Protect and Defend (30 page)

“When you say ‘highly unlikely’ …”

“Appreciably less than one in forty, in my opinion.”

Turning to Sarah, Mary Ann grasped her wrist. “He’s lying,” she whispered. Nodding, Sarah kept her eyes on McNally.

“It’s also conceivable,” McNally concluded, “that complications from a C-section could lead to a hysterectomy or other causes of infertility. But that’s one percent at most.”

Sarah’s stare at McNally hardened. Tierney stepped closer to the witness, as though to underscore a critical point. “And in the course of our consultations, what did you advise us as to whether delivery by cesarean section was safer for our daughter than late-term abortion?”

McNally gazed at Mary Ann with a sorrowful expression, and then spoke to Leary. “That late-term abortion posed the greater risk to Mary Ann’s life or health.

“The operation proposed by Dr. Flom is more than distasteful. The chance of puncturing the uterus, or some other misadventure, is more serious.”

Once more, Leary seemed engrossed. But Sarah felt quiet satisfaction; touching Mary Ann’s hand, she scribbled on her legal pad, “That was a
huge
mistake.” Conscious of those at the defense table, she did not change expression.

“As I understood you, Doctor, you testified that our grandson
may
have a disability.”

“I said
may
,” McNally answered with a judicious air, “because the hydrocephalus, while marked, is not in its severest form.

“Severe hydrocephalus is not compatible with life. But a sonographic measure of this baby for cortical thickness suggests that there is at least
some
reason for hope. It might even be possible to install a shunt, drain the fluid, and save the baby’s life. Which is the proper function of a doctor.”

Mary Ann was quiet now: McNally’s tacit reproof, Sarah thought—that he was acting to protect the life inside her— must resonate with the beliefs she had absorbed since childhood. “What percentage of late-term abortions,” Tierney inquired, “represent cases of hydrocephalus?”

“Very few, in my survey of the data—under ten percent. Other cases may include spina bifida, which can be severe, or not severe, or wholly reparable with surgery. And do we start
including Down’s babies, who many people parent willingly?” Once more, McNally’s voice became didactic. “Dr. Flom excoriates Congress. I say thank God it cares. No sane society designates doctors as a special priesthood, charged with deciding what constitutes ‘meaningful life.’ And even a baby who may well die at birth deserves the compassion of the human community, not“—abruptly, McNally’s voice became caustic—“scissors in the back of his head.

“At a minimum, a humane society would pass laws—like this one—to prevent doctors from performing this horrific practice, just as we prevent them from prescribing narcotics without a license; or helping impoverished patients to harvest their organs for sale; or using their God-given skills to
play
God by putting the infirm to death. The pro-abortion argument that—uniquely—the state cannot regulate child-murder is ethically and morally repugnant.”

Flinching, Mary Ann turned from him. “But were ‘normality’ the standard,” McNally finished, “I’d give your grandson a ten percent chance of being normal. Which is greater than Dr. Flom’s exaggerated claim regarding the risks of a cesarean section.”

Tierney seemed to contemplate this with genuine sorrow. “What does that suggest,” he asked, “regarding the implications of permitting late-term abortion whenever a doctor claims that it protects a mother’s physical health?”

“That ‘physical health,’ as defined by Dr. Flom, is a slippery slope which brings late-term abortion perilously close to abortion on demand. And that ‘mental health’—a stated concern of Dr. Blake’s—will take us all the way.

“At
that
point a doctor can conclude that ‘mental health’ warrants aborting a thirty-week-old fetus to spare a seventeen-year-old girl the trauma of not fitting into her prom dress.” Pausing, McNally turned to Mary Ann with an air of avuncular concern. “As a doctor and friend, I’ll do anything I responsibly can to care for Mary Ann Tierney. But we’re all here today because she chose to have sex, resulting in a pregnancy. That decision—that medical fact—has profound and important implications for
two
lives, not one.

“Mary Ann is here to speak for herself, she claims. But who, then, speaks for her son?”

Despite her feelings, Sarah acknowledged, that McNally made a forceful witness; the reporters present had stopped whispering, and were either engrossed or scribbling notes. “To remove a mole from Mary Ann’s cheek,” the doctor said to Martin Tierney, “I’d require your permission as her father. Yet this procedure has far greater implications.”

“Indeed.” Martin Tierney’s voice, though quiet, had a chilling undertone. “Please describe the procedure through which Dr. Flom proposes to take my grandson’s life.”

“Very well,” McNally answered with distaste. “On the first and second days, Dr. Flom will insert dilators into your daughter’s cervix.

“On the third day, he will remove the dilators, and rupture the membrane protecting the fetus.

“At this point, some doctors dismember the child’s extremities, while others would partially deliver his feet and legs. Dr. Flom’s procedure is aesthetically superior: he will prepare to deliver your grandson normally.” Pausing, McNally scowled. “To accomplish this, while lifting Mary Ann’s cervix, Dr. Flom will jam a pair of blunt curved scissors into the baby’s skull.

“His next step will be to spread the scissors to enlarge the hole. Then he’ll insert a catheter, and suction out what’s inside. That’s an experience Mary Ann cannot escape, and which none of us ever wish her to know.”

At her side, Sarah saw Mary Ann’s face drain of blood. “Medically,” McNally concluded in a tone of devastating quiet, “its only ‘advantage’ is to guarantee that your grandson— Mary Ann’s child—will be dead upon delivery. And that’s not why I went to medical school.”

W
ALKING TOWARD
James McNally, Sarah tried to block out everything but what she had to do.

“Have you ever performed an abortion?” she asked.

McNally folded his arms. “No.”

“Because you’re morally opposed to abortion?”

McNally frowned. “I’m Catholic, and I follow the teaching of my church. But my beliefs are also based on science, and on a doctor’s obligation to save life.”

Sarah paused, eyeing him curiously. “As a doctor, have you ever treated a rape victim?”

Quickly, McNally glanced at Martin Tierney. “Yes,” he answered. “Several.”

“In your observation, did those women find being raped traumatic?
Genuinely
traumatic, that is?”

Sarah saw McNally’s mouth tighten. “Yes.”

“Have you ever treated victims of incest?”

McNally seemed to draw his body tighter. “Yes.”

“What about both, Doctor—where the patient was a victim of rape
and
incest?”

McNally paused. “Once.”

“How old was she?”

“Fourteen.”

“Did you have occasion to observe how the experience affected her?”

Once more, McNally hesitated. “Adversely, it was clear. She had a hard time talking about it …”

“Was she depressed?”

“Depressed? At the least. She reported difficulty sleep-ing …”

“Was she potentially suicidal?”

McNally considered this. “I would have to say she was.”

“Your Honor.” Behind Sarah, Martin Tierney rose. “I fail to see relevance.”

Leary turned to Sarah, arching an eyebrow in inquiry. Ignoring Tierney, Sarah said, “One more question, Your Honor.”

“Go ahead.”

“You were describing, Doctor, a fourteen-year-old who was sleepless, despondent, and potentially suicidal as a result of being raped by her own father. In your view—moral, religious, and medical—is such a girl entitled to an abortion?”

Grimacing, McNally braced himself. “No,” he answered. “However evil her child’s provenance, it is, nonetheless, a life.”

“And so, even if she asked you for an abortion—a legal, first-trimester abortion—you would not perform it.”

“No. Instead I’d try to get her all the support and help I could, including some sort of intervention with the father …”

“A little late for
that
, don’t you think?”

“Ms. Dash,” the doctor said tightly, “I cannot condone abortion, even under circumstances as tragic as those.”

“Even if her prom dress didn’t fit?”

“Your Honor …,” Tierney protested.

Dismissively, Sarah said, “I’ll withdraw it,” without breaking off her scrutiny of McNally. She was locked in on him now, the questions coming reflexively; watching her, McNally hunched over as though entrenching himself.

“In other words, Doctor, no emotional trauma—whether incest or prospective infertility—justifies abortion.”

“That’s right.”

“In your mind, is there
ever
a situation where abortion is morally justified?”

“Yes. Where it’s clear the mother may die.”

“Even if the fetus appears healthy?”

“That’s a difficult case, Ms. Dash. But where a mother already has children who depend on her, and they’re at risk of losing her, the balance may favor saving the mother’s life.”

“In that case,” Sarah prodded, “you think she’s free to decide, and that a doctor should be able to proceed. Even though the baby’s ‘normal.’”

“Yes.”

“But
not
when the fetus is unlikely to have a brain, and the threat is not to life, but to reproductive health?”

McNally sat back. “One can always design harsh hypotheticals,” he answered. “Ones which touch the heart, and tax the conscience …”

“I take it that answer meant ‘no.’ Even if the girl were
your
daughter, and wanted an abortion?”

The question, though obvious, induced a reflective silence in McNally. “I can see,” he firmly answered, “the pain such a conflict can bring. But I hope I would be principled enough to do as Martin Tierney has.”

It was a better answer than Sarah had hoped for; quickly, she decided to leave it there. “Suppose,” Sarah asked, “that a court granted your daughter that right, over your objections. Would you want the late-term procedure done in the safest possible way by the best available doctor—regardless of your objections?”

“For my own daughter?” McNally’s voice held quiet indignation. “Of course. Or for anyone’s.”

“Do you dispute Dr. Flom’s statement that he has performed this procedure over thirteen hundred times, with
no
serious complications?”

McNally’s ire yielded to distaste. “I can’t dispute it, or confirm it.”

“Are you suggesting, Dr. McNally, that Dr. Flom is lying?”

“No.”

“Good. Are you aware of any late-term abortion procedure safer than Dr. Flom’s, or any doctor more capable?”

“In
that
particular context,” McNally answered with disdain, “no.”

“Yet you disapprove of Mary Ann Tierney availing herself of that same procedure?”

“Yes. Because it’s barbarous …”

“But not unsafe.”

“No.” McNally’s voice turned acid. “Except for the baby, of course.”

Sarah ignored this. “And yet you told Martin Tierney that birth by cesarean section was statistically safer than late-term abortion.”

“Overall, yes. According to the literature.”

“‘According to the literature,’” Sarah repeated. “What about your
own
experience, Doctor?”

McNally sat back, mouth slightly parted; by degrees, Sarah watched apprehension overtake him. “As I told you,” the doctor temporized, “I have no experience with abortion. At any stage.”

“But what about cesarean sections?”

After a moment, McNally nodded. “I have performed cesarean sections, yes.”

“Including the classical cesarean section which would be necessary for Mary Ann to give birth?”

“Yes.”

“They’re much more invasive than a normal C-section, aren’t they?”

“Yes.”

“Yet you say—absent unusual complications—that a classical C-section would be ‘unlikely to compromise Mary Ann’s fertility’?”

“That’s what I believe.”

“How unlikely, Doctor? Two percent?”

“Less.”

“One percent?”

“Perhaps.”

“Would
you
accept a
one percent
risk of infertility for
your
daughter?”

“Objection,” Tierney called out.

Still facing McNally, Sarah waved a hand. “Isn’t it true, Doctor, that when you first spoke to Mary Ann and her mother, you placed the risk at around five percent?”

“Perhaps.” McNally folded his arms again. “But I’ve since consulted the literature.”

“‘The literature,’” Sarah repeated. “So we’re back to that again.”

Before Tierney could object, the witness, stung, countered, “In
my
experience, Ms. Dash, I’ve never seen a classical cesarean section later cause a woman’s uterus to explode, as Dr. Flom described.”

“He didn’t just
describe
it,” Sarah answered. “He brought photographs. But the other risk you mentioned was a surgical mistake in performing a classical cesarean section, correct?”

Once more, the witness studied her with veiled eyes. “Correct.”

Softly, Sarah asked, “In your observation, Doctor, has such a mistake resulted in a hysterectomy?”

McNally’s lips compressed. “Yes. I mentioned that.”

“How many times?”

“I don’t know. It occurs, Ms. Dash—just not often.”

Sarah moved closer. “How often,” she inquired, “when you were the doctor?”

The hurt which showed in McNally’s eyes occasioned, in Sarah, a moment’s pity. “Twice.”

“And, in both cases, you were sued for malpractice—”

“Objection.” Tierney’s angry voice cut through Sarah’s question. “The question is irrelevant, and its clear intention is to humiliate this witness in public—”

“Unlike his testimony,” Sarah shot back, “which was intended to humiliate your
daughter
in public.” To Leary, she said, “This witness claimed that a late-term abortion performed by Dr. Flom is more risky than a classical C-section. I’m entitled to impeach his credibility.”