Protect and Defend (21 page)

“Can you read back the question?” she asked the reporter.

The reporter did. “Our profession agrees that it’s quite clear,” Flom answered, “even without this statute. It’s illegal, after viability, to abort a normal fetus of a healthy mother. Regardless of the mother’s age.”

Sarah stood near Mary Ann, one hand flat on the conference table. Beside her, Mary Ann stared at the photograph of the ruptured uterus, which Sarah had left there. “So
you’ve
never performed such an abortion?” she asked Flom.

“No. Nor do I know any doctor who has.” Pausing, Flom gazed at the defendants. “What abortion opponents don’t understand—or at least pretend not to—is that late-term abortions are rare: beyond twenty-one weeks, fewer than one in a hundred; beyond twenty-four weeks, perhaps one in a thousand.

“The idea that they’re routinely used as a form of birth control slanders my profession. Nor, despite the propaganda otherwise, are doctors snatching babies from the womb moments before birth. Although thanks to this ill-conceived statute, Mary Ann Tierney is getting closer to that circumstance every day.”

Watch it
, Sarah warned him with her eyes. She waited a moment to ask the next question. “Suppose, Dr. Flom, that a teenage girl came to you in the sixth month of pregnancy, lacking any means of support, and said she wanted an abortion because her boyfriend had abandoned her.”

Flom’s fine poet’s features became emotionless, and the renewed calm of his voice suggested that he had received Sarah’s message. “I’d feel profound sympathy. But I’d have to tell her it was illegal, and counsel her on alternatives like adoption.”

“Suppose that she’d been raped?”

“I’d feel even more sympathy, Ms. Dash. But my answer would be the same.” Flom spread his hands. “Only if there is a significant threat to the life or health of the mother,
or
a severe fetal anomaly, will I perform a late-term abortion.”

Sarah glanced at Leary. He seemed to be paying close attention, though she could not be sure what that meant. “Aside from hydrocephalus,” she asked Flom, “what are common threats to the life or health of the mother?”

“A cardiac problem, or cancer—any condition where pregnancy delays vital treatment.” Following Sarah’s cue, Flom faced Leary again. “Often, Your Honor, treatment has already been delayed by other conditions—poverty, lack of insurance, substance abuse, or simple ignorance—which forestall diagnosis and create the need for a late-term abortion. For teenage girls you can add still another: the attempt to conceal their pregnancy.”

“In your experience,” Sarah asked, “why do they do that?”

“Because, for a host of reasons, they’re afraid.” Pausing, Flom faced the courtroom, and spoke with quiet emotion. “But that leads to one very frequent reason young girls are afraid, which
also
leads to fetal anomalies. Incest.”

Sarah paused a moment. “Is that common?”

“We see it regularly,” Flom answered. “And it’s a little tough to talk
that
one over with Mom and Dad.”

In the silence, Martin Tierney rose. “Your Honor,” he said slowly, “I recognize that Dr. Flom sees social problems which are tragic and which we all deplore. Still, a fetus is a life. Nor should the sad facts of one family—or the claims about that family, true or false—deprive other families, such as ours, of the protection of this law.”

It was an attempt, however wan, to blunt the impact of this testimony. “Your Honor,” Sarah emphasized, “this is
not
a case of incest, and we acknowledge that the Tierneys are loving parents. But many girls subject to this law are not so fortunate.”

“All right,” Leary told her. “Go ahead.”

Facing Flom, Sarah asked, “In the case of troubled families, what are the drawbacks of requiring a parent to consent to a late-term abortion?”

Pensive, Flom steepled his fingers. “The best way to answer,” he said at last, “is to tell you a story.

“Last year, I got a call from a teenage girl who lived in another state. She was three months pregnant, and the law in her state required parental consent to
any
abortion. Because California has no such requirement, a women’s clinic referred her to me.

“Even on the telephone, she was crying. But I finally found out what else was wrong. Her father, an alcoholic, had raped her, and she was afraid to tell her mother.”

Pausing, Flom bit his lip. “She was hoping,” he continued, “that someone from the clinic could drive her here. But Congress had passed an
earlier
law. It forbids anyone not her parent to take a minor, without parental permission, out of state for an abortion. One law ordered her to tell her parents, and another kept her from escaping them.

“All I could tell her was to try and get here on her own.

“Three months later, she did. She was tired, and dirty, and hungry, much like the other runaways we see. I asked her what had happened.” Flom inhaled and his voice, though still level, was tight with anger. “Thanks to these ‘protective’ laws, she’d been forced to tell her mother. When Mom confronted Dad, he hanged himself. And so, unfortunately, the mother blamed her daughter.

“The girl ran away. By the time she got here, she was six months pregnant. All that I could do was hope that what was true in so many cases of incest—that testing would show the fetus to be defective—would be true here.

“It wasn’t. So instead of aborting her late father’s child, I delivered it. Now she’s trying to raise him on her own.” Once more, he looked up at Leary. “As a doctor I have to ask, Your Honor, why this was necessary. But
Congress
never asked. Instead they passed a law, and now they’ve passed another. God knows how many more tragedies these laws will force other girls to live with.”

There was quiet, and then Leary recessed the trial for lunch.

W
HEN THE
defense commenced its cross-examination of Dr. Flom, it was Barry Saunders, not Martin Tierney, who questioned on behalf of the fetus.

The General Counsel for the Christian Commitment was a large shambling man with small, shrewd eyes, a slightly pursed mouth, and razor-cut hair. To Sarah, he looked like the prototype of a southern football coach, with all the bluffness, calculation, and zeal to win that this implied.

“This procedure“—the word was laden with distaste— “you’re wanting to perform on Mary Ann’s child, is that what’s called a ‘partial birth’ abortion?”

Flom gave him a measured look. “In medicine, there is no such thing. That’s a term invented by politicians and anti-abortion activists.”

Saunders placed his hands on his hips. “You mean doctors don’t allow the baby to be partially delivered, then crush the skull?”

“Doctors
may
,” Flom answered, “if that’s the safest technique for saving the mother’s life or health. I don’t intend to do that here.”

“You don’t? Then you’re meaning to dismember the fetus and deliver it piecemeal?”

Beneath the table, Sarah felt Mary Ann grip her hand. “No.” Flom’s voice remained calm. “Let’s be clear, Mr. Saunders. Dealing with a medical emergency which requires late-term abortion is neither simple nor pleasant, for either the woman or her doctor.

“For propaganda purposes, your group has tried to pass state laws barring procedures which may be the safest for the mother, but can be made to sound the most gruesome.
Those
laws were thrown out—they were too broad for doctors to know what was illegal, and created greater danger to the mother. So now there’s
this
law, which governs
all
late-term abortions in
every
state unless the parents consent.” Once more, Flom’s voice took on an edge. “This bars me from protecting Mary Ann’s reproductive capacity by any procedure, including the one I
would
anticipate using. So I suppose it has the virtue of clarity.”

Saunders appraised him, then said to Leary, “I realize the witness is ideologically committed to the pro-abortion cause. But he should confine himself to answering my questions. He can deliver speeches on the courthouse steps.”

Sarah remained sitting. “When Mr. Saunders deliberately misunderstands the witness,” she said to Leary, “and misstates medical procedures, his questions must be placed in context …”

“Confine yourself to answering,” Leary snapped at Flom.

“Just how,” Saunders inquired promptly, “
do
you intend to take the life of Mary Ann Tierney’s child?”

Flom glanced at Sarah. “Forgive me,” he told Saunders politely, “but perhaps both of us should leave to others whether a fetus without a brain has a ‘life’ as we understand it—”

“Oh, we’ll get to
that
,” Saunders cut in. “Just answer the question.”

Flom folded his arms. “Suffice it to say, Mr. Saunders, that a medical emergency like this is a tragedy for all concerned. The question is what procedure is safest for Mary Ann. Will you permit me to give you a little history?”

Saunders briefly flapped his arms, miming helplessness and impatience. “Go ahead. Seems like nothing’s going to stop you.”

At the defense table, Martin Tierney looked down with furrowed brow. Sarah wondered how this performance was affecting him; Saunders’s veiled bullying and anti-intellectualism seemed contrary to Tierney’s faith in argument and reason. Quickly, she decided to let Saunders do what he wished, and place her trust in Flom.

“First,” Flom said, “there’s a myth that late-term abortion originated with
Roe v. Wade
, and reflects a particularly barbarous extension of abortion on demand. But as early as
1716, an English medical treatise proposed saving the mother’s life by removing the contents of the fetal cranium before delivery.

“In essence, that’s what I propose to do here, if possible. Although, in this case, we can expect the cranial contents to be minimal—except for fluid.”

Saunders’s small mouth grimaced with distaste. “You’re assuming a lot, Doctor, about someone else’s grandson. Maybe you can tell me precisely how you intend to do away with this life you deem so worthless.”

Instinctively, Sarah rose to object, then sat again. “No life is ‘worthless,’” Flom responded tartly. “But as a doctor, I’m aware that the same anomaly which renders
this
fetus virtually hopeless threatens Mary Ann’s capacity to have normal children. This law prevents me from protecting her by the safest possible means—or any means. And that, as a
doctor
, I resent.

“As a
doctor
, Mr. Saunders, I’m faced with the problem of getting an unnaturally enlarged fluid-filled object, the fetal head, through the opening of a semi-elastic container, the uterus, which is too small for this to be possible without damaging the container or its opening.”

Beneath the table, Sarah felt Mary Ann’s grip tighten. The court was seized by intense quiet; Leary was quite still, and his clerks had stopped snickering and whispering. “One technique,” Flom told Saunders, “of which you apparently disapprove, involves extracting the feet in a breach delivery, then decompressing the skull. The technique which I think safest involves decompressing the skull, and delivering as normal.

“Morally, I don’t see the difference. Medically, I’ve performed this procedure precisely one thousand three hundred sixty-seven times.” Looking past Saunders, Flom seemed to speak to Martin Tierney. “Of that number, I’ve had five hospitalizations for complications, three blood transfusions, no extra surgeries, and no cases of infertility whatsoever. If I’m permitted to do so, I
will
make certain that Mary Ann can have more children. Period.”

Martin Tierney’s pale eyes were thoughtful. As if to himself, he slowly shook his head and then, rising, asked Judge Leary, “May I briefly question the witness, Your Honor?”

Saunders turned to him, seemingly amazed at this intrusion. For her own reasons, Sarah sympathized—Saunders offered Flom a better foil. Swiftly, she said, “This isn’t tag-team wrestling, Your Honor. It’s enough for the witness to be questioned by two parties, let alone two lawyers for one party.”

“The witness seemed to be speaking to me directly,” Tierney replied in mild tones, “as a father, if not a prospective grandfather. I’d like to make some inquiries in that same spirit.”

“Go ahead,” Leary ordered. “You can sit down, Mr. Saunders.”

Without glancing at Tierney, Saunders retired to the defense table, sitting with his chin propped in his hand. Moving toward Flom, Tierney addressed him with quiet intimacy. “It’s possible, is it not, that this child could be born with a normal cerebral cortex?”

“Objection,” Sarah said at once. “In theory, almost any-thing’s possible. The question is how likely—”

“Are you testifying,” Leary interrupted, “or merely telling the witness how to testify? Sit down, Ms. Dash.” As Sarah sat, flushing, Leary demanded, “Answer the question, Dr. Flom.”

“It’s extremely
unlikely
, Your Honor.”

“But medically possible,” Leary pressed.

“Put that way, yes.”

Leary shot a triumphant look at Sarah; helpless, she wondered whether he had taken such a dislike to her, or to her case, that he meant to undermine her before her client, her witness, and an audience of millions. In any case, she was warned; Flom was on his own.

Facing Flom, Tierney said, “You should also know, Dr. Flom, that any risk of infertility to Mary Ann distresses her mother and me more than we can express. Can you accept that?”

“Of course.”

Pausing, Tierney slumped as though burdened by his responsibilities as a parent, and its implications for Mary Ann. “You place that possibility at roughly five percent, correct?”

“I do.”

“But that’s not a precise figure, is it?”

“No. It’s an estimate. It could be more, or less.”

“So it could be four percent. Or three.”

“Yes.”

“And, indeed, some studies place the risk at two percent, or lower.”

Flom hesitated; like any good expert, Sarah noticed, he became less voluble when wary of his interrogator. “That’s true,” he answered. “Perhaps one of our differences is that I wouldn’t deem even
that
an acceptable risk for my own daughter.”