Protect and Defend (25 page)

Clearing his throat, Rabinsky looked up at Leary. “Whatever their motives, it’s a very interesting argument. And if the traditional media can’t report this aspect of the story, then our readers, listeners, and viewers will flock to the Internet for news. In other words, to the least responsible sources.”

Leary compressed his lips in frustration.
You fool
, Sarah wanted to tell him,
what did you expect?
“These people flouted my order,” Leary snapped. “You’re asking me to reward them.”

“Not so,” Rabinsky said. “I’m asking you not to punish those who honored your order, and now find ourselves disadvantaged. In my experience, Judge, the Internet is so hydra-headed as to be ungovernable. Other Internet outlets are following the
Frontier
’
s
lead. By the time they finish appealing your current order, this will all be academic—”

“Issue a contempt order.” Martin Tierney’s interruption
was uncharacteristic, as was his open anger. “Today, against anyone who’s printed our name …”

“Anyone?” Rabinsky asked him. “Everyone? There’s no putting the genie back in the bottle, nor should there be. When you chose to intervene on behalf of the fetus, then to conduct the case yourself, you made your own identity central to the story.

“Judge Leary has no jurisdiction to find the entire Internet in contempt, let alone private citizens who pass the story on to others. So consider not only whether you’ve asked for this attention but whether you shouldn’t, at least in some ways, seek it. Instead of making the media your adversary, make it a vehicle for your views—”

“Mary Ann Tierney,” Sarah cut in, “is not a ‘vehicle.’ She’s a fifteen-year-old girl who wants a personal tragedy to remain personal.” Pointing toward Martin Tierney, she said to Leary, “If she had
murdered
her father for his beliefs, instead of simply opposing him in court, the confidentiality laws regarding juveniles accused of crimes would protect her from exposure. The least this court owes her is to enforce its own orders.”

Leary raised his eyebrows. “Mr. Fleming,” he asked, “does the Justice Department have any view?”

“This is a constitutional challenge,” Fleming answered soberly, “not a teaching opportunity. In our view, which advocates of children’s rights would echo, Mary Ann could be severely harmed by being forced to become a public figure. We’re happy to resolve this matter without exposing the Tierneys on television.”

“Mr. Saunders?” the judge asked.

Saunders folded his hands. “We’re here at Mr. Tierney’s invitation, Your Honor. We defer to him.”

It was hardly a firm statement of support; to Sarah’s mind, Saunders was like a political candidate who leaves the dirty work to his minions. But it was sufficient for Tierney’s purposes. “All the parties to this case,” he told Leary, “are in agreement. The only one who wants my family exposed still further is Mr. Rabinsky, who’s here at his
own
invitation.”

“You’ve exposed yourselves,” Rabinsky countered. Facing Leary, he said, “While Mr. Tierney’s feelings are entitled to some weight—”

“Mary Ann has feelings of her own,” Sarah interjected. “What price does she have to pay for an act of Congress?”

“That’s the point,” Rabinsky said imperturbably. “Both the Tierneys and their daughter voluntarily invoked the legal process to raise matters of overriding public interest covered by the First Amendment. It’s clear that this case is inextricably intertwined with the character of the Tierney family itself. Where that information is already on the Internet, to continue obliterating faces and beeping names, or censoring the mainstream press, is futile and unfair.”

Raising his hand for silence, Leary squinted at the table, as if a few seconds of concentrated thought were sufficient to slice through the thicket of contention. “All right,” he said. “I’m lifting my previous strictures on the media.”

Turning to Tierney, he explained, “I’m sorry, but Mr. Rabinsky’s position has the unhappy virtue of acknowledging reality. I’ll keep the ban for twenty-four hours, so that you or Ms. Dash can appeal to the emergency motions panel for the Ninth Circuit. I believe Lane Steele is the presiding judge this month.”

This last information jarred Sarah from her shock at Leary’s decision. The month had barely begun; whoever lost at trial must appeal to—or be reassigned by—a panel including the judge on Caroline’s court most noted for his pro-life views. But Martin Tierney stared past Leary, bereft.

For once, he did not speak the perfunctory, foolish word of thanks custom requires from lawyers after a ruling, however adverse and peremptory. Tonelessly, Sarah uttered it for them both.

In the corridor between the chambers and the courtroom, Sarah stopped Martin Tierney. In an undertone, she said, “Leary’s an idiot. God help us both.”

Tierney still looked stunned. “Will you join me in an appeal?” he asked.

“Yes. But I doubt that Judge Steele, or anyone, will see any point in disturbing a trial judge’s reversal of his own order.” Gently, Sarah rested her hand on his arm. “Let her go, Professor Tierney. Sign the consent.”

Tierney paused, pale eyes filled with anguish, then shook his head. “You still don’t understand,” he answered. “I can’t.”

He turned from her, leaving Sarah to explain the ruling to his daughter.

Q
UESTIONING
D
R
. J
ESSICA
B
LAKE
, Sarah felt on edge; though the psychologist was poised and well prepared, her testimony would be crucial. With her delicate features, wire-rim glasses, and hair skimmed back from her face, Blake exuded calm. But Blake’s premise—that parental consent laws damaged teenage girls—was incendiary.

“In your experience,” Sarah asked “are teenage girls sufficiently mature to decide between motherhood and abortion?”

“Most are,” Blake answered. “As to the rest, one must ask why a girl who’s unequipped to choose between motherhood and abortion is equipped to be a mother.”

“How does that affect your view of parental consent laws?”

“It’s one of several reasons that they do more harm than good,” Blake explained, facing Leary. “Up to now our experience is with state parental consent laws for previability abortions, which grant minors far broader exceptions than
this
law allows. Under
those
laws, a judge can either conclude that a girl is mature enough to make the decision for herself, or—if not—that her interests are better served by abortion than by motherhood.

“These exceptions permit a minor to abort in ninety-nine percent of all cases which go to court. But the problem with
any
parental consent law is that many girls are
afraid
to go to court. The result is that they become unwed mothers by default, with all the difficulties that implies for both the minor and her child.”

“And how do parental consent laws impact families?” Sarah asked.

“Their stated purpose is to promote family unity. But their actual effect is contrary—”

“I’ve had teenage daughters,” Leary interjected. “Sometimes they didn’t like the rules I set. But part of being a parent is helping them make wise choices, sometimes by setting limits. Now that
they’re
parents, they thank me for it.”

Looking up at him, Blake’s eyes narrowed, and she measured her words with care. “If we’re talking about makeup, or curfews, or homework—most teenage issues—we’re completely in accord. But if you took your daughter to court on national television, and in essence said, ‘You’re a delivery system for a fetus with little hope, incapable of deciding for yourself how that will affect your capacity to bear more children,’ she might be a bit less grateful.”

Watching Leary’s annoyance, Sarah was torn between amusement and concern; though Blake had reduced him to wordlessness, it might come at a price. Smoothly, Blake continued, “You’re well aware, I know, that the normal parental paradigms don’t apply to this situation. A girl who lacks the capacity or experience to choose is a poor risk as a mother. And far too often, her ‘love’ for a child reflects the narcissistic hope that the child’s love for
her
will fill an emotional need that her own parents have failed to fill. A far cry from your daughters, I’m sure.”

Blake was astute, Sarah realized; she had first put the judge off balance, then given him an out. Taking it, Leary asked, “What conclusions did you reach about Mary Ann?”

“That she’s typical for her age and experience,” Blake answered promptly. “And, as such, completely capable of making this decision.

“At fifteen, the ability of a minor to understand the impact of abortion versus motherhood is little different than that of young women at twenty-one, or even twenty-five. And a survey of young women after a first-trimester abortion shows that only seventeen percent suffer from any appreciable guilt—”

“Shouldn’t they,” Leary interjected, “by the third trimester of pregnancy? Which is where Mary Ann Tierney is now.”

Unruffled, Blake looked at up Leary. “Where Mary Ann is
now
,” she answered, “is in your courtroom. That shows a strength of character which speaks well for her ability to make this decision, then live with it.

“The best predictor of emotional peace with such a decision is the ability to make it for yourself. And one of the two leading predictors of emotional damage is a nonsupportive emotional environment.” Once more, Blake glanced at Martin Tierney. “Which
is
what we have here.”

Tierney stood at once. “I understand that expert witnesses have latitude,” he said to Leary. “But I object to Dr. Blake’s bias regarding our family.

“The world of Dr. Blake is a foreordained moral dead zone, where the decision to abort is the only measure of sanity, and parental reservations make us—or any family— dysfunctional. When Mary Ann at first resolved to bear our grandson, it meant that she was narcissistic. When she decided to abort, it meant that she’d become emotionally healthy. And when we objected, we became a ‘nonsupportive emotional environment.’ But all that really demonstrates is that Dr. Blake’s testimony is worthless.”

Leary held up a hand. Turning to Blake he said, “In essence, Professor Tierney says you’re offering cookie-cutter conclusions, where everyone and everything fits your preconceptions.”

“I have no preconceptions,” Blake replied. “The seven hours I spent with Mary Ann are informed by fifteen years of seeing other teenagers, and by extensive research—mine and others’. But I base my opinion on Mary Ann herself.

“When Mary Ann first became pregnant, she imagined an uncomplicated pregnancy which would make her boyfriend love her. That’s not uncommon, nor confined to teenagers. Add Mary Ann’s respect for her parents’ opinion, and her passivity is unsurprising.

“The sonogram was a wake-up call. Mary Ann realized that this was not the normal child every mother hopes for, and that complying with her parents’ beliefs meant that she might never have another. Which brings me back to whether parental consent laws are either necessary or desirable …”

“I know you have an opinion.” Leary had begun his regimen of what Sarah thought of as aerobic judging—cocking
his head, rocking back and forth, fidgeting with his tie, interrupting and looking more pleased with himself than when forced to listen passively. “What I don’t know is what it’s based on.”

“Research,” Blake responded. “From 1997 through 1999, three colleagues and I surveyed seven hundred pregnant minors living at home in California, where there was no state law mandating parental consent.

“Eighty percent of minors involved their parents in deciding whether to abort, suggesting that a functional family doesn’t require Congress to force them to communicate. In ninety-five percent of those cases, the parents supported their daughter’s decision, regardless of what it was—”

“What about the other five percent?” Leary interjected. “Is the only measure of a healthy family parents who acquiesce in whatever their teenage daughter wants?”

“No,” Blake responded coolly. “Another measure is that the father doesn’t have sex with her, or beat her, or throw her out for becoming pregnant. And the leading cause of late-term fetal anomalies—those impacted by this law—is incest.”

There was little risk, Sarah realized, that Leary’s intervention would unnerve Jessica Blake—the risk was that she would embarrass him on television. “What all of these laws demonstrate,” Blake told him, “is the shocking—or deliberate— naïveté of lawmakers with respect to dysfunctional families. Imagine explaining to your mother that your father made you pregnant, or watching him beat her for your sins, or selling your body to abusive strangers because you’re homeless and have a child to support. We saw those cases, numerous times …”

“What about the Tierneys,” the judge persisted. “A normal, loving family where the parents will love and support their child
and
their grandchild? Doesn’t that happen more often than these difficulties you mention?”

“Where the minor wants an abortion,” Blake answered, “and her parents object? No. That’s just as well: the unwanted children of unwed mothers have a far greater propensity to drop out of school and to commit acts of violence. Over the long term, an unwilling parent is less likely to be a good parent, regardless of who the grandparents are.

“But that aside—and even in a loving home—the negative effects of having an unplanned child include depression, a lack of self-esteem, and a sense of hopelessness.” Blake glanced at Mary Ann Tierney. “That reflects some very harsh realities—statistically, unwed minors have less education, and a far greater chance of being economically marginal. Only five percent of women who have children when they’re under twenty-one finish college;
over
twenty-one, and almost half get their degree …”

“I’m thinking about adoption,” Leary objected. “Doesn’t giving a child to a loving home create more satisfaction than abortion? Or is that depressing, too?”

“This case isn’t about an adoptable child,” Blake responded. “Cases of late-term abortion seldom are. If that weren’t so, Your Honor, I’d be asking the very same question you are. Because we’re in accord—no civilized society prefers abortion to adoption.”