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The Knockout Punch
Summer finally came at the end of July that first year of the Bush administration, the kind of summer Paul Eppinghaus had come to expect in Baltimore. Hot, humid, uncomfortable. Overwhelming, really. For a week it was like that, without any relief, and Eppinghaus holed up in the airconditioned Eisenhower Library at Johns Hopkins researching Amerigo Vespucci to see himself through, and he went more frequently to the athletic club to sweat and shower, sometimes twice and three times a day.
One day during the heat wave when Eppinghaus pulled into the athletic club's parking lot and tried to remember what day it was; he could not recall the date. Just out of reach behind the wall of memory. He knew it was Tuesday, but he did not know whether the month was July or August, let alone the date. All he knew was that it was the eighteenth day of Shelley's menstrual cycle.
For the past several months, the Eppinghauses had been trying to conceive another child to go along with their ten-year old daughter Betsy. Sex for the Eppinghauses had ceased to be a pleasurable privilege of marriage but a duty of procreation, and religiously, between the tenth and seventeenth day of Shelley's cycle, they plugged away at it as frequently as circumstances permitted, usually planting four to six seeds during the period, with Shelley achieving one leisurely orgasm among them, the rest being a matter of grinding and friction and a squirt of semen. They had just gotten through the most recent "fertile period" the evening before, Eppinghaus having coaxed his penis into a semi-tumescence that barely permitted penetration. Of course, they always did it in the missionary position during procreative sex to facilitate the journey of the sperm up the birth canal to fertilize the egg. They even propped Shelley's ass up with pillows so it could flow down into her.
But so far Shelley had not become pregnant. Each month when the bleeding began Eppinghaus felt as though he had failed -- a new variation on the old insecurity about being inadequate in bed -- and he considered making an appointment with a fertility specialist. But what could a specialist do? Discover that Eppinghaus' sperm count was low? Prescribe fertility drugs to Shelley to stimulate hormone production? Then they would run the risk of having quintuplets, a litter like a hamster's or a rabbit's. Or maybe they could consider the in vitro option, starting a sibling for Betsy in a petri dish and transferring the embryo to Shelley's uterus. But the process was risky and expensive, and there were no guarantees.
Shelley did not seem to mind that she was not getting pregnant. Her memories of pregnancy and childbirth were not her fondest. If they had another baby, fine. If they didn't, that was okay, too. Both Paul and Shelley were on the downside of thirty, their fortieth birthdays looming ominously on the horizon.
Eppinghaus put on his running clothes and shut his locker, and he stopped in the men's room before running his five miles around the track. Gene Lipschitz stood at the second of the three urinals, stooped forward and looking down. Eppinghaus nodded at him and stopped at the first urinal. Dr. Ralph Connors came in behind him.
"Hey, Gene!" Doc said cheerily. "What's up?"
"Same old shit."
"Yeah, and it never gets any better," Doc said, going past the two men to the unoccupied urinal.
Gene grabbed the flush handle and jerked it toward him. He stepped away as the water rushed noisily down the porcelain urinal. "Well, you can always hope," he said, moving to the door.
"Yeah, I guess," Doc called to his retreating figure.
Eppinghaus wondered if this had been some sort of metaphysical, existential conversation, an analysis of the human condition. Or did it refer to events unknown to Eppinghaus but shared by Doc and Gene? Gene's health, for instance, or some legal matter. Or was it all just verbal farting, bathroom banter?
When he went out into the locker room, Eppinghaus found Lipschitz standing before the coke machine, looking at a newspaper advertisement for a breakfast cereal called Heartwise. "God damn it," he muttered, irritated. "Next thing you know they'll come out with a breakfast cereal called Eternal Life or Fountain of Youth or Cancerfree or some other blatant shit like that."
"I'll have a bowl of Some Other Blatant Shit Like That," Dan Sweeney said, clapping Gene on the back as he went past him. "Slice a banana into it while you're at it."
Sean McKechnie, the gimp-legged lawyer, shot a malevolent glance at Sweeney as he went out the door. The superserious McKechnie had taken a strong dislike to the clowning Sweeney from the start of their acquaintance. He found Sweeney's jokes puerile and offensive, and he always cut him in conversation.
When Eppinghaus completed his run he returned to the men's locker room. In the steamroom that day the discussion revolved around the Webster abortion decision the Supreme Court had handed down several weeks earlier, a favorite topic among the lawyers, naturally.
As usual, Gene Lipschitz held court from his chaise lounge in the middle of the steamroom. His eyeballs seemed to ossify with objectivity, the quintessential, marmoreal look of "hard reality," the look of a combatant who understands he must either beat his foe or be beaten. His opponent was Sean McKechnie, sitting on one of the aluminum folding chairs with his shriveled left leg slung over his right knee like a used dishtowel over a towel rack. The leg seemed to be some sort of birth defect; it had simply never developed. Both men, panting with contention, seemed to Eppinghaus like boxers in their corners between rounds, swathed in towels and streaming with sweat.
"The Supreme Court uses one of two tests to decide if a state has the Constitutional power to limit the liberty of individuals in order to pursue a collective policy or government objective," Gene was lecturing when Eppinghaus entered the moist, hot atmosphere of the steamroom. Eppinghaus sprawled his tired limbs over the aluminum arms of a vacant folding chair, like an octopus draping its tentacles over a clump of rock. "That's what they call the 'compelling interest' test they used in Roe Versus Wade, where the law in question has to protect some important state interest, like preventing the abortion of a viable fetus, in order to take away some personal liberty. Then there's the 'rational relationship' test, the weaker of the two, where the policy in question has to be deemed 'valid,' 'legitimate,' and a rational connection has to be demonstrated between limiting personal liberty and advancing the policy, through the legislation in question."
"Yeah, that's right," McKechnie said in a tired tone, as if to say "everybody knows that," fighting out from under Gene's lecturing manner, which seemed to put him at a disadvantage, and jabbing back with his own swift assertions. "And the Court used the 'rational relationship' test in Webster, but they did it for a reason!"
"It's a weak God damn argument, and you know it, Sean!" Gene turtled his massive head into his neck like a crouching fighter protecting himself. The snow white billows of his hair had wilted in the steamroom and lay in seaweedy licks around his skull. "You can show any state legislation is related to some legitimate state goal. You could show how banning pornography is in the state's best interest, but it violates the First Amendment. Same with burning a flag."
"You know God damn well Rehnquist had to compromise with O'Connor. She's not going to overrule Roe Versus Wade just yet, even if she does help make up the conservative majority on the Court. She even criticized Rehnquist for saying too much about Roe Versus Wade in this case as it is. Rehnquist couldn't use the compelling interest test without risking O'Connor's support. She wouldn't have gone along." Sean seemed to dance about the older man with a greater agility, but Gene's eyes were alive with the challenge.
"And Scalia said it was irresponsible for the Court not to overrule Roe Versus Wade then and there. The opposite end of the conservative spectrum."
"First time Dan Quayle heard about Roe Versus Wade he thought it was an argument about the best way to cross the Potomac," Dan Sweeney said, grinning. He had just come in from his own run. Everybody ignored him.
"O'Connor's the key figure in determining abortion cases. Rehnquist, White and Kennedy are like the three stooges," Gene observed. "Scalia's even more conservative than they are. I'm glad we've got a woman's point of view represented on the Court, even if she is conservative." Gene had a daughter who had recently passed the bar exam in New Jersey. She had joined a firm in Trenton. Gene often boasted about her, a fond, doting father.
"Roe Versus Wade said the state has a 'compelling' interest in protecting viable fetuses from being negligently aborted," Sean said, getting to his main point. He sounded bored; this was a strategy he used when he wanted to make a point -- to assume what he said was a prosaic fact. An attorney's tactic. A lawyer's bob and weave. "Rehnquist was right when he said he didn't see why the State's interest in protecting potential human life should come into existence only at the point of viability. If the State has a compelling interest in protecting the fetus after viability, it should be just as compelling before viability."
"It follows logically, sure, and that's what the right-to-lifers say, but you know as well as I do that abortions are gonna continue, and no Supreme Court ruling's gonna change that. But are they gonna be safe operations?"
"I'm just saying this 'viability' stuff leaves a lot of room for interpretation. Scalia pointed out that the word means 'possible,' and he criticized O'Connor for talking about 'possible viability.' It's like saying a possible possibility."
"Medically and legally the term refers to physical development that makes survival possible, mainly lung capacity. Am I right, Doc?"
Doctor Ralph Connors looked a little miffed at being dragged into the argument as a sort of prop to defend Gene with his "expert testimony," but he complied anyway. "Only about half a percent of the one and a half million abortions performed annually go against the Roe Versus Wade demand that they occur during the first trimester, and a lot of those are medical emergencies," he said, nodding but giving Gene a sharp look.
"Still, if the state's compelling interest is in potential life --"
"Then why not ban in vitro fertilization and contraceptives? Masturbation and menstruation? They all circumvent potential life," Gene interrupted. He seemed to have Sean on the ropes. "Besides, to get back to my original point, what I'm saying is that Rehnquist used the 'rationality test' on purpose, for his future goals; he didn't try to show how his position was consistent with judicial precedent, the way they usually do -- eye-eee, Roe Versus Wade -- on purpose, so he could set the stage for undermining it and eventually overturning it." Gene's massive head turned sagely about the steamroom, the protruding eyeballs exuding an almost menacing triumph.
"No shit, Sherlock," Sean said, a desperate attempt to defeat Lipschitz with ridicule, a tactic which everybody saw for what it signified: Gene was winning the argument.
"Sure, everybody in the legal community sees that," Gene said, his tone patronizing. "The question is, how's O'Connor gonna react? She's already on record saying the states can't put 'undue' burdens on abortions. Now what does that mean? What's an 'undue' burden?"
"If you look at Rehnquist's decision, you'll see what he's really trying to do, Gene," Sean said. "'The goal of Constitutional adjudication is to hold true the balance between what the Constitution puts beyond the reach of the democratic process and what it does not,' or something like that. In other words, he wants to return the power of deciding on abortions back to the people, through their elected representatives. The implication is that Roe Versus Wade didn't strike the proper balance, and the people have to decide on it; it's an issue the people have to decide democratically. There isn't some 'fundamental right' to an abortion. Period."
"Wait, wait, wait," Gene said. "Hold on a second. All that does is give the impetus to private interest groups who concentrate on the single issue to get their men elected. So the right-to-lifers go out and beat the bushes for their man. and the pro-choice people do the same, and don't look now, but the pro-choice folks are leading in the latest opinion polls. They're the majority, Sean, not the anti-abortion lobby."
"It's the tyranny of the majority," Eppinghaus put in. All through the discussion he had been reflecting on the irony of a late period. Formerly, when he and Shelley were college students in Ann Arbor, a late period had been cause for alarm, and talk about abortion and effective birth control methods. Now, a late period would be a source of joy to them.
"Removing Constitutional protection to promote 'democratic' decisions brings up a more fundamental issue," he continued. "Since the Enlightenment there have been two views of democracy. The majoritarian concept that Rehnquist claims to advocate is the majority-rules view, which is fine when you're electing people to office. The other is the communal view, which says that democracy is government of the people as a whole. This means a system of rights that guarantees each individual's integrity to make decisions, to have control over choices. This comes straight out of the American Revolution, and the right to privacy comes straight out of this conception of democracy."
"That's what I mean, Sean," Gene said, coopting Eppinghaus the way he had Doctor Connors. "You have to balance the relentlessness of pure logic with the Constitutional guarantee of a right to privacy."
"Oh, bullshit!" Sean glared at Eppinghaus as if to say "Et tu, Brutus?" He felt betrayed on all sides. Eppinghaus had a casual acquaintance with Sean McKechnie that was like an unspoken complicity of dads, since the day he ran into Sean at Kids R Us buying shoes for his two daughters. Eppinghaus and Shelley had been there getting clothes for Betsy. "Don't you just love it?" Sean had gushed, and ever since then there had been this private connection between them, never articulated but unmistakably having to do with the fact that they were both fathers of daughters. "This right to privacy shit is relatively new, and the Court's starting to take a harder look at it. The Court didn't even recognize a right to privacy until the late nineteenth century, not even a hundred years ago. Union Pacific Railroad Versus Botsford was the first case. Justice Brandeis coined the term in a Harvard Law Review proposal in the 1890's. They say it's guaranteed by the Fourteenth Amendment, but unless the Constitution specifically declares people have certain rights, in explicit, unambiguous language, I say you can't try and second-guess what the framers of the Constitution meant."
"That's what Bork said, and look what happened to him," Gene said. "Congress nailed his ass."
"Yeah, but the other Reagan appointees have a similar point of view. Remember a couple years ago when they said there wasn't a 'right to privacy' that protects homosexual activity in the Atlanta, Georgia, case where the police broke in on two guys having sex? They're gonna deliver a knock out punch to Roe Versus Wade by the end of the century, you just watch."
"Well, you want to talk about 'relatively new,' take a look at the abortion laws," Gene countered. "Restrictive criminal abortion laws didn't come into being until the late nineteenth century, either. And do you know why? Because the abortion mortality rate was high, because antiseptic techniques hadn't been developed, because it wasn't safe, in other words, and maybe because of the prevailing Victorian moral code. But now the procedures are safe, and it's certainly a lot safer to have them legal and regulated than taboo and performed in back alleys." Gene felt as though he had delivered the haymaker, as if he could see Sean reeling before his eyes on rubbery legs, collapsing to the canvas for a ten-count.
"Your parents might have aborted you if they'd known how you were gonna turn out," Dan Sweeney joked to Sean.
Sean evidently took this as a remark about his leg. He did not like the clowning Sweeney anyway, but this personal attack was too much.
"You son of a bitch," he said, standing up from his seat. He grabbed Sweeney around the neck. Sweeney was surprised and struggled impotently. The tiles were slippery, however, and McKechnie's legs flew out from under him. He landed squarely on his deformed leg on the hard tile floor. An audible snap split the air, and then his scream filled the tiny steamroom like a sonic boom, a noise too big for its space -- overwhelming, all-enveloping, a banshee wail. It gave Eppinghaus an immediate headache.
"Hey, you guys!" Gene barked, trying to restore order, and Ralph Connors took charge, putting a bunched up towel under Sean's head and keeping him flat on the floor.
"Paul, go call the club's physical therapist," he ordered, turning to Eppinghaus. "Tell him to get his ass up here right away. Tell him we might need an ambulance."
Naked, feeling vulnerable, Eppinghaus went out into the cold bright locker room, headed for the telephone. He had not felt such urgency and disorientation, he realized -- life as an exercise in improvisation -- since the night ten years ago when Shelley woke him out of a sound sleep to go to the hospital, the night Betsy was born. The irony did not escape him. He sighed audibly, reaching for the receiver.
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