's not what I mean. I need to know that
genetically
it's yours. You didn't have a sperm donor or anything?”

“Why the hell are you asking me this?”

“Answer the question, Matt. Genetically, it's yours?”

“Yes.”

“Good, in case that comes up. In the meantime, I'll need to file papers, which will request the court to adjudicate Elle as incompetent. Here in Maine we use the kinder-gentler term, ‘incapacitated.' Nicer connotation, but it means she's incompetent to act on her own behalf. So, I'll need affidavits from her doctors, explaining her condition.”

I nodded, then he continued on, explaining that he would ask the court to name me as Elle's guardian. However, that did not mean I could make her medical decisions. He pointed at the document labeled as Elle's living will. “Once the judge sees this, he may uphold it.”

“You think my mother has the right to turn off Elle's life support?”

Jake tipped his head side to side as if he were weighing the matter. “We have the hospital records to dispute the validity of the older document, but yes, it's possible the judge will let your mother make medical decisions for Elle.” He drew a deep breath. “Which is why I wanted to make certain the baby is yours. If we need to, we can go at this from an entirely different angle. If the judge rules in your mother's favor, I want to ask the court to give you guardianship of your unborn baby.”

“Okay. That sounds good. What does it involve?” I asked, sitting up straighter.

“It's complicated. You know I've worked on Pro-Life cases?”

I nodded. “My mother will claim this is about Elle's right to die. And I swear to let her go after she delivers, but—”

He interrupted me. “I promise we'll use every legal strategy to make certain your child has a chance to live. Letting Elle go afterward is an entirely different issue, but the most pressing one facing us
right now
is keeping her on life support until the baby is born, correct?”

“Yes,” I said, answering his rhetorical question.

“Let me explain. You see, the court doesn't recognize the human rights of babies before they are born—or it hasn't until recently. And the court will only give guardianship to someone it recognizes
as having
human rights. The unborn don't have a voice. So we have that hurdle, but I have a plan. I convince the judge. He rules in our favor. The ruling establishes a precedent—”

I coughed. “Forget precedents. This is about Elle and the baby.”

“
Your
baby,” he said, almost as if he were questioning the baby's paternity again.

“Yeah,” I said.

“And trust me, saving this child is important to me, too, but setting a precedent by getting the judge to give you guardianship will be important to the Pro-Life movement. That's why this is a much bigger case than you realize. Your only concern is your wife and your child, but the entire Pro-Life movement will come to your aid. Lawyers sympathetic to the cause will offer us any help they can. Write an amicus curiae. Research. Anything.”

“Write a what? Forget it; never mind. Why would the Pro-Life movement care? Elle
isn't
having an abortion.”

A patronizing smirk simmered behind the finger that touched Jake's upper lip. I'd seen that expression on his face many times. He was aiming for a posture of sincerity, and he would have fooled me with it if I hadn't known him since college, if I didn't know the ambition he possessed.

Jake said, “No, but don't you see the parallel? Terminate Elle's life support, and you are terminating a pregnancy, too. Let me see if I can explain this better. The Fourteenth Amendment grants rights to persons. All rights. If the court grants you guardianship of your unborn baby, it makes an unborn baby a person—legally—a person with rights. Those rights will trump
Roe v. Wade
and privacy. If
Roe v. Wade
is overturned any other way, the states will regain the ability to decide the abortion issue, one by one.”

“I reiterate. I don't give a damn!”

He glared and kept talking. “Okay, fine, but if the court gives you guardianship, it will have larger implications. Even if the judge decides against us, we can appeal it. Which will buy time. And if it fails in appeal, we can go all the way up. We can ask for a writ of certiorari.”

“A what?”

“A writ of certiorari, a cert petition. It means we're asking the Supreme Court to review a lower-court decision. If the Court gives you guardianship, the United States government would, in essence, grant a fetus personhood, then all fetuses would have rights as persons. And any action that destroys a fetus would be considered a murder. Abortion would be outlawed
everywhere
.”

“That's a hell of a stretch, and all I want is to give
this
baby a chance,” I said.

“Do you remember the Scott Peterson case?”

“What the hell does any of this have to do with Elle?”

“Bear with me. Do you remember it?”

I leaned back in the chair and glared at Jake. He was like this. He'd go off on something, and in school I'd walk out of the dorm room, but I didn't have that luxury now. “Peterson? The bastard who killed his pregnant wife? Sure,” I said.

“He was convicted of killing both his wife
and
his unborn son. Afterward, Congress passed the Unborn Victims of Violent Crimes Act. It was a huge step forward because it protected the unborn. The authors of the bill were Pro-Life. Unofficially it's called Laci and Connor's Law.”

“Oh, for Christ's sake. Dump the minutiae and get to the point.”

“I am. That law protects the unborn, and it gives us a legal leg.”

I grunted something innocuous, but equating what was happening to Elle in any way with the Scott Peterson case pissed me off. I wanted to stop this circus before the roustabouts started putting up the big top.

“If we go for guardianship of the baby, we will get Pro-Life backing—”

“And if you try to make this about abortion, you'll bring down the opposition of the National Organization of Women, who are probably just as radical as the right-to-lifers. You're going to turn this into a circus.” My mother was a member of NOW. She was, for the most part, a reasonable person, interested in furthering opportunities for women, but there were a couple of hotheads in her chapter, ones who would, given the opportunity, boil abortion-clinic protesters in oil.

Jake sat there resolute, sneering at my mention of NOW. “The Pro-Life movement is a humanitarian effort,” he said. “But let's not debate that one. There's more. Using guardianship is a risky tack. Here's why. There've only been two cases.

“The first one in Florida involved all the hot-button issues: a mentally disabled woman and a rape. The State tried to gain guardianship of the unborn baby. Long story short, the appellate court denied appointing the State guardian on two grounds: one, the State had no standing, which is why I wanted you to assure me Elle's baby is yours, and two, the Florida courts have no statutes, no laws on the books, to give a fetus a guardian.”

“So the woman had an abortion?” I asked.

“Actually, no. The case stalled long enough for the baby to be born. And I'm willing to use the same tactic. I'm a principled man, a man who goes to church on Sunday, a man who holds my faith as my priority, but I'm also a realist, Matt. The State didn't win the battle, but they won the war. The baby lived—” He held up his finger. “One baby, and I'll take saving
your
baby. But the larger issue here is that a ruling that gives you guardianship could save more than a million children every year. I'm very sorry this happened to Elle, but—”

I clenched both my fists. “Don't you
dare
make a martyr out of her!”

He fell silent long enough for me to think he couldn't come up with a rebuttal. Or maybe he knew if he tried I'd kick him out. “Understood,” he said. Then he began rambling on about a Pennsylvania case. “The judge ruled in favor of guardianship, but I don't believe it would have withstood an appeal.”

I got up and paced the small conference room. “So this strategy, asking for guardianship, has a fifty-fifty chance? At best?”

Jake blinked a yes. “But we can do better because, as you said, this
isn't
an abortion case. You're trying to preserve what remains of your family, your child. As a father, you have rights, or at least you will after the baby is born. This is a particularly compelling situation.”

I leaned on the table, palms pressed down. “But my rights don't kick in until after the baby is born unless you can get the world to change and get me guardianship?”