Scanning the opinion with shock and elation, Sarah stopped briefly at the footnote headed “Mental Health”:
“Because we declare the statute unconstitutional on other grounds, we need not resolve the vexing question of whether concerns for emotional health can ever justify a postviability abortion. We share the apprehension that this could lead to abortion on demand: any such abortions, if allowed, should contemplate emotional damage which is demonstrable and severe.
“We note, however, that courts routinely assess mental condition in other contexts, such as criminal culpability. And no precedent exists which would foreclose the authors of future legislation from a careful consideration of this issue. See Doe v. Bolton, 510 U.S. 179 (1973) at 191–92.”
Even here, Sarah thought, Caroline had shown more courage than was required.
She sat on the couch, Mary Ann next to her. Rapt, the girl asked, “What else does she say?”
Voice thick with emotion, Sarah began reading:
“‘Professor Tierney argues that abortion of this fetus—his potential grandson—would be a way station to eugenics. He summons the prospect of abortion based on eye color, or the absence of musical talent, or because genetic testing may indicate a predisposition to homosexuality. When these problems present themselves, as they inevitably will, we hope that the law—and more important, our societal sense of ethics— will be equal to the challenge. But we should not prevent a future harm by creating one in the present.
“‘When we discuss these issues, it is well to remember that this case involves a real person—a fifteen-year-old girl. She does not advocate eugenics. She does not seek abortion on demand. She does not even propose to abort this fetus solely because of its anomalies. Rather, she seeks to ensure that, in the course of her adult life, she may bear another child with a better chance of living.’”
Breathing deeply, Sarah read the final ruling:
“‘Does Mary Ann Tierney have that right? Under the Constitution, she does. And so does any minor facing a decision so fundamental and profound.’”
When Sarah looked around, Mary Ann was feeling her stomach. Tears ran down her face.
But Caroline had been impeccable to the last, though it took some moments for Sarah to explain this to Mary Ann.
“Because of the gravity of the issues,” Caroline had written, “and the prospective termination of fetal life, we stay Mary Ann Tierney from securing an abortion until seventy-two hours after the entry of this order. In that time, the government, or the Tierneys, may petition the United States Supreme Court for a further stay pending consideration of a petition for certiorari.”
Stunned, Mary Ann could only ask, “Then it’s not over?”
“Not if they petition the Supreme Court. But Caroline Masters has written a wonderful opinion, and the Court could deny your parents a hearing. Suddenly their legal position is a hard one.
“A single justice can grant them an emergency stay pending a review of their petition. But that’s a matter of a few days, tops. After that, the full Court can grant a further stay only if it decides to take the case …”
“My parents will never quit,” Mary Ann said in despair. “They’ll try to keep this going until he’s born.”
“They can’t—they’ve got a week, maybe two at most, and then the Court will have to rule.” Sarah hesitated, then resolved to say the rest. “Right now, there are only eight judges on the Court—they don’t have a Chief. It takes only four to decide to hear a case, but five to stay you from having an abortion until they do. Without five votes for a stay, Caroline’s opinion stands. There’s nothing your parents can do.”
Swallowing, Mary Ann stared at her, bewildered. “You mean the Court can decide to hear the case,” she asked, “but I still could get an abortion before it ruled against me?”
“Yes. If so, we’ll have won no matter what.”
Sarah stopped there: she could see Mary Ann begin to imagine the further mass opprobrium which might await her. But it was this very potential—exposing a fractured Supreme Court—which made matters worse for Caroline Masters. Even as Sarah’s heart went out to Mary Ann, some part of it went to Caroline.
The country was about to explode.
PART V
THE VOTE
ONE
AN HOUR after the opinion became public, the White House was buffeted by faxes and e-mails, and its telephone lines were clogged. Pro-life leaders were demanding that Kerry Kilcannon withdraw the Masters nomination, and the Christian Commitment had scheduled a rally in front of the White House. In response, several pro-choice spokeswomen had leapt to Caroline’s defense, calling her decision “courageous” and asking the President to reaffirm his choice. But an instant poll on MSNBC was running two to one against the opinion, and several key Democratic senators, reserved in public, had expressed their anxiety to Clayton Slade.
“As long as she’s in play,” Clayton said to Kerry Kilcannon, “this is what you’re going to be about.”
They sat in the Oval Office—the President, Clayton, and Ellen Penn—waiting for the Senate Minority Leader, Chuck Hampton. “Where’s Chuck?” Ellen asked.
“Meeting with Gage,” the President answered. “I gather Mac has a message for us.”
It was a moment, Macdonald Gage reflected, when power hung in the balance, testing the nerve and sinew of President and Majority Leader alike. But much depended on a third man, Minority Leader Charles Hampton, with interests of his own.
Gage and Hampton shared four years of warfare, compromise, and resentment, with Gage holding the majority and, therefore, the upper hand—doling out committee chairmanships, controlling the Senate calendar, rewarding his constituencies while stinting Hampton and the Democrats. Chuck Hampton wanted the majority, and the five seats he needed to win it, with all the passion of a competitor who had learned that, until then, every defeat would taste like bile. And Mac Gage knew that well.
Hampton sat across from him, lean, scholarly, and intense; filled with distrust for Gage, with apprehension about Caroline Masters. He did not want a fight over the Masters nomination, Gage was sure, and must worry that if the President and Gage commenced one—through either calculation or mischance—it could cost the Democrats dearly.
“Chuck,” Gage offered in a fraternal tone, “you need to remind our old colleague of the yawning gulf between difficult and impossible. He may have forgotten who he’s left behind.”
Hampton’s eyes glinted. Gage’s comment was a tacit reminder that Kilcannon’s election had done nothing for the Senate Democrats—the Republicans’ edge, fifty-five to forty-five, remained as it was before November. “Some of us,” Hampton answered, “thought it was impossible for Kerry to become President. He hasn’t forgotten that, or that he is.”
Though he felt edgy, Gage chuckled in appreciation. In the Democratic primaries, Hampton had supported Kilcannon’s opponent, the incumbent vice president, and now must work with a president whose memory was long. “That doesn’t mean,” Gage responded, “that he’s got nothing left to learn. You can keep him from learning that by hard experience.”
“At your hands?”
Gage decided to get to the point. “I haven’t had time to count, Chuck. But I’ll round up the votes to beat her …”
“Including Palmer’s?”
It was a shrewd thrust. “Chad will be there,” Gage answered firmly.
Hampton studied him, plainly noting that Gage did not claim Palmer’s firm commitment. “I admire your confidence.”
Gage maintained an unruffled air. “Chad has ambitions. No Republican with ambitions favors dissing parents and dismembering babies. Nor does any Democrat with sense.
“Bottom line, you can’t get Masters fifty votes. Why blow up the Senate trying?”
Hampton considered him. “And that’s what you want me to tell the President.”
Gage spread his arms expansively. “Why build rancor and spend capital in a losing cause, which will only bring more discord to
this body? There’s nothing in it for Kilcannon— or you.
“You end up losing, pissing off my party colleagues, and leaving you with scars Kilcannon will be too weak to erase with some great record of accomplishment. All over a woman who placed the thrill of voting for infanticide over sure confirmation as Chief Justice.” Gage’s voice rose in amazement. “Anyone with the IQ of a rutabaga would have ducked that vote. And if Kilcannon hasn’t lost his political judgment, he won’t ask you to walk the plank for a judge who has none.”
Hampton wiped his glasses, buying time. “You know the President,” he ventured dryly. “He’s been known to act on principle …”
“Principle?” Gage summoned a sardonic smile. “Like cutting your nuts off?
“I know you, Chuck. If Kilcannon can give you something positive to talk about, you’ll be running around the country to all of your contributors, saying you need money and votes so your noble but embattled president can beat old Mac Gage and all those right-wing troglodytes who whore for gun nuts and polluters and tent-show revivalists. Why, it might even work.” Gage lowered his voice. “It might even get you the majority. But not if you shill for Caroline Masters.
“She’s Rosemary’s baby, Chuck. The President needs to drive a stake through her heart. Tell him that.”
Hampton put on his glasses, then placed his hand to his own heart. “I’m deeply touched, Mac. You’re worried about me. Never in our years together have I felt such compassion.”
Gage covered his own tension with brisk sobriety. “I’m worried about us both,” he answered. “We’ve got business to do, and Caroline Masters is in the way. It’s your job to help get rid of her.”
“He’s not sure about Palmer yet,” Chuck Hampton told the President. “That may be why he wants her gone without a fight.”
Kerry studied him, letting the silence build long enough to put the Minority Leader on edge. “So I’m supposed to get him off the hook.”
Quickly, Hampton glanced at Clayton and the Vice President. “Where does Palmer stand?” Ellen asked.
“I don’t know yet,” the President answered. “But I will.”
His tone suggested that Palmer was his responsibility, and no one else’s. “If you’re going to withdraw her,” Hampton inquired with care, “does Palmer matter? And why do you think you can hold him now?”
This question was more than rhetorical, Kerry knew; Hampton sensed that the President and his potential rival had an arrangement, and he wanted to know what it was. Instead of answering, the President asked, “How was Gage?”
Hampton pondered this. “At his best—confident, relaxed, expansive. Which means he’s worried, too. He thinks he’ll win, but he isn’t sure he wants to find out what’ll happen along the way.”
“He’ll come out against her,” Kerry predicted. “Today. That way, if I take her out, he’ll get to claim the credit with his people, but won’t look so antiwoman to everyone else. It’s Gage’s favorite tactic: getting others to screw themselves on his behalf …”
“It’s not screwing yourself,” Clayton interposed. “Masters already did that.”
This bluntness, which only Clayton used with the President, cast the others into silence. “You admire her courage,” Clayton continued. “And her opinion—as legal craftsmanship— confirms you weren’t off base on that score. But Gage is right: no one needs this. Especially us.
“You’ve got a big agenda, Mr. President, and you just squeaked through last November. Most people agree with Gage that parenthood is sacred, and late-term abortion tantamount to murder.” Clayton’s tone became satiric. “I can’t wait to see us selling that one. What’s our slogan going to be: ‘It’s not a baby ’til it’s born’?”
“Unless Mom and Dad say it is.” Kerry murmured this, as if to himself. “Which is particularly touching when Dad’s the baby’s father.”
“The ‘incest defense,’” Clayton retorted with repressed exasperation. “This isn’t about the merits, Mr. President, or morality. The moral—and practical—thing to do is to preserve your political capital for things like health care, gun control, campaign reform, and saving social security. They’re why you’re here, not late-term abortion.” Clayton stood. “It’s bullshit to say if we fold on this, we fold on everything. And where do the pro-choice folks have to go—Mac Gage? Even they’ll understand the problem …”
“What exactly,” Ellen Penn interjected, “are they supposed to understand? That Caroline Masters applied Roe, and followed the law? That if Gage and the right wing back us off, Roe isn’t the law anymore? That we’re only here because pro-choice women voted for us?” Sitting on the edge of the couch, Ellen leaned toward Kerry, her dark eyes and quick speech underscoring her intensity. “She stood up for them, they’re telling me, and you should stand up for her …”
“This isn’t about her,” Clayton objected. “It’s about this President. She’s at his disposal, not the other way around.”
Silent, Kerry turned to Ellen: Clayton’s point was essential, and he wished her to remember that. “I understand,” she told him with quiet urgency. “But the pro-choice groups will work their asses off for you. They’ll lobby senators, hold rallies, run ads if you want them to …”
“All of which,” Clayton told Kerry, “is a mixed blessing. A whole lot of people hate them, and they can’t get you the votes you need. Only you can.” Pausing, Clayton glanced at Hampton. “I mean no disrespect to Chuck. But even the senators on our side will have a price—a worthless dam, a crop subsidy, some hack they want to be a judge, or maybe ambassador to New Guinea.
“Even that won’t be enough. To keep all the Democrats in line, you’ll have to mobilize the civil rights groups, the trial lawyers, the AFL-CIO.” Clayton began pacing. “The fucking trial lawyers,” he concluded, “will want the right to sue everyone for everything. And I can’t wait until you call Sweeney at the AFL-CIO.”
Despite, or perhaps because of, Clayton’s vehemence, Kerry found himself smiling. “I can’t either. So tell me what he’ll say.”
“Something like ‘If you think most of my members give a damn about this crap, you’re nuts. So why should I squander all the juice we earned last fall supporting some embattled moron of a senator by pressing him for a vote as dumb as this?’”
“Oh,” Kerry answered quietly, “I think he’ll be more respectful. The last risk he took was coming out against me in the primaries.”
To the President’s satisfaction, Chuck Hampton shifted uncomfortably in his chair. “Sweeney,” Clayton countered, “was there for you in the general election. To support you on Masters—if that’s what you want to ask him for—he’ll need to go back to his people with something big. Like that he owns you on free trade.” Clayton stopped pacing. “And these,” he finished, “are your friends.”
Kerry smiled grimly. “Which brings us to Palmer, I suppose.”
“It surely does. You need fifty-one votes, Mr. President. Even if you and Chuck could hold every Democratic senator, that only makes forty-five. At least six Republicans will have to defy Macdonald Gage, and the price for that will be high— compromises on a lot of your agenda, and weapons built in their home states that the Pentagon doesn’t want, until we’ve got billion-dollar submarines cruising the Great Salt Lake.
“You’ll be paying on the installment plan, forever. And every favor done for your enemies—even Palmer—will alienate your supporters. All for the judge who created this mess.”
With this, Clayton fell quiet, as did the others. Kerry read their faces: Clayton’s concerns were deeply sobering, as was the task before them—determining the fate of a Supreme Court nomination and, by extension, the character of a new administration.
Facing Clayton, Kerry spoke as though they were alone. “So you say just let her withdraw. Quick and clean, with a statement of mild regret, and deep appreciation of her decision to spare the country such trauma.”
“That’s the best way,” Clayton answered imperturbably. “Two days a
nd it’s over. The only other rational choice is to leave her hanging there, and lose.”
Kerry smiled, but only with his eyes. “Don’t withdraw her,” he said flatly. “Just pass the word that we’re not playing to win, and that our friends can vote their own self-interest. That way we don’t mortgage ourselves, but don’t look quite so craven in public. And we can say it’s Gage, not us, who’s taken down a qualified and courageous woman.”
Clayton shrugged. “At least there’s something to recommend it. Trying to salvage this has nothing.”
“Nothing?”
“About as much as Vietnam. A bloody fight, waged by green troops, with no simple way out. Until you’ve completely lost perspective.” Clayton’s tone was soft and serious. “We’ve all seen it happen—people so caught up in winning the presidency that they forgot where power ends, and arrogance begins. I don’t want that to be our story.”
Kerry was silent: because others were present, Clayton had not mentioned the worst of it—not Caroline’s secret, but Kerry’s own. Yet Kerry could read his thoughts.
“Don’t do this,” Clayton told him. “There’s no good end to it.”
TWO
CAROLINE MASTERS gazed out her penthouse window at the jagged San Francisco skyline.
The late morning sun seeped through haze and fog, and the towers of the city seemed distant, a mirage. Her apartment was quiet, and she was alone; the only sign that she was the center of a national furor came from the drone of a cable news reporter.
“At this hour, demonstrators have already begun gathering outside the White House. Press Secretary Kit Pace has told us that Judge Masters retains the President’s confidence, but that he will have no further comment until he studies the opinion.”
Which meant that she was hanging by a thread. Perhaps she should depart with dignity, by insisting on, rather than merely offering, her withdrawal. For that, Kerry Kilcannon no doubt would be grateful.
Protect and Defend Page 43
