Will God kick thinkin’ in the pants? Charlene Moore thought.
He would have to if she was going to win this argument. But she had truly left it to him. She no longer cared about winning the case for herself. It was for Sarah Mae. And Aggie.
The judges – two men, one woman – sat like statues waiting for Charlene, as petitioner, to make her case.
“May it please the court,” she began, “I am Charlene Moore on behalf of the petitioner, Sarah Mae Sherman. We are here to ask for a reversal of the district court’s decision to – ”
“Counsel,” a judge interrupted. It was Foster Lucas, a Clinton appointee. “Isn’t the issue here one of changing the law? The district court judge, as I read the record, interpreted the statute. Are you here to tell us he was wrong?”
Bam. Right to the point. Charlene looked up from her carefully organized notes.
“We are saying he was wrong,” she said. “In interpreting the statute too strictly, the very intent of the law was frustrated.”
“And you can tell us the intent of the law?” Lucas said.
“Yes, Your Honor.”
“How, pray tell?”
Pray and tell, Charlene thought. “It is clear from the text itself what the intent is. The law means to protect pregnant women. That protection means nothing without full disclosure of all medical and psychological effects of a – ”
“Let me stop you there, Counsel,” said the woman. She was a Reagan judge, Deena Lynn Caplin. “Where is the psychological aspect of this? What sort of harm are we talking about?”
“Your Honor, when a woman terminates a pregnancy, she is taking a life. She is – ”
“That is a religious statement,” Foster said. “It has no bearing on this issue.”
“I disagree, Your Honor. It is not a religious statement. It is a medical one. Despite how the fetus is characterized, all sides must agree we are dealing with a living thing.”
“But the question of humanity,” Foster said, “is one for philosophers or theologians. Not judges.”
“But the state of mind of Sarah Mae Sherman is the issue,” Charlene said. “She believes her baby existed at one point in time. Now, the baby does not exist. That has had a devastating impact on her because the respondents did not disclose all of the relevant information about fetal development. They should have, because it impacted her mental state. Thus, they violated the intent of the informed consent statute. That is why I am asking this court to remand this case for trial.”
And so it went for twenty more minutes. Charlene clearly read Foster. He was opposed to her position. Judge Caplin seemed conflicted. She was most troubled by the silence of the statute on the subject of psychological harm.
The third judge, Gregory Knight, was another Clinton appointee, but something of a maverick. At least that was his reputation. Charlene could not read him at all, and he asked no questions.
Then it was Larry Graebner’s turn to argue. As he spoke, Charlene noticed the judges asked no immediate questions. Apparently, they were deferring to the great legal mind of the Ivy League. Graebner’s argument was no different than that in his brief. But at the very end he dropped his bomb.
“Finally,” Graebner said, “my opponent has tried to open the door on the matter of the humanity of the fetus. This is a code word for personhood, Your Honors, something the anti-abortion forces have been attempting to get the courts to rule on ever since Roe v. Wade. Well, I ask this court not to take the bait. A decision to do so will just add another layer of chaos to what should be a settled area of the law. This case never should have gotten to this point. I urge you to affirm the decision of the district court.”
Charlene wanted to shout. She wanted to scream. She wanted to get up and ask if all sanity had been removed from the justice system. This case was about the nature of Sarah Mae’s harm, and what she was not told about her pregnancy. You could not separate this issue out, like some chef dividing egg whites.
But she did not shout. Instead, she fought to remain calm as the judges filed from the bench.
And then she saw one of them, Knight, glance down at Larry Graebner and smile.
3
Millie found Riley in his chambers. “Can we talk?”
Riley motioned for her to enter. She did and closed the door, as his two law clerks watched with somewhat bemused expressions.
“I guess I owe you an explanation,” she said.
His eyes were indeed full of expectancy, though it was of an angry sort. “I guess maybe you do.”
“I did a lot of thinking this summer,” Millie said. She paused, looking at him, wondering if he might say something. Some word of encouragement perhaps. He was as silent as stone. “I found occasion to reassess a number of things,” Millie continued.
“Apparently so,” Riley snapped.
She reached down into her heart, heavy inside her like a wet rag, for the affection she had for him. “Tom, I value our friendship. I always have. I don’t want anything to interfere with that.”
“We’re talking justice to justice now. Put personalities aside.”
“All right.”
“What on earth has caused you to change your mind so radically on the Establishment Clause?”
With her palms Millie smoothed her skirt. “I thought it through again, Tom. Believe me. I’ve spent weeks poring over the cases.”
“But you’re a ten-year veteran, with a record that is clear and consistent. You don’t just wake up one morning and say, ‘Gee, I guess I’ve been wrong all these years.’ Do you?”
“Perhaps I do.”
Riley waited for an explanation.
“Tom, I have become a Christian.”
The austere silence of Riley’s chambers seemed suddenly ominous. Only the muted whir of the air system tethered Millie to an outside reality. The old justice sat frozen for an extended moment, and then said, “This is rather stunning news.”
“I know. I – ”
“Christianity? At your age?”
“It’s not an age issue,” Millie said. “It is a matter of seeing things in a different way.”
“But why now?”
“I suppose the accident started it. It caused me to reflect on things. And on it went from there.”
“Your mother dying, which we were all sorry to hear. Maybe that had something to do with it.”
Millie nodded. “No doubt.”
“Have you thought,” Riley said, “that such a traumatic event may have…” He waved his hand in the air, diplomatically.
