Protect and Defend (38 page)

“In my opinion,” Gersten went on, “there’s no way that Mary Ann would be here without the encouragement of Sarah Dash. It’s like a crush.

“Ms. Dash is a twenty-nine-year-old woman who’s obviously gifted and, one might say, ruthlessly determined. And of particular appeal to Mary Ann, Sarah Dash—at least by outward appearance—seems utterly indifferent to the dislike or disapproval of those who disagree with her.”

Retrieving her pen, Sarah felt her fist close around it; the characteristics Gersten described, those of a trial lawyer, applied equally to Martin Tierney. But Tierney was using Gersten to suggest that Sarah had hijacked Mary Ann, ideologically
and
emotionally, and the impact could be devastating. From the bench, Leary gazed at the witness with keen interest.

“But Mary Ann,” Gersten was saying, “is
not
Sarah Dash. The same things that make Ms. Dash such an attractive surrogate in Mary Ann’s war with
you
make imitating her not only foolish, but dangerous.

“
And
hopeless. When this case is over, Mary Ann will be who she was before—a young girl who believes that a fetus is a life. Taking that life could damage her immensely.”

Furiously, Sarah began scribbling notes. “The Protection of Life Act,” Gersten told Martin Tierney, “gives you the chance to stop this. I commend your courage in trying.”

“Not a good afternoon,” Kerry Kilcannon remarked to Clayton and Lara, “for Judge Caroline Masters’s ex–law clerk.”

Clayton was there to brief him on the Masters nomination; Lara for cocktails and dinner. Now that both had entered his study, Kerry clicked off the television.

“Or for us,” Clayton rejoined. “If this case goes all the way, Caroline’s the swing vote, and everybody knows it.”

In Kerry’s mind, Lara’s glance of amusement at Clayton
held an edge his Chief of Staff must surely feel. Less pragmatic, Lara was also far more pro-choice; Clayton, though he wished them happiness, was adjusting to a woman whose closeness to Kerry not even he could match. “Where’s Caroline now?” Kerry asked.

“Back in San Francisco, being a working judge.” Clayton glanced at Lara, careful to include her. “By all accounts, her grand tour of the Senate went as well as possible. But Gage is clearly lying in the weeds.”

Nodding, Kerry finished his thought. “Because unless Chad pushes this through committee, the Tierney case may get to Caroline’s court before
she
gets
here
.”

Clayton sipped his scotch. “Not much worry there,” he answered. “Any appeal goes to a motions panel run by a clone of Roger Bannon. And even if he assigns it out, and against all odds gets Caroline on the panel, she’s got a good excuse for recusing herself—that Dash used to be her law clerk.”

With this, Kerry sat down on the couch; Lara sat next to him, Clayton in the chair across. “Speaking of ‘lying in the weeds,’” Lara observed, “your Justice Department lawyer at the Tierney trial isn’t saying a word. Is he catatonic?”

“It’s the drugs,” Kerry answered with a smile. “Each morning, our emissary from the CIA slips quaaludes into his coffee—”

“The last thing a new administration needs,” Clayton interjected for Lara’s benefit, “is a fight over the Protection of Life Act. It would give Gage ammunition to take us down, and put our entire legislative program at risk.”

“I’m dimly aware of that,” Lara answered wryly, “and I don’t want Macdonald Gage picking on my sweetheart. I was just curious about how you two moral leaders think this trial
should
come out.”

“I was curious, too,” Clayton said with equal dryness. “So I asked our pollster to whistle up some numbers. I thought it might be useful in steering Caroline through the process.”

This, though a surprise to Kerry, was typical of his cautious friend. “What came back?” he asked. “A landslide?”

“About what you’d expect,” Clayton answered with a shrug. “Sixty-one percent for the parents, and thirty-nine for the daughter.”

“That’s closer than I’d have thought,” Lara observed. “Maybe this trial is making people think.”

Clayton turned to Kerry, as though gauging his subtle chemistry with Lara. Smiling faintly, Kerry told her, “It’s even making
me
think a little. Whenever I can find the time.”

A
NGER WAS
not an emotion Sarah enjoyed feeling, but it had its uses. Facing Dr. David Gersten, she no longer felt tired.

“Don’t worry,” she said quietly. “I won’t come any closer. I don’t want to seem too ruthless.”

Gersten summoned a tentative smile, which Sarah did not return. “Or was it ‘ruthlessly determined’?” she asked.

His smile vanished. “All I said, Ms. Dash, is that you seemed that way.”

Sarah cocked her head. “Have we ever met?”

“No.”

“So you don’t claim any insights into my dark nights of the soul. Or, for that matter, my upbringing.”

Gersten pursed his lips. “I was talking about what you model for Mary Ann Tierney—independence and autonomy.”

“Would you agree, Dr. Gersten, that becoming ‘independent’ and ‘autonomous’ is a developmental process?”

“Definitely.”

“And that this process begins in childhood?”

“Begins? Yes.”

“So you’re not suggesting that I magically became what I
seem
to you at sixteen, or twenty-two, or last year.”

Gersten touched his chin. “No. That involves, as I said, a process.”

“And that process includes fifteen-year-old girls, doesn’t it? I mean, it doesn’t just skip the fifteenth year.”

At the defense table, Martin Tierney looked up from his notes. Gersten’s smile seemed wan. “Of course not, Ms. Dash. That was never my position.”

“But it
is
your position that Mary Ann’s pregnancy confirms her immaturity?”

Gersten crossed his legs, seeming to jiggle on the witness stand. Carefully, he said, “It
suggests
that.”

“Well it certainly suggests something.” Sarah’s voice was harsher, implying repressed anger. “Do you believe that the parents of a fifteen-year-old girl should talk to her about sex? Or should that be left to chance?”

At the corner of Sarah’s vision, Martin Tierney seemed about to stand. Sitting back, Gersten said, “I think at least some information is appropriate.”

“Some? Such as that sex for a teenage girl may actually involve a teenage boy?”

“I don’t know what you’re driving at.”

“You don’t think much of the maturity of teenage girls. Would you assert that when it comes to sex, teenage boys are more mature, judicious, and farsighted?”

Gersten’s smile was without humor. “No,” he said with elaborate patience. “Their hormonal drives are very strong.”

“Really?” Sarah’s voice filled with mock incredulity. “Strong enough to cause them to actually
mislead
a teenage girl in order to have sex?”

Gersten braced his shoulders. “Boys go through a process, too, before they become sexually responsible. If ever.”

Sarah paused a moment, deliberately gazing at Martin Tierney. “Then shouldn’t ‘loving’ parents with a ‘wealth of perspective and experience’ discuss that with their fifteen-year-old daughter?”

Gersten, too, glanced at Tierney. Softly, he said, “It would be helpful, yes.”

“Or, failing that, at least bring up birth control.”

“It depends on the family, Ms. Dash. But it’s certainly something a fifteen-year-old can handle.”

Martin Tierney bit his lip, pale eyes focused on Sarah. “Then would you also agree,” she asked Gersten, “that a parent’s failure to discuss sex with their fifteen-year-old might, in your words, ‘retard the growth of personal competence which parental involvement brings’?”

Pondering his answer, Gersten pursed his mouth. “Some families,” he said, “for reasons moral and religious, prefer to treat all premarital sex as wrong. Which may limit discussion.”

“So when should
their
‘parental involvement’ kick in? After the girl gets pregnant?”

Gersten offered the same forced smile. “In my view, parental involvement at any stage can be quite beneficial.”

“Including forcing a fifteen-year-old to have a child because of sex they never prepared her for?”

Once more, Tierney started to rise. “It would depend,” Gersten answered, “on the dynamic within the family.”

“Okay. In all your hours with the Tierneys, did you ever ask
them
if they discussed sex with Mary Ann?”

“No,” Gersten answered slowly. “I did not.”

“Well, it’s too late now, isn’t it? Especially for her.”

“Your Honor,” Tierney said in an angry voice. “Ms. Dash is distorting our family—”

“I apologize,” Sarah said with sarcasm. “I wouldn’t want this to resemble Dr. Gersten’s remarks about your daughter. Or, for that matter, me …”

“All right,” Leary told Sarah. “If you want to make a point, ask a question. And you, Professor Tierney, can sit down.”

Turning to Gersten, Sarah said evenly, “You’ve interviewed both Mary Ann and her parents. Is it your understanding that the Tierneys have ordered Mary Ann to have this child?”

Gersten glanced at Tierney. “They’re trying to stop an abortion, if that’s what you mean.”

“And their objections are religious, aren’t they?”

“Yes. And moral.”

“That objection has nothing to do, does it, with whether the Tierneys are better qualified than Mary Ann to decide?”

“No. Except, as I said, that the Tierneys’ moral beliefs are well considered and well formed.”

“Well formed enough, in fact, to order their fifteen-year-old to have a child without a cerebral cortex.”

Gersten frowned. “They also believe—quite reasonably— that aborting this child will harm their daughter emotionally.”

Sarah looked at him in feigned bemusement. “In your expert opinion, Dr. Gersten, is Mary Ann able to grasp the fact that her fetus will likely lack a brain?”

“Yes.”

“About
that
, she understands what her parents understand, right?”

“Yes.”

Pausing, Sarah cocked her head. “By the way, have you ever undergone a classical cesarean section? Personally, I mean.”

There was a small ripple of laughter from the media. Forced to smile, Gersten answered, “It’s an experience I’ve missed.”

“Me too. But do you share my understanding that— however you calculate the odds—a classical C-section can possibly lead to infertility?”

“Yes.”

“And is Mary Ann Tierney as capable of grasping that as you or I?”

Gersten nodded. “As I said, she’s focused on it.”

“So she understands both medical risks—hydrocephalus and infertility—just as well as her parents do?”

“Yes.”

Sarah turned, walking back to Mary Ann. “So why can’t Mary Ann Tierney decide not to risk a classical cesarean section for a child likely doomed at birth?”

Gersten considered Mary Ann, whose own expression—to Sarah’s satisfaction—commingled anger and challenge. “The issue,” he said at length, “isn’t her medical cognizance. What concerns me is the potentially severe emotional consequences of late-term abortion, in violation of her deep belief that a fetus is a life.”

“An
inviolate
life?” Sarah asked. “Under all circumstances? She’s never faced these circumstances before, has she?”

“No. But her Catholic faith remains strong.”

“Are you seriously telling me, Doctor, that from childhood Mary Ann had the unalterable religious conviction that fifteen-year-old girls should deliver hydrocephalic fetuses by means of a cesarean section—at whatever risk of infertility?”

Gersten shifted in his chair. “We’re talking about broad principles, Ms. Dash. Which, in the ethic in which she was raised, apply to this pregnancy.”

“Isn’t a fifteen-year-old,” Sarah pressed, “capable of
deciding—as to this difficult situation—that her beliefs differ from her parents’?”

“Intellectually, perhaps. At least in theory. But I still worry about the emotional impact.”

“What about the impact of being forced to have this child? Wouldn’t
that
be traumatic to Mary Ann, and devastating to the family?”

Pensive, Gersten paused to sip from a glass of water. As he did, Sarah noticed Margaret Tierney, hands clasped in anxiety.

“In the short term,” Gersten said, “it’s harmful. But I think the Tierneys will be healed by love and shared beliefs.”

“Short term? What about the birth of a severely disabled baby, who then dies, leaving Mary Ann infertile for life? Would you say all bets are off?”

Grimacing, Gersten wagged his head from side to side. “Infertile for life?” he repeated. “That would present a much larger problem.
If
that’s how things turn out.”

“Then let’s talk about a more immediate problem.” Glancing down at Mary Ann, Sarah finished, “This trial.”

“How do you mean?”

“You’re a noted expert, Dr. Gersten, with a sensitive grasp of the emotional life of adolescent girls. Wouldn’t you say that her parents—by having you portray her as immature, minimally competent, and a virtual pawn of her lawyer—are doing serious damage to their relationship?”

Martin Tierney sat straighter, watching Gersten intently. “This trial,” Gersten answered, “was forced on them, as is the need to address the issues you raise …”

“Forced on them? The
United States government
was ready to defend this case.”

“The United States government,” Gersten rejoined, “is not her parents. In my mind, their intervention is an act of courage …”

“Answer the question,” Sarah snapped. “Is your portrayal of Mary Ann potentially humiliating to her, and toxic to her relationship with her parents?”

Gersten frowned. “Toxic? I don’t know if I accept that. Nor do I accept that it’s the Tierneys’ fault—or mine.”

“Oh? Then it must be Mary Ann’s. Or—better yet—mine.”

Gersten exhaled. “At this juncture, there’s no point in assigning fault. This trial will certainly leave scars.”

Sarah nodded. “Then let’s move on. Are you aware that, in 1989, C. Everett Koop, the Surgeon General of the United States, advised President Reagan that the psychological risks of abortion are virtually nonexistent?”