The Washington PostDemocracy Dies in Darkness

Abortion rights protesters have no more good options

Protesting at the homes of Supreme Court justices is a dubious tactic born of understandable frustration

A protester marches outside the home of Supreme Court Justice Brett M. Kavanaugh during a protest for abortion rights. (Craig Hudson/For the Washington Post)
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In the aftermath of the Supreme Court’s leaked draft opinion overturning Roe v. Wade, protesters gathered this past weekend outside the Basilica of St. Patrick’s Old Cathedral in Manhattan — “They say no choice, we say pro-choice!” — and faced a heckler.

“You have no choice,” replied the man from his wide-stance perch atop the church steps. He was wearing a baseball cap and a sweatshirt bearing the insignia of the New York Fire Department. “Not your body, not your choice,” he said. “Your body is mine. And you’re having my baby.”

The most shocking thing wasn’t what the man said but how he said it. He did not seem angry. He was not brandishing the Book of Revelation. His tone was civil, even friendly. His posture, casual. There was a real joie de vivre to this fella’s jackwagonry. His delivery was akin to that of an office worker who had hit the lottery jackpot and was now cheerfully trading barbs at his going-away party. It was the voice of someone who has all the winning numbers.

The protesters sounded like those who had lost. “They say no choice, we say pro-choice” doesn’t have the oomph you wish it did when the “they” in question is the Supreme Court plus enough conservative U.S. senators to prevent the passage of national abortion rights legislation. The Women’s March held in response to Donald Trump’s 2016 election felt like an empowering call to action. The marches now feel like rearranging protest signs on the Titanic.

This is what the beginning of the end of the Roe era feels like

The most controversial protests of the past week have taken place outside personal residences of conservative justices: Brett Kavanaugh and John Roberts over the weekend, Samuel Alito on Monday. And while some Republicans seem to regard these gatherings as a kind of lawless barbarianism — “mob violence” is how Sen. Ted Cruz (R-Tex.) described it — they might be better understood as expressions of just how helpless the abortion rights movement is right now.

The impetus to go to Supreme Court justices’ private homes speaks to how truly strange this time is. The draft opinion has been leaked, but the decision has not been made. The rights may disappear but they are still there, for now. And meanwhile, there is no easy mechanism for protesters to directly redress their anguish and disapproval with the justices. They can’t express it at the ballot box. They can go to the Supreme Court building, but as of last week there is an eight-foot-tall fence around the building, underlining the bleak facts of the matter: They won’t see you, they won’t hear you.

To the suburbs the protesters have gone, then — the tony streets of Chevy Chase, Md., and Northern Virginia.

Here, too, the protesters are limited. In Montgomery County, there’s an ordinance against picketing at people’s homes; protesters can march in a residential area, but they’re not supposed to stop “at any particular private residence” unless it’s the occupant’s sole place of business or a public meeting is being held there. There’s also the matter of the U.S. Code, Title 18 of which prohibits picketing or parading outside of a “residence occupied or used by [a] judge, juror, witness, or court officer.” It’s a punishable offense.

How many people expect that these protests will help their cause? I think we are safe in assuming Alito is fully committed to overturning Roe; he wrote the draft opinion. Roberts did not appear to be planning to vote with Alito and might be angling for a middle way. Of the five justices expected to vote for overturning Roe v. Wade, Kavanaugh is thought of as the most moderate and therefore swingable. But the leaked draft has put him in a weird spot. The court is supposed to be unswayed by public opinion. How would it look to reverse his position on a major case because several dozen protesters yelled “My body, my choice” in the direction of his front porch?

If the goal were truly to change Kavanaugh’s mind, the best move is probably one that has nothing to do with protests, but rather a nonconfrontational negotiation based on shared interests, set up by moderates or fellow conservatives. Which is to say: Someone should load up Chief Justice Roberts and former justice Anthony M. Kennedy (Kavanaugh’s mentor) with a bottle of really good Scotch and some moderate talking points, and have them come get their boy.

Where does that leave the protesters? On the other side of an eight-foot fence — literally or metaphorically.

Showing up uninvited to the neighborhoods where Supreme Court justices live might not be the best thing to do, but you understand the helpless frustration that led them there.

I keep thinking of an interview with one of the protesters that appeared on local news. “You don’t get to take away my bodily autonomy and get to enjoy your Saturday at home,” the woman said. “You can do one or the other.” Why should the homes of justices be protected by the right to privacy, if the uteri of women are not? she seemed to be saying. The laws and norms that insulate the judiciary from political pressure exist for good reasons.

And so do the laws and norms that protect the right of a woman to choose abortion.

The man on the steps of St. Patrick’s Old Cathedral was a caricature of every feminist’s worst nightmare: smug, jovial in his subjugation.

The Supreme Court draft opinion was staid, footnoted, 98 pages’ worth of legalese that built an argument, brick by brick, outlining how women’s rights should be demolished, brick by brick.

The infuriating thing is that there is no good comeback to either of them, because they are both saying the same thing, and the thing they are saying is true: Not your body. Your body is mine. You have no choice.