Free Protect and Defend by Richard North Patterson Page A

black walnut desk, head jutting forward like a prow. “If our commitment to pro bono weren’t real, Sarah, you wouldn’t have spent so many hours at it. That work is financed by the same partners who have principled reservations about
your
principles—as well as those who, foreign as it may seem, think they have the ‘right’ to keep you from offending clients.”
    “The partners who believe in the Protection of Life Act,” Sarah retorted, “will be adequately represented by the United States Department of Justice. And the ones who worry about offending clients should ask themselves, ‘Which clients?’”
    Nolan’s gaze became a stare. “What do you mean?”
    Sarah hesitated, preparing herself. In the respectful tone of a subordinate, she said, “I’m concerned about clients, too. So I asked Pat Kleiner and some of the other women partners what the effect would be of turning down this case …”
    “How would
that
get out?”
    Sarah shrugged. “Who knows? But the
American Lawyer
has been all over us since we supposedly fired a female associate for an affair with a married partner. Two weeks ago— when they pointed out that we’re the only firm in San Francisco still paying for its partners’ memberships in clubs that exclude women—they brought that story up again. That makes us vulnerable to more bad publicity, and to questions from some of our clients.”
    Beside her, Scott Votek shifted in his chair. It was a reminder, if Sarah needed it, of the risks she was running. “What clients,” Nolan asked, “do you suppose would care?”
    “Our three biggest clients in Silicon Valley have politically active women as General Counsel. According to Pat, in the last year those three women sent us intellectual property and securities fraud cases generating twenty-six million in fees. Iworked closely with the General Counsel of Worldscope on two of those cases, and she’s deeply involved with pro-choice issues.”
    Nolan had erased all expression from his face; only his eyes, dark and unblinking, betrayed displeasure. At length he said, “Let’s go through the basis for your challenge.”
    “It rests on the right to privacy,” Sarah said promptly. “
Roe v. Wade
extended that right to include a woman’s right to choose. But the Supreme Court’s 1992 decision in
Casey
also made it clear that Congress can limit abortion after ‘viability’
unless
it is necessary to protect the life or health of the mother. In 2000, the Court reaffirmed that decision in
Stenberg v. Carhart
.”
    Pausing, Sarah saw that Nolan listened keenly. “The big controversy,” she continued, “is whether ‘health’ includes
mental
health. A companion case to
Roe, Doe v. Bolton
, suggests it does. But pro-life advocates argue that this would legalize abortion on demand right up to the event of birth—that ‘mental health’ is simply an excuse.”
    Sarah sat back. “That’s at the heart of Mary Ann Tierney’s dilemma. The Supreme Court has never clearly resolved whether ‘health’ includes threats to
mental health
—such as forcing a fifteen-year-old girl to have a baby without a brain. Or even whether
physical health
includes a small but measurable chance of not having further children.”
    Nolan raised his eyebrows. “What about all the cases on ‘partial birth’ abortion? Don’t
they
affect this?”
    Sarah shook her head. “In
Stenberg v. Carhart
, Nebraska tried to ban a specific procedure it called ‘partial birth abortion.’ The Supreme Court overturned the law because it applied to both pre- and postviability procedures; because the particular procedure outlawed was too vaguely defined; and because it provided no exception for the mother’s health. The Protection of Life Act is Congress’s first attempt to get around
Carhart
.
    “Until now, no statute has given a parent the right to flat-out prevent a minor’s abortion by any technique, even after viability, unless there’s a narrowly defined medical