OCTOBER TERM, 1992
Syllabus
BRAY ET AL.
v. ALEXANDRIA WOMEN'S HEALTH CLINIC ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 90-985. Argued October 16, 1991-Reargued October
6,1992Decided January 13, 1993
Respondents, abortion clinics and supporting organizations, sued
to enjoin petitioners, an association and individuals who organize
and coordinate antiabortion demonstrations, from conducting
demonstrations at clinics in the Washington, D. C., metropolitan
area. The District Court held that, by conspiring to deprive women
seeking abortions of their right to interstate travel, petitioners
had violated the first clause of 42 U. S. C. § 1985(3), which
prohibits conspiracies to deprive "any person or class of persons
of the equal protection of the laws, or of equal privileges and
immunities under the laws"; ruled for respondents on their pendent
state-law claims of trespass and public nuisance; as relief on
these three claims, enjoined petitioners from trespassing on, or
obstructing access to, specified clinics; and, pursuant to 42 U. S.
C. § 1988, ordered petitioners to pay respondents attorney's fees
and costs on the § 1985(3) claim. The Court of Appeals
affirmed.
Held:
1. The first clause of § 1985(3) does not provide a federal
cause of action against persons obstructing access to abortion
clinics. Pp. 267-278.
(a) Respondents have not shown that opposition to abortion
qualifies alongside race discrimination as an "otherwise
class-based, invidiously discriminatory animus [underlying] the
conspirators' action," as is required under
Griffin v.
Breckenridge, 403 U. S. 88, 102, in
order to prove a private conspiracy in violation of § 1985(3)'s
first clause. Respondents' claim that petitioners' opposition to
abortion reflects an animus against women in general must be
rejected. The "animus" requirement demands at least a purpose that
focuses upon women
by reason of their sex, whereas the
record indicates that petitioners' demonstrations are not directed
specifically at women, but are intended to protect the victims of
abortion, stop its practice, and reverse its legalization.
Opposition to abortion cannot reasonably be presumed to reflect a
sex-based intent; there are common and respectable reasons for
opposing abortion other than a derogatory view of women as a class.
This Court's prior decisions indicate that the disfavoring of
abortion, although only women
264
engage in the activity, is not
ipso facto invidious
discrimination against women as a class. Pp.268-274.
(b) Respondents have also not shown that petitioners "aimed at
interfering with rights" that are "protected against private, as
well as official, encroachment," a second prerequisite to proving a
private conspiracy in violation of § 1985(3)'s first clause.
Carpenters v.
Scott, 463 U. S. 825, 833. Although the
right to interstate travel is constitutionally protected against
private interference in at least some contexts,
Carpenters
makes clear that a § 1985(3) private conspiracy must be "aimed at"
that right.
Ibid. That was not established here. Although
respondents showed that substantial numbers of women travel
interstate to reach the clinics in question, it was irrelevant to
petitioners' opposition whether or not such travel preceded the
intended abortions. Moreover, as far as appears from the record,
petitioners' proposed demonstrations would erect "actual barriers
to ... movement" only intrastate.
Zobel v.
Williams,
457 U. S. 55, 60,
n. 6. Respondents have conceded that this intrastate restriction is
not applied discriminatorily against interstate travelers, and the
right to interstate travel is therefore not implicated.
Ibid. Nor can respondents' § 1985(3) claim be based on the
right to abortion, which is a right protected only against state
interference and therefore cannot be the object of a purely private
conspiracy. See
Carpenters, supra, at 833. Pp.274-278.
(c) The dissenters err in considering whether respondents have
established a violation of § 1985(3)'s second, "hindrance" clause,
which covers conspiracies "for the purpose of preventing or
hindering ... any State ... from giving or securing to all persons
... the equal protection of the laws." A "hindrance"-clause claim
was not stated in the complaint, was not considered by either of
the lower courts, was not contained in the questions presented on
certiorari, and was not suggested by either party as a question for
argument or decision here. Nor is it readily determinable that
respondents have established a "hindrance"clause violation. The
language in the first clause of § 1985(3) that is the source of the
Griffin animus requirement also appears in the "hindrance"
clause. Second, respondents' "hindrance" "claim" would fail unless
the "hindrance" clause applies to private conspiracies aimed at
rights constitutionally protected only against official
encroachment. Cf.
Carpenters. Finally, the District Court
did not find that petitioners' purpose was to prevent or hinder law
enforcement. Pp. 279-285.
2. The award of attorney's fees and costs under § 1988 must be
vacated because respondents were not entitled to relief under §
1985(3). However, respondents' § 1985(3) claims were not, prior to
this decision, "wholly insubstantial and frivolous,"
Bell v.
Hood, 327 U.
S. 678, 682683, so as to deprive the District Court of
subject-matter jurisdiction
265
over the action. Consideration should be given on remand to the
question whether the District Court's judgment on the state-law
claims alone can support the injunction that was entered. P.
285.
914 F.2d
582, reversed in part, vacated in part, and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J., filed a concurring opinion,
post, p. 287.
SOUTER, J., filed an opinion concurring in the judgment in part and
dissenting in part,
post, p. 288. STEVENS, J., filed a
dissenting opinion, in which BLACKMUN, J., joined,
post, p.
307. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN,
J., joined,
post, p. 345.
Jay Alan Sekulow reargued the cause for petitioners.
With him on the briefs were James M. Henderson, Sr., Douglas W
Davis, Thomas Patrick Monaghan, Walter M. Weber, and James E.
Murphy.
Deputy Solicitor General Roberts reargued the cause for the
United States as amicus curiae urging reversal. With him on the
brief were Solicitor General Starr, Assistant Attorney General
Gerson, Paul J. Larkin, Jr., Barbara L. Herwig, and Lowell v:
Sturgill, Jr.
Deborah A. Ellis reargued the cause for respondents.
With her on the brief were
Martha F. Davis, Sally F.
Goldfarb, John H. Schafer, and
Laurence J.
Eisenstein. Mr. Schafer argued the cause for respondents on
the original argument. With him on the brief were
William H.
Allen, Mr. Eisenstein,
Alison Wether field, and
Helen
Neuborne.*
*Briefs of
amici curiae urging reversal were filed for
American Victims of Abortion by
James Bopp, Jr., and
Richard E. Coleson; for Concerned Women for America by
Andrew J.
Ekonomou and
Mark N. Troobnick; for
Feminists for Life of America et al. by
Christine Smith
Torre and
Edward R. Grant; for the Free Congress
Foundation by
Eric A. Daly and
Jordan Lorence; for
The Rutherford Institute et al. by
John W Whitehead, Joseph P.
Secola, and
George J.
Mercer; for the Southern
Center for Law & Ethics by
Albert L. Jordan; for Woman
Exploited by Abortion et al. by
Samuel Brown Casey, Victor L.
Smith, and
David L. Llewellyn; for Daniel Berri-
266
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether the first clause of Rev.
Stat. § 1980, 42 U. S. C. § 1985(3)-the surviving version of § 2 of
the Civil Rights Act of 1871-provides a federal cause of action
against persons obstructing access to abortion clinics. Respondents
are clinics that perform abortions and organizations that support
legalized abortion and that have members who may wish to use
abortion clinics. Petitioners are Operation Rescue, an
unincorporated association whose members oppose abortion, and six
individuals. Among its activities, Operation Rescue organizes
antiabortion demonstrations in which participants trespass on, and
obstruct general access to, the premises of abortion clinics. The
individual petitioners organize and coordinate these
demonstrations.
Respondents sued to enjoin petitioners from conducting
demonstrations at abortion clinics in the Washington, D. C.,
metropolitan area. Following an expedited trial, the District Court
ruled that petitioners had violated § 1985(3) by
gan et al. by Wendall R. Bird and David J. Myers; and for James
Joseph Lynch, Jr., pro se.
Briefs of
amici curiae urging affirmance were filed for
the Attorney General of New York et al. by
Robert Abrams,
Attorney General of New York,
pro se, O.
Peter
Sherwood, Solicitor General,
Sanford M. Cohen and
Shelley B. Mayer, Assistant Attorneys General, and
Mary
Sue Terry, Attorney General of Virginia,
pro se; for the
American Civil Liberties Union et al. by
Judith Levin, Steven R.
Shapiro, John A. Powell, Burt Neuborne, and
Elliot M.
Mincberg; for Falls Church, Virginia, by
David R. Lasso;
for the NAACP Legal Defense and Educational Fund, Inc., by
Julius L. Chambers, Charles Stephen Ralston, and
Eric
Schnapper; for the N ational Abortion Federation et al. by
Elaine Metlin, Roger K. Evans, and
Eve W Paul; and
for 29 Organizations Committed to Women's Health and Women's
Equality by
Dawn Johnsen, Lois Eisner Murphy, and
Marcy
Briefs of
amici curiae were filed for the National Right
to Life Committee, Inc., et al. by
James Bopp, Jr., and
Barry A. Bostrom; and for George Lucas et al. by
Lawrence J.
Joyce and
Craig H. Greenwood.
267
conspiring to deprive women seeking abortions of their right to
interstate travel. The court also ruled for respondents on their
pendent state-law claims of trespass and public nuisance. As relief
on these three claims, the court enjoined petitioners from
trespassing on, or obstructing access to, abortion clinics in
specified Virginia counties and cities in the Washington, D. C.,
metropolitan area.
National Organizationfor Women v.
Operation Rescue, 726 F. Supp. 1483 (ED Va. 1989). Based on
its § 1985(3) ruling and pursuant to 42 U. S. C. § 1988, the court
also ordered petitioners to pay respondents $27,687.55 in
attorney's fees and costs.
The Court of Appeals for the Fourth Circuit affirmed,
National Organization for Women v.
Operation Rescue,
914 F.2d
582 (1990), and we granted certiorari, 498 U. S. 1119 (1991).
The case was argued in the October 1991 Term, and pursuant to our
direction, see 504 U. S. 970 (1992), was reargued in the current
Term.
I
Our precedents establish that in order to prove a private
conspiracy in violation of the first clause of § 1985(3),1 a
plain-
1 Section 1985(3) provides as follows:
"If two or more persons in any State or Territory conspire or go
in disguise on the highway or on the premises of another, for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws; or if two or more
persons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support
or advocacy in a legal manner, toward or in favor of the election
of any lawfully qualified person as an elector for President or
Vice President, or as a Member of Congress of the United States; or
to injure any citizen in person or property on account of such
support or advocacy; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or deprived
of having and exercising any right or privilege of a citizen of the
United
268
tiff must show,
inter alia, (1) that "some racial, or
perhaps otherwise class-based, invidiously discriminatory animus
[lay] behind the conspirators' action,"
Griffin v.
Breckenridge, 403 U. S. 88, 102 (1971),
and (2) that the conspiracy "aimed at interfering with rights" that
are "protected against private, as well as official, encroachment,"
Carpenters v.
Scott, 463 U. S. 825, 833
(1983). We think neither showing has been made in the present
case.
A
In
Griffin this Court held, reversing a 20-year-old
precedent, see
Collins v.
Hardyman, 341 U. S. 651 (1951),
that § 1985(3) reaches not only conspiracies under color of state
law, but also purely private conspiracies. In finding that the text
required that expanded scope, however, we recognized the
"constitutional shoals that would lie in the path of interpreting §
1985(3) as a general federal tort law."
Griffin, 403 U. S.,
at 102. That was to be avoided, we said, "by requiring, as an
element of the cause of action, the kind of invidiously
discriminatory motivation stressed by the sponsors of the limiting
amendment,"
ibid.-citing specifically Representative
Shellabarger's statement that the law was restricted "'to the
prevention of deprivations which shall attack the equality of
rights of American citizens; that any violation of the right, the
animus and effect of which is to strike down the citizen, to
the end that he may not enjoy equality of rights as contrasted with
his and other citizens' rights, shall be within the scope of the
remedies ... ,'" id., at 100 (emphasis in original), quoting Congo
Globe, 42d Cong., 1st Sess., App. 478 (1871). We said that "[t]he
language [of § 1985(3)] requiring intent to deprive of
equal
protection, or
equal privileges and immunities, means that
there must be some racial, or perhaps otherwise class-based,
invidiously
States, the party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or deprivation,
against anyone or more of the conspirators." 42 U. S. C. §
1985(3).
269
discriminatory animus behind the conspirators' action." 403 U.
S., at 102 (emphasis in original).
We have not yet had occasion to resolve the "perhaps"; only in
Griffin itself have we addressed and upheld a claim under §
1985(3), and that case involved race discrimination. Respondents
assert that there qualifies alongside race discrimination, as an
"otherwise class-based, invidiously discriminatory animus" covered
by the 1871 law, opposition to abortion. Neither common sense nor
our precedents support this.
To begin with, we reject the apparent conclusion of the District
Court (which respondents make no effort to defend) that opposition
to abortion constitutes discrimination against the "class" of
"women seeking abortion." Whatever may be the precise meaning of a
"class" for purposes of
Griffin's speculative extension of §
1985(3) beyond race, the term unquestionably connotes something
more than a group of individuals who share a desire to engage in
conduct that the § 1985(3) defendant disfavors. Otherwise,
innumerable tort plaintiffs would be able to assert causes of
action under § 1985(3) by simply defining the aggrieved class as
those seeking to engage in the activity the defendant has
interfered with. This definitional ploy would convert the statute
into the "general federal tort law" it was the very purpose of the
animus requirement to avoid.
Ibid. As JUSTICE BLACKMUN has
cogently put it, the class "cannot be defined simply as the group
of victims of the tortious action."
Carpenters, supra, at
850 (dissenting opinion). "Women seeking abortion" is not a
qualifying class.
Respondents' contention, however, is that the alleged
class-based discrimination is directed not at "women seeking
abortion" but at women in general. We find it unnecessary to decide
whether
that is a qualifying class under § 1985(3), since
the claim that petitioners' opposition to abortion reflects an
animus against women in general must be rejected. We do not think
that the "animus" requirement can be met
270
only by maliciously motivated, as opposed to assertedly benign
(though objectively invidious), discrimination against women. It
does demand, however, at least a purpose that focuses upon women
by reason of their sex-for example (to use an illustration
of assertedly benign discrimination), the purpose of "saving" women
because they are women from a combative, aggressive
profession such as the practice of law. The record in this case
does not indicate that petitioners' demonstrations are motivated by
a purpose (malevolent
or benign) directed specifically at
women as a class; to the contrary, the District Court found that
petitioners define their "rescues" not with reference to women, but
as physical intervention "'between abortionists and the innocent
victims,'" and that "all [petitioners] share a deep commitment to
the goals of stopping the practice of abortion and reversing its
legalization." 726 F. Supp., at 1488. Given this record,
respondents' contention that a class-based animus has been
established can be true only if one of two suggested propositions
is true: (1) that opposition to abortion can reasonably be presumed
to reflect a sex-based intent, or (2) that intent is irrelevant,
and a class-based animus can be determined solely by effect.
Neither proposition is supportable.
As to the first: Some activities may be such an irrational
object of disfavor that, if they are targeted, and if they also
happen to be engaged in exclusively or predominantly by a
particular class of people, an intent to disfavor that class can
readily be presumed. A tax on wearing yarmulkes is a tax on Jews.
But opposition to voluntary abortion cannot possibly be considered
such an irrational surrogate for opposition to (or paternalism
towards) women. Whatever one thinks of abortion, it cannot be
denied that there are common and respectable reasons for opposing
it, other than hatred of, or condescension toward (or indeed any
view at all concerning), women as a class-as is evident from the
fact that men and women are on both sides of the issue, just as men
and women are on both sides of petitioners' unlawful
demonstrations.
271
See Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833, 850
(1992).
Respondents' case comes down, then, to the proposition that
intent is legally irrelevant; that since voluntary abortion is an
activity engaged in only by women,2 to disfavor it is
ipso
facto to discriminate invidiously against women as a class. Our
cases do not support that proposition. In
Geduldig v.
Aiello, 417 U.
S. 484 (1974), we rejected the claim that a state disability
insurance system that denied coverage to certain disabilities
resulting from pregnancy discriminated on the basis of sex in
violation of the Equal Protection Clause of the Fourteenth
Amendment. "While it is true," we said, "that only women can become
pregnant, it does not follow that every legislative classification
concerning pregnancy is a sex-based classification."
Id., at
496, n. 20. We reached a similar conclusion in
Personnel
Administrator of Mass. v.
Feeney, 442 U. S. 256 (1979),
sustaining against an Equal Protection Clause challenge a
Massachusetts law giving employment preference to military
veterans, a class which in Massachusetts was over 98% male, id., at
270. " 'Discriminatory purpose,'" we said, "implies more than
intent as volition or intent as awareness of consequences. It
2 Petitioners and their
amici argue that the intentional
destruction of human fetuses, which is the target of their
protests, is engaged in not merely by the women who seek and
receive abortions, but by the medical and support personnel who
provide abortions, and even by the friends and relatives who escort
the women to and from the clinics. Many of those in the latter
categories, petitioners point out, are men, and petitioners block
their entry to the clinics no less than the entry of pregnant
women. Respondents reply that the essential object of petitioners'
conspiracy is to prevent women from intentionally aborting their
fetuses. The fact that the physical obstruction targets some men,
they say, does not render it any less "class based" against
women-just as a racial conspiracy against blacks does not lose that
character when it targets in addition white supporters of black
rights, see
Carpenters v.
Scott, 463 U. S. 825, 836
(1983). We need not resolve this dispute, but assume for the sake
of argument that respondents' characterization is correct.
272
implies that the decisionmaker ... selected or reaffirmed a
particular course of action at least in part 'because of,' not
merely 'in spite of,' its adverse effects upon an identifiable
group."
Id., at 279 (citation omitted).3 The same principle
applies to the "class-based, invidiously discriminatory animus"
requirement of § 1985(3).4 Moreover, two of our cases
3JUSTICE STEVENS asserts that, irrespective of intent or
motivation, a classification is sex based if it has a sexually
discriminatory effect.
Post, at 326-332. The cases he puts
forward to confirm this revisionist reading of
Geduldig v.
Aiello, 417 U.
S. 484 (1974), in fact confirm the opposite.
Nashville Gas
Co. v.
Satty, 434 U. S. 136 (1977),
cited
Geduldig only once, in
endorsement of
Geduldig's ruling that a facially neutral benefit plan is
not sex based unless it is shown that" 'distinctions involving
pregnancy are mere pretexts designed to effect an invidious
discrimination against the members of one sex or the other.''' 434
U. S., at 145 (quoting
Geduldig, supra, at 496-497, n. 20)
(internal quotation marks omitted).
Satty said that the
Court "need not decide" whether "it is necessary to prove intent to
establish a prima facie violation of § 703(a)(1)," 434 U. S., at
144, because "[r]espondent failed to prove
even a
discriminatory
effect," id., at 145 (emphasis added). It is
clear from this that sex-based discriminatory intent is something
beyond sexually discriminatory effect. The Court found liability in
Satty "[n]otwithstanding
Geduldig," post, at 328,
not (as JUSTICE STEVENS suggests) because
Geduldig is
compatible with the belief that effects alone constitute the
requisite intent, but rather because § 703(a)(2) of Title VII
has no intent requirement, 434 U. S., at 139-141. In his
discussion of the (inapplicable) Pregnancy Discrimination Act, 92
Stat. 2076, JUSTICE STEVENS acknowledges that
Congress
understood
Geduldig as we do, see
post, at 330-331,
and nn. 29-30. As for the cases JUSTICE STEVENS relegates to
footnotes:
Turner v.
Utah Dept. of Employment
Security, 423 U.
S. 44 (1975), was not even a discrimination case;
General
Electric Co. v.
Gilbert, 429 U. S. 125, 135
(1976), describes the holding of
Geduldig precisely as we
do; and
Newport News Shipbuilding &
Dry Dock Co.
v.
EEOC, 462
U. S. 669 (1983), casts no doubt on the continuing vitality of
Geduldig.
4 We think this principle applicable to § 1985(3)
not
because we believe that Equal Protection Clause jurisprudence is
automatically incorporated into § 1985(3), but rather because it is
inherent in the requirement of a class-based animus, i.
e.,
an
animus based on class. We do not dispute JUSTICE STEVENS'
observation,
post, at 326, that Congress "may offer relief
from discriminatory effects," without evidence of intent. The
question is
273
deal specifically with the disfavoring of abortion, and
establish conclusively that it is not
ipso facto sex
discrimination. In
Maher v.
Roe, 432 U. S. 464 (1977), and
Harris v.
McRae, 448 U. S. 297 (1980), we
held that the constitutional test applicable to government
abortion-funding restrictions is not the heightened-scrutiny
standard that our cases demand for sex-based discrimination, see
Craig v.
Boren, 429 U. S. 190, 197-199
(1976), but the ordinary rationality standard. See
Maher,
supra, at 470-471, 478;
Harris, supra, at 322-324.
whether it has done so, and if we are faithful to our precedents
we must conclude that it has not.
JUSTICE STEVENS and JUSTICE O'CONNOR would replace
discriminatory purpose with a requirement of intentionally
class-specific (or perhaps merely disparate) impact.
Post,
at 322-332 (STEVENS, J., dissenting);
post, at 350-354
(O'CONNOR, J., dissenting). It is enough for these dissenters that
members of a protected class are "targeted" for unlawful action "by
virtue of their class characteristics,"
post, at 352
(O'CONNOR, J., dissenting), see also
post, at 354,
regardless of what the motivation or animus underlying that
unlawful action might be. Accord,
post, at 322323 (STEVENS,
J., dissenting). This approach completely eradicates the
distinction, apparent in the statute itself, between purpose and
effect. Under JUSTICE STEVENS' approach, petitioners' admitted
purpose of preserving fetal life (a
"legitimate and
nondiscriminatory goal," post, at 323 (emphasis added)) becomes
the
"indirect consequence of petitioners' blockade," while
the discriminatory effect on women seeking abortions is now "the
conspirators'
immediate purpose," ibid. (emphasis added).
JusTICE O'CONNOR acknowledges that petitioners' "target[ing]" is
motivated by "opposition to the practice of abortion."
Post,
at 351.
In any event, the characteristic that formed the basis of the
targeting here was not womanhood, but the seeking of abortion-so
that the class the dissenters identify is the one we have rejected
earlier: women seeking abortion. The approach of equating
opposition to an activity (abortion) that can be engaged in only by
a certain class (women) with opposition to that class leads to
absurd conclusions. On that analysis, men and women who regard rape
with revulsion harbor an invidious antimale animus. Thus, if state
law should provide that convicted rapists must be paroled so long
as they attend weekly counseling sessions; and if persons opposed
to such lenient treatment should demonstrate their opposition by
impeding access to the counseling centers; those protesters would,
on the dissenters' approach, be liable under § 1985(3) because of
their antimale animus.
274
The nature of the "invidiously discriminatory animus"
Griffin had in mind is suggested both by the language used
in that phrase ("invidious ... [t]ending to excite odium, ill will,
or envy; likely to give offense; esp., unjustly and irritatingly
discriminating," Webster's Second International Dictionary 1306
(1954)) and by the company in which the phrase is found ("there
must be
some racial, or perhaps otherwise class-based,
invidiously discriminatory animus,"
Griffin, 403 U. S., at
102 (emphasis added)). Whether one agrees or disagrees with the
goal of preventing abortion, that goal in itself (apart from the
use of unlawful means to achieve it, which is not relevant to our
discussion of animus) does not remotely qualify for such harsh
description, and for such derogatory association with racism. To
the contrary, we have said that "a value judgment favoring
childbirth over abortion" is proper and reasonable enough to be
implemented by the allocation of public funds, see
Maher,
supra, at 474, and Congress itself has, with our approval,
discriminated against abortion in its provision of financial
support for medical procedures, see
Harris, supra, at 325.
This is not the stuff out of which a § 1985(3) "invidiously
discriminatory animus" is created.
B
Respondents' federal claim fails for a second, independent
reason: A § 1985(3) private conspiracy "for the purpose of
depriving ... any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under
the laws," requires an intent to deprive persons of a right
guaranteed against private impairment. See
Carpenters, 463
U. S., at 833. No intent to deprive of such a right was established
here.
Respondents, like the courts below, rely upon the right to
interstate travel-which we have held to be, in at least some
contexts, a right constitutionally protected against private
interference. See
Griffin, supra, at 105-106. But all that
respondents can point to by way of connecting petitioners'
275
actions with that particular right is the District Court's
finding that "[s]ubstantial numbers of women seeking the services
of [abortion] clinics in the Washington Metropolitan area travel
interstate to reach the clinics." 726 F. Supp., at 1489. That is
not enough. As we said in a case involving 18 U. S. C. § 241, the
criminal counterpart of § 1985(3):
"[A] conspiracy to rob an interstate traveler would not, of
itself, violate § 241. But if the predominant purpose of the
conspiracy is to impede or prevent the exercise of the right of
interstate travel, or to oppress a person because of his exercise
of that right, then ... the conspiracy becomes a proper object of
the federal law under which the indictment in this case was
brought." United States v. Guest, 383 U. S. 745, 760
(1966).5
Our discussion in
Carpenters makes clear that it does not
suffice for application of § 1985(3) that a protected right be
incidentally affected. A conspiracy is not "for the purpose" of
denying equal protection simply because it has an effect upon a
protected right. The right must be
"aimed at," 463 U. S., at
833 (emphasis added); its impairment must be a conscious objective
of the enterprise. Just as the "invidiously discriminatory animus"
requirement, discussed above, requires that the defendant have
taken his action "at least in part 'because of,' not merely 'in
spite of,' its adverse effects
5 JUSTICE STEVENS finds "most significant ... the dramatic
difference between the language of 18 U. S. C. § 241" and that of §
1985(3), in that the former "includes an unequivocal 'intent'
requirement."
Post, at 335. He has it precisely backwards.
The
second paragraph of § 241 does contain an explicit
"intent" requirement, but the
first paragraph, which was the
only one at issue in
Guest, see 383 U. S., at 747, does not;
whereas § 1985(3) does explicitly require a "purpose." As for
JUSTICE STEVENS' emphasis upon the fact that § 1985(3), unlike §
241, embraces "a purpose to deprive another of a protected
privilege 'either directly or indirectly,'"
post, at 335:
that in no way contradicts a specific intent requirement. The
phrase "either directly or indirectly" modifies "depriving," not
"purpose." The deprivation, whether direct or indirect, must still
have been the
purpose of the defendant's action.
276
upon an identifiable group,"
Feeney, 442 U. S., at 279,
so also the "intent to deprive of a right" requirement demands that
the defendant do more than merely be aware of a deprivation of
right that he causes, and more than merely accept it; he must act
at least in part for the very purpose of producing it.6 That was
not shown to be the case here, and is on its face implausible.
Petitioners oppose abortion, and it is irrelevant to their
opposition whether the abortion is performed after interstate
travel.
Respondents have failed to show a conspiracy to violate the
right of interstate travel for yet another reason: Petitioners'
proposed demonstrations would not implicate that right. The federal
guarantee of interstate travel does not transform state-law torts
into federal offenses when they are intention-
6 To contradict the plain import of our cases on this point,
JUSTICE STEVENS presses into service a footnote in
Griffin.
Post, at 335-336, n. 33. In addressing "[t]he motivation
requirement introduced by the word 'equal' into ... § 1985(3),"
Griffin said that
this was not to be confused with a
test of "specific intent to deprive a person of a federal right
made definite by decision or other rule of law"; § 1985(3)
"contains no specific requirement of 'wilfulness,'" and its
"motivation aspect ... focuses not on scienter in relation to
deprivation of rights but on invidiously discriminatory animus."
Griffin, 403 U. S., at 102, n. 10. This is supremely
irrelevant to the present discussion, since (1) we are not
considering "the motivation requirement introduced by the word
'equal,'" but rather the intent requirement introduced by the word
"purpose," and (2) we are not asserting that the right in question
must have been "made definite by decision or other rule of law,"
but only that it must have been
"aimed at," with or without
knowledge that it is a federally protected right, cf.
Screws
v.
United States, 325 U. S. 91, 103-107
(1945)-a requirement not of "wilfulness," in other words, but only
of "purpose." The requisite "purpose" was of course pleaded in
Griffin, as we specifically noted. See 403 U. S., at 103.
JUSTICE STEVENS makes no response whatever to the plain language of
Carpenters, except to contend that the same irrelevant
footnote 10 reaches forward 12 years in time, to prevent
Carpenters from meaning what it obviously says
("aimed
at"). Although a few lower courts at one time read the
Griffin footnote as JUSTICE STEVENS does, see
post,
at 336337, those cases were all decided years before this Court's
opinion in
Carpenters, which we follow.
277
ally committed against interstate travelers. Rather, it protects
interstate travelers against two sets of burdens: "the erection of
actual barriers to interstate movement" and "being treated
differently" from intrastate travelers.
Zobel v.
Williams, 457
U. S. 55, 60, n. 6 (1982). See
Paul v.
Virginia,
8 Wall. 168, 180 (1869) (Art. IV, § 2, "inhibits discriminating
legislation against [citizens of other States and] gives them the
right of free ingress into other States, and egress from them");
Toomer v.
Witsell, 334 U. S. 385, 395 (1948)
(Art. IV, § 2, "insure[s] to a citizen of State A who ventures into
State B the same privileges which the citizens of State B enjoy").
As far as appears from this record, the only "actual barriers to
... movement" that would have resulted from petitioners' proposed
demonstrations would have been in the immediate vicinity of the
abortion clinics, restricting movement from one portion of the
Commonwealth of Virginia to another. Such a purely intrastate
restriction does not implicate the right of interstate travel, even
if it is applied intentionally against travelers from other States,
unless it is applied
discriminatorily against them. That
would not be the case here, as respondents conceded at oral
argument.7
The other right alleged by respondents to have been
intentionally infringed is the right to abortion. The District
Court declined to rule on this contention, relying exclusively upon
the right-of-interstate-travel theory; in our view it also
7 JUSTICE STEVENS expresses incredulity at the rule we have
described.
It is, he says, "unsupported by precedent or reason,"
post, at 333, both of which show, he claims, that the right
of interstate travel is violated even by "conduct that evenhandedly
disrupts both local and interstate travel,"
post, at 337. We
cite right-to-travel cases for our position; he cites nothing but
negative Commerce Clause cases for his. While it is always pleasant
to greet such old Commerce Clause warhorses as
Pike v.
Bruce Church, Inc., 397 U. S. 137 (1970),
Dean Milk Co. v.
Madison, 340 U. S. 349 (1951), and
Southern Pacific Co. v.
Arizona ex rel. Sullivan,
325 U. S. 761
(1945), cited
post, at 337, surely they are irrelevant to
the individual right of interstate travel we are here discussing.
That right does not derive from the negative Commerce Clause, or
else it could be eliminated by Congress.
278
is an inadequate basis for respondents' § 1985(3) claim.
Whereas, unlike the right of interstate travel, the asserted right
to abortion was assuredly "aimed at" by the petitioners,
deprivation of that federal right (whatever its contours) cannot be
the object of a purely private conspiracy. In
Carpenters, we
rejected a claim that an alleged private conspiracy to infringe
First Amendment rights violated § 1985(3). The statute does not
apply, we said, to private conspiracies that are "aimed at a right
that is by definition a right only against state interference," but
applies only to such conspiracies as are "aimed at interfering with
rights ... protected against private, as well as official,
encroachment." 463 U. S., at 833. There are few such rights (we
have hitherto recognized only the Thirteenth Amendment right to be
free from involuntary servitude,
United States v.
Kozminski, 487
U. S. 931, 942 (1988), and, in the same Thirteenth Amendment
context, the right of interstate travel, see
United States
v.
Guest, 383 U. S., at 759, n. 17). The right to abortion
is not among them. It would be most peculiar to accord it that
preferred position, since it is much less explicitly protected by
the Constitution than, for example, the right of free speech
rejected for such status in
Carpenters. Moreover, the right
to abortion has been described in our opinions as one element of a
more general right of privacy, see
Roe v.
Wade,
410 U. S. 113,
152-153 (1973), or of Fourteenth Amendment liberty, see
Planned
Parenthood of Southeastern Pa., 505 U. S., at 846-851; and the
other elements of those more general rights are obviously
not protected against private infringement. (A burglar does
not violate the Fourth Amendment, for example, nor does a mugger
violate the Fourteenth.) Respondents' § 1985(3) "deprivation" claim
must fail, then, because they have identified no right protected
against private action that has been the object of the alleged
conspiracy.
279
II
Two of the dissenters claim that respondents have established a
violation of the second, "hindrance" clause of § 1985(3), which
covers conspiracies "for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or
securing to all persons within such State or Territory the equal
protection of the laws." 42 U. S. C. § 1985(3).
This "claim" could hardly be presented in a posture less
suitable for our review. As respondents frankly admitted at both
argument and reargument, their complaint did not set forth a claim
under the "hindrance" clause. Tr. of Oral Arg. 27 ("the complaint
did not make a hinder or prevent claim"); Tr. of Reargument 33-34.8
Not surprisingly, therefore, neither the District Court nor the
Court of Appeals considered the application of that clause to the
current facts. The "hindrance" -clause issue is not fairly included
within the questions on which petitioners sought certiorari, see
Pet. for Cert. i; this Court's Rule 14.1(a),9 which is alone enough
to exclude it from our consideration.10 Nor is it true that
"[t]he
8 These admissions were accurate. The amended complaint alleged,
in its two federal causes of action, that petitioners "have
conspired to deprive women of their right to travel" and "have
conspired ... for the purpose of denying women seeking abortions
... their rights to privacy." App. 15-16. These are both
"deprivation" claims; neither one makes any allusion to hindrance
or prevention of state authorities.
9JUSTICE SOUTER contends,
post, at 290-291, that the
"hindrance"clause issue was embraced within question four, which
asked: "Are respondents' claims under 42 U. S. C. § 1985(3) so
insubstantial as to deprive the federal courts of subject matter
jurisdiction?" Pet. for Cert. i. This argument founders on the hard
(and admitted) reality that "respondents' claims" did not include a
"hindrance" claim.
10 Contrary to JUSTICE SOUTER'S suggestion,
post, at
290-291, the provision of our Rules giving respondents the right,
in their brief in opposition, to restate the questions presented,
Rule 24.2, does not give them the power
to expand the
questions presented, as the Rule itself makes clear. In any event,
neither of the questions set forth in the Brief in Opposition
fairly
280
issue was briefed, albeit sparingly, by the parties prior to the
first oral argument in this case."
Post, at 291 (SOUTER, J.,
concurring in judgment in part and dissenting in part). To the
contrary, neither party initiated even the slightest suggestion
that the "hindrance" question was an issue to be argued and decided
here.ll That possibility was suggested for the first time by
questions from the bench during argument, and was reintroduced,
again from the bench, during reargument. (Respondents sought to
include a "hindrance"clause section in their Supplemental Brief on
Reargument, but the Court declined to accept that section for
filing. See 505 U. S. 1240 (1992).) In sum, the Justices reaching
the "hindrance" -clause issue in this case must find in the
complaint claims that the respondents themselves have admitted are
not there; must resolve a question not presented to, or ruled on
by, any lower court; must revise the rule that it is the petition
for certiorari (not the brief in opposition and later briefs) that
determines the questions presented; and must penalize the parties
for not addressing an issue on
raises the "hindrance" claim. And there is no support whatever
for JusTICE SOUTER'S reliance upon the formulation of the question
in respondents' brief on the merits,
post, at 290, as the
basis for deeming the question properly presented-though on the
merits, once again, the question referred to by JUSTICE SOUTER is
unhelpful.
11 Respondents' brief asserted that, if the Court did not affirm
the judgment on the basis of the "deprivation" clause, then a
remand would be necessary, so that respondents could "present a
number of contentions respecting [their right-to-privacy] claim"
which had not been reached below, including the contention that
"petitioners, by means of their blockades, had hindered the police
in securing to women their right to privacy." Brief for Respondents
43. Petitioners' reply brief responded that the complaint did not
contain such a "hindrance" claim, and that there was "no reason to
believe" that the "hindrance" clause "would not entail the same
statutory requirements of animus and independent rights which
respondents have failed to satisfy under the first clause of the
statute." Reply Brief for Petitioners 14-15. These were obviously
not arguments for resolution of the "hindrance" claim
here.
281
which the Court specifically denied supplemental briefing.12
That is extraordinary. See,
e. g., R. A. v: v.
St. Paul,
505 U. S. 377, 381-382, n. 3 (1992) (citing cases and
treatises);
Kamen v.
Kemper Financial Services, Inc.,
500 U. S. 90, 97,
n.4 (1991);
Browning-Ferris Industries of Vt., Inc. v.
Kelco Disposal, Inc., 492 U. S. 257, 277, and
n. 23 (1989).
The dissenters' zeal to reach the question whether there was a
"hindrance" -clause violation would be more understandable,
perhaps, if the affirmative answer they provided were an easy one.
It is far from that. Judging from the statutory text, a cause of
action under the "hindrance" clause would seem to require the same
"class-based, invidiously discriminatory animus" that the
"deprivation" clause requires, and that we have found lacking here.
We said in
Griffin that the source of the animus requirement
is "[t]he language requiring intent to deprive of
equal
protection, or
equal privileges and immunities," 403 U. S.,
at 102 (emphasis in original)-and such language appears in the
"hindrance" clause as well.13 At oral argument, respondents
conceded applicability of the animus requirement, though
they with-
12We are unable to grasp the logic whereby JUSTICE SOUTER, who
would have us
conclusively resolve the "hindrance"-clause
legal issue against petitioners (despite their lack of opportunity
to address it, both here and below), criticizes our opinion, see
post, at 291-292, for merely
suggesting (without
resolving the "hindrance"-clause issue) the difficulties that
inhere in his approach.
13 In straining to argue that the "hindrance" clause does not
have the same animus requirement as the first clause of § 1985(3),
JUSTICE STEVENS makes an argument extrapolating from the reasoning
of
Kush v.
Rutledge, 460 U. S. 719 (1983),
which held that the animus requirement expounded in
Griffin
did not apply to a claim under the first clause of § 1985(2).
Post, at 340-342. But the heart of
Kush-what the case
itself considered "of greatest importance"-was the fact that
Griffin's animus requirement rested on "the 'equal
protection' language" of § 1985(3), which the first clause of §
1985(2) did not contain. 460 U. S., at 726. Since the "hindrance"
clause of § 1985(3) does contain that language, the straightforward
application of
Kush to this case is quite the opposite of
what JUSTICE STEVENS asserts.
282
drew this concession on reargument. Without a race- or
class-based animus requirement, the "hindrance" clause of this
post-Civil War statute would have been an available weapon against
the mass "sit-ins" that were conducted for purposes of promoting
desegregation in the 1960's-a wildly improbable result.14
Even, moreover, if the "hindrance" -clause claim did not fail
for lack of class-based animus, it would still fail unless the
"hindrance" clause applies to a private conspiracy aimed at
14JUSTICE SOUTER contends the sit-in example is inapposite
because the sit-ins did not "depriv[e] the owners of the segregated
lunch counter[s] of any independently protected constitutional
right."
Post, at 305, n. 10. In the very paragraph to which
that footnote is appended, however, JUSTICE SOUTER purports to
leave open the question whether the "hindrance" clause would
apply when the conspiracy "amount[s] to a denial of police
protection to individuals who are not attempting to exercise a
constitutional right,"
post, at 304, n. 9-such as
(presumably) the rights guaranteed by state trespass laws.
Certainly the sit-ins violated such state-law rights, or else there
would have been no convictions. It is not true, in any case, that
the sit-ins did not invade constitutional rights, if one uses that
term (as JUSTICE SOUTER does) to include rights constitutionally
protected only against official (as opposed to private)
encroachment. Surely property owners have a constitutional right
not to have government physically occupy their property without due
process and without just compensation.
JUSTICE SOUTER'S citation of
Roberts v.
United States
Jaycees, 468 U.
S. 609 (1984),
post, at 305, n. 10, and
Lane v.
Cotton, 12 Mod. 472 (K. B. 1701),
post, at 305, n.
10, requires no response. He cites
Heart of Atlanta Motel,
Inc. v.
United States, 379 U. S. 241 (1964), for
the proposition that the 1964 Civil Rights Act's elimination of
restaurant-owners' right to exclude blacks from their
establishments did not violate the Due Process or Takings Clauses.
Assuredly not. But government regulation of commercial use through
valid legislation is hardly comparable to government action that
would have been the equivalent of what those conducting the sit-ins
did: physically occupy private property, against the consent of the
owner, without legal warrant. JUSTICE SOUTER cites
Shelley
v.
Kraemer, 334
U. S. 1 (1948), post, at 306, n. 10, to establish (in
effect) that there
was, even before the Civil Rights Act,
legal warrant for the physical occupation. Any argument driven to
reliance upon an extension of that volatile case is obviously in
serious trouble.
283
rights that are constitutionally protected only against official
(as opposed to private) encroachment. JUSTICE STEVENS finds it
"clear" that it does, see
post, at 339, citing,
surprisingly,
Carpenters. To the extent that case
illuminates this question at all, it is clearly contrary to the
dissent's view, holding that the "deprivation" clause, at least,
does
not cover private conspiracies aimed at rights
protected only against state encroachment. JUSTICE O'CONNOR simply
asserts without analysis that the "hindrance" clause nonetheless
applies to those rights,
post, at 355-356-although the
operative language of the two clauses ("equal protection of the
laws") is identical. JUSTICE SOUTER disposes of the
rightsguaranteed-against-private-encroachment requirement, and the
class-based animus requirement as well, only by (1) undertaking a
full-dress reconsideration of
Griffin and
Carpenters,
(2) concluding that both those cases were wrongly decided, and (3)
limiting the damage of those supposed errors by embracing an
interpretation of the statute that concededly gives the same
language in two successive clauses completely different meanings.15
See
post, at 292-303. This
15JUSTICE SOUTER contends that even without the animus and
rightsguaranteed-against-private-encroachment requirements, the
"hindrance" clause will still be "significantly limit[ed]" in
scope, covering only "conspiracies to act with enough
force
... to
overwhelm the capacity oflegal authority to act
evenhandedly in administering the law,"
post, at 300
(emphasis added). JUSTICE STEVENS discerns a similar limitation,
see
post, at 341342. Only JUSTICE SOUTER attempts to find a
statutory basis for it. He argues that since § 1985(1) prohibits a
conspiracy to prevent
"any person" (emphasis added) from
"discharging any duties," § 1985(3)'s prohibition of a conspiracy
directed against
"the constituted authorities" (emphasis
added) must be speaking of something that affects more than a
single official,
post, at 300. This seems to us a complete
non sequitur. The difference between "any person" and "constituted
authorities" would contain such a significant limitation (if at
all) only if the remaining language of the two sections was roughly
parallel. But it is not. Section 1985(1), for example, speaks of
categorically "prevent[ing]" a person's exercise of his duties,
whereas § 1985(3) speaks of "preventing
or hindering" the
constituted authorities. (Emphasis added.) Obviously, one can
"hinder" the
284
formidable task has been undertaken and completed, we reiterate,
uninvited by party or
amicus, and with respect to a cause of
action not presented in the pleadings, not asserted or ruled upon
below, and not contained in the questions presented on
certiorari.
Equally troubling as the dissenters' questionable resolution of
a legal issue never presented is their conclusion that the lower
court found (or, in the case of JUSTICE SOUTER, can reasonably be
thought to have found) the facts necessary to support the
(nonexistent) "hindrance" claim. They concede that this requires a
finding that the protesters'
purpose was to prevent or
hinder law enforcement officers; but discern such a finding in the
District Court's footnote recitation that "the rescuers outnumbered
the ... police officers" and that "the police were unable to
prevent the closing of the clinic for more than six (6) hours."
National Organization for Women v.
Operation Rescue,
726 F. Supp., at 1489, n. 4. See
post, at 339 (STEVENS, J.,
dissenting);
post, at 356 (O'CONNOR, J., dissenting);
post, at 306 (SOUTER, J., concurring in judgment in part and
dissenting in part). This renders the distinction between "purpose"
and "effect" utterly meaningless. Here again, the dissenters (other
than JUSTICE SOUTER) would give respondents more than respondents
themselves dared to ask. Respondents frankly admitted at the
authorities by "preventing" an individual officer. If these
dissenters' interpretation of § 1985(3) were adopted, conspiracies
to prevent individual state officers from acting would be left
entirely uncovered. (Section 1985(1) applies only to officers
of
the United States-which is, of course, the basic distinction
between the two provisions.)
Neither dissent explains why the application of enough force to
impede law enforcement, though not to "overwhelm" or
"supplant" it, does not constitute a "hindering"; or, indeed, why
only "force" and not bribery or misdirection must be the means of
hindrance or prevention. Nothing in the text justifies these
limitations. JUSTICE SOUTER'S faith in the "severely limited"
character of the hindrance clause also depends upon his taking no
position on whether the clause protects federal statutory rights
and state-protected rights,
post, at 303-304, n. 9.
285
original argument, and even at reargument, that the District
Court never concluded that impeding law enforcement was the
purpose of petitioners' protests, and that the "hindrance"
claim, if valid in law, required a remand. They were obviously
correct. 16
III
Because respondents were not entitled to relief under § 1985(3),
they were also not entitled to attorney's fees and costs under 42
U. s. C. § 1988. We therefore vacate that award.
Petitioners seek even more. They contend that respondents' §
1985(3) claims were so insubstantial that the District Court lacked
subject-matter jurisdiction over the action, including the pendent
state claims; and that the injunction should therefore be vacated
and the entire action dismissed. We do not agree. While
respondents' § 1985(3) causes of action fail, they were not, prior
to our deciding of this case, "wholly insubstantial and frivolous,"
Bell v.
Hood, 327 U. S. 678, 682-683
(1946), so as to deprive the District Court of jurisdiction.
It may be, of course, that even though the District Court had
jurisdiction over the state-law claims, judgment on those claims
alone cannot support the injunction that was entered. We leave that
question for consideration on remand.
16 Because of our disposition of this case, we need not address
whether the District Court erred by issuing an injunction, despite
the language in § 1985(3) authorizing only "an action for the
recovery of damages occasioned by such injury or deprivation." It
is curious, however, that the dissenters, though quick to reach and
resolve the unpresented "hindrance" issue, assume without analysis
the propriety of the injunctive relief that they approve-though the
contrary was asserted by the United States as
amicus in
support of petitioners, and the issue was addressed by both parties
in supplemental briefs on reargument. See Supplemental Brief for
Petitioners on Reargument 4-9; Brief for Respondents on Reargument
9.
286
***
JUSTICE STEVENS' dissent observes that this is "a case about the
exercise of federal power to control an interstate conspiracy to
commit illegal acts,"
post, at 344, and involves "no
ordinary trespass," or "picketing of a local retailer," but "the
kind of zealous, politically motivated, lawless conduct that led to
the enactment of the Ku Klux Act in 1871 and gave it its name,"
post, at 313. Those are certainly evocative assertions, but
as far as the point of law we have been asked to decide is
concerned, they are irrelevant. We construe the statute, not the
views of "most members of the citizenry."
Post, at 344. By
its terms, § 1985(3) covers concerted action by as few as two
persons, and does not require even interstate (much less
nationwide) scope. It applies no more and no less to completely
local action by two part-time protesters than to nationwide action
by a full-time force of thousands.17 And under our precedents it
simply does not apply to the sort of action at issue here.
Trespassing upon private property is unlawful in all States, as
is, in many States and localities, intentionally obstructing the
entrance to private premises. These offenses may be prosecuted
criminally under state law, and may also be the basis for state
civil damages. They do not, however, give rise to a federal cause
of action simply because their objective is to prevent the
performance of abortions, any more than they do so (as we have
held) when their objective is to stifle free speech.
17 JUSTICE STEVENS chides us for invoking text here, whereas (he
says) we rely instead upon "statutory purpose" for our class-based
animus requirement-"selectively employ[ing] both approaches to give
[§ 1985(3)] its narrowest possible construction."
Post, at
343, n. 37. That is not so. For our class-based animus requirement
we rely, plainly and simply, upon our holding in
Griffin,
whatever approach
Griffin may have used. That holding is
(though JUSTICE STEVENS might wish otherwise) an integral part of
our jurisprudence extending § 1985(3) to purely private
conspiracies.
287
The judgment of the Court of Appeals is reversed in part and
vacated in part, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
In joining the opinion of the Court, I make these added
observations.
The three separate dissenting opinions in this case offer
differing interpretations of the statute in question, 42 U. S. C. §
1985(3). Given the difficulty of the question, this is
understandable, but the dissenters' inability to agree on a single
rationale confirms, in my view, the correctness of the Court's
opinion. As all recognize, essential considerations of federalism
are at stake here. The federal balance is a fragile one, and a
false step in interpreting § 1985(3) risks making a whole catalog
of ordinary state crimes a concurrent violation of a single
congressional statute passed more than a century ago.
Of course, the wholesale commission of common state-law crimes
creates dangers that are far from ordinary. Even in the context of
political protest, persistent, organized, premeditated lawlessness
menaces in a unique way the capacity of a State to maintain order
and preserve the rights of its citizens. Such actions are designed
to inflame, not inform. They subvert the civility and mutual
respect that are the essential preconditions for the orderly
resolution of social conflict in a free society. For this reason,
it is important to note that another federal statute offers the
possibility of powerful federal assistance for persons who are
injured or threatened by organized lawless conduct that falls
within the primary jurisdiction of the States and their local
governments.
Should state officials deem it necessary, law enforcement
assistance is authorized upon request by the State to the Attorney
General of the United States, pursuant to 42
288
u. S. C. § 10501. In the event of a law enforcement emergency as
to which "State and local resources are inadequate to protect the
lives and property of citizens or to enforce the criminal law," §
10502(3), the Attorney General is empowered to put the full range
of federal law enforcement resources at the disposal of the State,
including the resources of the United States Marshals Service,
which was presumably the principal practical advantage to
respondents of seeking a federal injunction under § 1985(3). See §
10502(2).
If this scheme were to be invoked, the nature and extent of a
federal response would be a determination for the Executive. Its
authority to act is less circumscribed than our own, but I have
little doubt that such extraordinary intervention into local
controversies would be ordered only after a careful assessment of
the circumstances, including the need to preserve our essential
liberties and traditions. Indeed, the statute itself explicitly
directs the Attorney General to consider "the need to avoid
unnecessary Federal involvement and intervention in matters
primarily of State and local concern." § 10501(c)(5).
I do not suggest that this statute is the only remedy available.
It does illustrate, however, that Congress has provided a federal
mechanism for ensuring that adequate law enforcement resources are
available to protect federally guaranteed rights and that Congress,
too, attaches great significance to the federal decision to
intervene. Thus, even if, after proceedings on remand, the ultimate
result is dismissal of the action, local authorities retain the
right and the ability to request federal assistance, should they
deem it warranted.
JUSTICE SOUTER, concurring in the judgment in part and
dissenting in part.
I
This case turns on the meaning of two clauses of 42 U. S. C. §
1985(3) which render certain conspiracies civilly actionable. The
first clause (the deprivation clause) covers conspiracies
289
"for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws";
the second (the prevention clause), conspiracies
"for the purpose of preventing or hindering the constituted
authorities of any State or Territory from giving or securing to
all persons within such State or Territory the equal protection of
the laws .... "
For liability in either instance the statute requires an "act in
furtherance of the ... conspiracy, whereby [a person] is injured in
his person or property, or deprived of ... ... any right or
privilege of a citizen of the United States ... " Prior cases
giving the words "equal protection of the laws" in the deprivation
clause an authoritative construction have limited liability under
that clause by imposing two conditions not found in the terms of
the text. An actionable conspiracy must have some racial or perhaps
other class-based motivation,
Griffin v.
Breckenridge, 403 U. S. 88, 102 (1971),
and, if it is "aimed at" the deprivation of a constitutional right,
the right must be one secured not only against official
infringement, but against private action as well,
Carpenters
v.
Scott, 463
U. S. 825, 833 (1983). The Court follows these cases in
applying the deprivation clause today, and to this extent I take no
exception to its conclusion. I know of no reason that would exempt
us from the counsel of
stare decisis in adhering to this
settled statutory construction, see
Hilton v.
South
Carolina Public Railways Comm'n, 502 U. S. 197 (1991),
which Congress is free to change if it should think our prior
reading unsound.
II
The meaning of the prevention clause is not thus settled,
however, and starting in Part IV I will give my reasons for reading
it without any importation of these extratextual conditions from
the deprivation clause. First, however, a word
290
is in order to show that the prevention clause's construction is
properly before us, and to explain why the Court is not in a
position to cast doubt on that clause's arguable applicability to
the facts indicated by the record, in light of the Court's refusal
to allow respondents to address this very issue in the supplemental
briefing that was otherwise permitted prior to the reargument of
this case.
A
Respondents' complaint does not limit their theory of liability
to the deprivation clause alone, for it alleges simply that
petitioners "have conspired with each other and other parties
presently unknown for the purpose of denying women seeking
abortions at targeted facilities their right to privacy, in
violation of 42 U. s. C. § 1985(3)." App. 16.1 Evidence presented
at a hearing before the District Court addressed the issue of
prevention or hindrance, leading that court to note that the
demonstrators so far outnumbered local police that "[e]ven though
240 rescuers were arrested, the police were unable to prevent the
closing of the clinic for more than six (6) hours."
National
Organization for Women v.
Operation Rescue, 726 F. Supp.
1483, 1489, n. 4 (ED Va. 1989). The applicability of the prevention
clause is fairly included within the questions presented,
especially as restated by respondents, see Brief for Respondents i
(first question presented); 2 Brief in Opposition i;
Holmes
v.
Securities Investor Protection Corp., 503 U. S. 258, 267, n. 12
(1992) (respondent has the right under this Court's Rule 24.2
to
1 Contrary to the Court's interpretation, see
ante, at
279, and n. 8, respondents made this very point at reargument:
"Q: And it wasn't-and it wasn't in the complaint, was it?
"Ms. Ellis: No, Your Honor. The complaint is [sic] alleged,
though, a violation of section 1985(3) generally." Tr. of
Reargument 33-34.
2 "Whether a conspiracy to blockade medical clinics providing
abortions and related services to women, substantial numbers of
whom travel from other states, is a basis for a cause of action
under 42 U. S. C. § 1985(3)."
291
restate the questions presented); see also Pet. for Cert. i
(petitioners' fourth question presented).3 The issue was briefed,
albeit sparingly, by the parties prior to the first oral argument
in this case, see Brief for Respondents 43-44; Reply Brief for
Petitioners 14-15, and during that argument was the subject of a
question from the bench. See Tr. of Oral Arg. 27-29.
B
Just as it is therefore proper for me to address the
interpretation of the prevention clause and the merits of
respondents' position under its terms, it was reasonable for
respondents themselves to seek leave to file a supplemental brief
addressing that interpretation and those merits prior to the
reargument. Their request was nonetheless denied, see 505 U. S.
1240 (1992), though I voted to grant it, and three other Members of
the Court dissented on the record from the Court's action to the
contrary. Nonetheless, whatever may have been the better decision,
denying respondents' request was at least consistent with leaving
the consideration of the prevention clause for another day, and in
no way barred respondents from pressing a claim under the clause at
a later stage of this litigation. A vote to deny the request could,
for example, simply have reflected a view that in the absence of
more extensive trial court findings than those quoted above it was
better to leave the prevention clause for further consideration on
the remand that I agree is appropriate. Now, however, in expressing
skepticism that the prevention clause could be a basis for relief,
the Court begins to close the door that the earlier order left
open, a move that is unfair to respondents after their request was
denied. While the Court's opinion concentrates on the errors of my
ways, it would be difficult not to read it as rejecting a
construction of the prevention clause under which respondents might
suc-
3 "Are respondents' claims under 42 U. S. C. § 1985(3) so
insubstantial as to deprive the federal courts of subject matter
jurisdiction?"
292
ceed, and to that extent as barring their claim under a
statutory provision on which they were not allowed to comment in
the supplemental briefing that was otherwise permitted before
reargument.
C
Because in my judgment the applicability of the prevention
clause was raised, and because there is neither unfairness to
respondents in putting forward a statutory interpretation that does
not bar their claim, nor unfairness to petitioners who sought no
leave to address the issue further, I turn to my own views on the
meaning of the prevention clause's terms.
III
Because this Court has not previously faced a prevention clause
claim, the difficult question that arises on this first occasion is
whether to import the two conditions imposed on the deprivation
clause as limitations on the scope of the prevention clause as
well. If we do not, we will be construing the phrase "equal
protection of the laws" differently in neighboring provisions of
the same statute, and our interpretation will seemingly be at odds
with the "natural presumption that identical words used in
different parts of the same act [were] intended to have the same
meaning."
Atlantic Cleaners &
Dyers, Inc. v.
United States, 286 U. S. 427, 433
(1932). But the presumption is defeasible, and in this instance
giving the common phrase an independent reading is exactly what
ought to be done.
This is so because the two conditions at issue almost certainly
run counter to the intention of Congress, and whatever may have
been the strength of this Court's reasons for construing the
deprivation clause to include them, those reasons have no
application to the prevention clause now before us. To extend the
conditions to shorten the prevention clause's reach would,
moreover, render that clause inoperative against a conspiracy to
which its terms in their plain
293
meaning clearly should apply, a conspiracy whose perpetrators
plan to overwhelm available law enforcement officers, to the point
of preventing them from providing a class of victims attempting to
exercise a liberty guaranteed them by the Constitution with the
police protection otherwise extended to all persons going about
their lawful business on streets and private premises. Lest we
embrace such an unintended and untoward result, we are obliged to
reject any limiting constructions that
stare decisis does
not require.
A
The amalgam of concepts reflected in 42 U. S. C. § 1985(3)
witness the statute's evolution, as § 2 of the Civil Rights Act of
1871, from a bill that would have criminalized conspiracies "to do
any act in violation of the rights, privileges, or immunities of
any person ... ," Congo Globe, 42d Cong., 1st Sess., App. 206
(1871) (statement of Rep. Blair), quoting H. R. 320, § 2, 42d
Cong., 1st Sess. (1871), to a statute including a civil cause of
action against conspirators and those who "go in disguise" to
violate certain constitutional guarantees. See 17 Stat. 13. The
amendment of the original bill that concerns us occurred in the
House, to calm fears that the statute's breadth would extend it to
cover a vast field of traditional state jurisdiction, exceeding
what some Members of Congress took to be the scope of congressional
power under the Fourteenth Amendment. See Comment, A Construction
of Section 1985(c) in Light of Its Original Purpose, 46 U. Chi. L.
Rev. 402, 417 (1979). The principal curb placed on the statute's
scope was the requirement that actionable conspiracies (not
otherwise proscribed on the strength of their threats to voting
rights, see § 1985(3)) be motivated by a purpose to deny equal
protection of the laws. The sponsor of the amendment,
Representative Shellabarger, put it this way: "The object of the
amendment is ... to confine the authority of this law to the
prevention of deprivations which
294
shall attack the equality of rights of American citizens .... "
Congo Globe, 42d Cong., 1st Sess., 478 (1871).
The effect of the equal protection requirement in thus limiting
the deprivation clause has received the Court's careful attention,
first in
Collins v.
Hardyman, 341 U. S. 651 (1951),
then in a series of more recent cases,
Griffin v.
Breckenridge, 403 U. S. 88 (1971),
Great American Fed. Sav. &
Loan Assn. v.
Novotny, 442
U. S. 366 (1979), and
Carpenters v.
Scott, 463 U.
S. 825 (1983). For present purposes,
Griffin and
Carpenters stand out.
B
The
Griffin Court sought to honor the restrictive intent
of the 42d Congress by reading the "language requiring intent to
deprive of equal protection, or equal privileges and immunities,"
Griffin, 403 U. S., at 102 (emphasis omitted), as demanding
proof of "some racial, or perhaps otherwise classbased, invidiously
discriminatory animus behind the conspirators' action."
Ibid. And while this treatment did, of course, effectively
narrow the scope of the clause, it did so probably to the point of
overkill, unsupported by any indication of an understanding on the
part of Congress that the animus to deny equality of rights lying
at the heart of an equal protection violation as the legislation's
sponsors understood it would necessarily be an animus based on race
or some like character. See id., at 100; Congo Globe, 42d Cong.,
1st Sess., App. 188 (remarks of Rep. Willard); Congo Globe, 42d
Cong., 1st Sess., at 478 (remarks of Rep. Shellabarger).
While the Congress did not explain its understanding of
statutory equal protection to any fine degree, I am not aware of
(and the
Griffin Court did not address) any evidence that in
using the phrase "equal protection" in a statute passed only three
years after the ratification of the Fourteenth Amendment Congress
intended that phrase to mean anything different from what the
identical language meant in the Amendment itself. That is not to
say, of course, that all Members of Congress in 1871, or all
jurists, would have
295
agreed on exactly what the phrase did mean, and certainly it is
true that the conceptual development of equal protection could
hardly have been outlined in advance by the Members of the 42d
Congress. But equally is it true that we have no reason to suppose
that they meant their statutory equal protection provision to be
read any more narrowly than its obvious cognate in the Amendment.
Griffin, however, gave it just such a reading.
To be sure, there is some resonance between
Griffin's
animus requirement and those constitutional equal protection cases
that deal with classifications calling for strict or heightened
scrutiny, as when official discriminations employ such
characteristics as race, national origin, alienage, gender, or
illegitimacy. See
Cleburne v.
Cleburne Living Center,
Inc., 473 U. S.
432, 440-441 (1985) (describing the jurisprudence).4 But these
categories of distinctions based on race or on qualities bearing a
more or less close analogy to race do not by any means exhaust the
scope of constitutional equal protection. All legislative
classifications, whether or not they can be described as having
"some racial or perhaps otherwise class-based invidiously
discriminatory animus," are subject to review under the Equal
Protection Clause, which contains no reference to race, and which
has been understood to have this comprehensive scope since at least
the late 19th century. See,
e. g., Magoun v.
Illinois
Trust &
Savings Bank, 170 U. S. 283, 293-294 (1898)
(citing cases). A routine legislative classification is, of course,
subject only to deferential scrutiny, passing constitutional muster
if it bears a rational relationship to some legitimate governmental
purpose. E. g.,
Cleburne v.
Cleburne Living Center, Inc.,
supra (describing the test);
Schweiker v.
Wilson,
450 U. S. 221,
230 (1981).
4 Cf.
Carpenters v.
Scott, 463 U. S. 825, 835-839
(1983) (holding that animus against a class based upon its economic
views, status, or activities is beyond the reach of the deprivation
clause, and reserving the question whether it reaches animus
against any class other than "Negroes and those who championed
their cause").
296
But the point is that Fourteenth Amendment equal protection
scrutiny is applied to such classifications, and if the scope of
"equal protection" in the statute is to balance its constitutional
counterpart, the statute ought to cover discriminations that would
be impermissible under rationalbasis scrutiny.
There is, indeed, even some extratextual evidence of a positive
congressional intent to provide just such a statutory reach beyond
what Griffin would allow. Some of the legislative history of § 2 of
the 1871 Act suggests that the omission of any reference to race
from the statutory text of equal protection was not the result of
inadvertence, and that Congress understood that classifications
infringing the statutory notion of equal protection were not to be
limited to those based on race or some closely comparable personal
quality. The most significant, and often quoted, evidence came from
Senator Edmunds, who managed the bill on the Senate floor and
remarked that if there were a conspiracy against a person "because
he was a Democrat, if you please, or because he was a Catholic, or
because he was a Methodist, or because he was a Vermonter ... then
this section could reach it." Congo Globe, 42d Cong., 1st Sess., at
567.5 These are not, of course, all examples of discrimination
based on any class comparable to race, and the Senator's list
counters any suggestion that the subject matter of statutory equal
protection was meant to be so confined.6
5
Carpenters did leave open the question whether the
deprivation clause might apply to a conspiracy "aimed at any class
or organization on account of its political views or activities
.... " See
Carpenters, supra, at 837.
6 Senator Edmunds' quoted language occurred in a discussion of
both §§ 2 and 3 of the bill that became the Civil Rights Act of
1871. See Congo Globe, 42d Cong., 1st Sess., at 567. That Senator
Edmunds was referring to the statutory language at issue here is
unmistakable because he stated that he was describing the
conditions required before a conspiracy could be actionable "under
the provisions of all this bill." See ibid.
297
C
Notwithstanding the
Griffin Court's decision to read the
deprivation clause's equal protection element as more restrictive
than Fourteenth Amendment equal protection, the Court recognized
that in a different respect the statute remained more expansive
than its constitutional counterpart, in being aimed at deprivations
of equal protection by purely private conspirators. 403 U. S., at
96-97. This very conclusion, in fact, prompted the further concern
that the deprivation clause might by its terms apply to facts
beyond Congress's constitutional reach. The Court nonetheless
obviated the need to address the scope of congressional power at
that time by confining itself to a holding that the statute was
constitutional at least insofar as it implemented congressional
power to enforce the Thirteenth Amendment and the right to travel
freely, each of which was "assertable against private as well as
governmental interference."
Id., at 105.7
The Court was then only one step away from putting the
deprivation clause in its present shape, a step it took in
Carpenters. Whereas
Griffin had held that requiring a
purpose to infringe a federal constitutional right guaranteed
against private action was sufficient to allay any fear that the
deprivation clause was being applied with unconstitutional breadth,
Carpenters turned this sufficient condition into a necessity
insofar as conspiracies to deprive any person or class of persons
of federal constitutional rights were concerned, by holding that in
the case of such a conspiracy no cause of action could be stated
without alleging such an ultimate object of depriving the plaintiff
of a right protected
7This prudential step was presumably unnecessary in light of
United States v.
Guest, 383 U. S. 745, 762 (1966)
(Clark, J., concurring);
id., at 782 (Brennan, J.,
concurring in part and dissenting in part), in which a majority of
the Court concluded that § 5 of the Fourteenth Amendment empowers
Congress to enact laws punishing all conspiracies, with or without
state action, that interfere with exercise of Fourteenth Amendment
rights.
298
against private action by the Federal Constitution. 463 U. S.,
at 833.
It was a most significant step. In going no further than to
affirm the deprivation clause's constitutionality insofar as it
applied to conspiracies to infringe federal constitutional rights
guaranteed against private action, the
Griffin Court had
arguably acted with prudent reticence in avoiding a needless ruling
on Congress's power to outlaw conspiracies aimed at other rights.8
But in converting this indisputably constitutional object, of
giving relief against private conspiracies to violate federal
constitutional rights guaranteed against private action, into the
exclusive subject matter of the clause with respect to conspiracies
to deprive people of federal constitutional rights, the
Carpenters Court almost certainly narrowed that clause from
the scope Congress had intended. If indeed Congress had meant to
confine the statute that narrowly, its application to federal
constitutional deprivations in 1871 would not have gone beyond
violations of the Thirteenth Amendment, adopted in 1865. (The next
clear example of a constitutional guarantee against individual
action would not emerge until
United States v.
Guest,
383 U. S. 745, 759-760, n. 17 (1966), recognizing a right of
interstate travel good against individuals as well as governments.)
But if Congress had meant to protect no federal constitutional
rights outside those protected by the Thirteenth Amendment, it is
hard to see why the drafters would not simply have said so, just as
in the third and fourth clauses of § 1985(3) they dealt expressly
with infringements of voting rights, already guaranteed against
abridgment by the Fifteenth Amendment adopted in 1870.
The
Carpenters Court might have responded to this
objection by suggesting that the textual breadth of the deprivation
clause reflects its applicability to conspiracies aimed at
violating rights guaranteed under state law or rights guar-
8 But see n. 7, supra.
299
anteed against individual infringement by federal statutory law,
since such possible applications were left open by the Court's
opinion. See
Carpenters, supra, at 833-834. But this answer
would prompt the even more fundamental objection that there is no
textual basis in the deprivation clause (or in the portions of
subsection (3) common to all clauses) suggesting that any such
individual-infringement limitation was intended at all.
Whether or not the concerns with constitutionality that prompted
both the
Griffin and
Carpenters holdings were well
raised or wisely allayed by those decisions, the solution reached
most probably left a lesser deprivation clause than Congress
intended. Just as probably, if that solution were imported into the
prevention clause, it would work an equally unintended
contraction.
IV
The conclusion that the conditions placed on the deprivation
clause narrow its intended scope prompts the question whether the
reasons thought to argue in favor of placing such conditions on the
deprivation clause apply to the prevention clause. They do not.
A
We may recall that in holding racial or other class-based animus
a necessary element of the requisite purpose to deprive of equal
protection, the
Griffin Court was mindful of the
congressional apprehension that the statute might otherwise turn
out to be "a general federal tort law."
Griffin, 403 U. S.,
at 102. While the Court did not dwell on why it chose a requirement
of racial or comparable class-based animus to restrict statutory
equal protection, its readiness to read the statutory category more
narrowly than its Fourteenth Amendment counterpart is at least
understandable when one sees that the scope of conspiracies
actionable under the deprivation clause has virtually no textual
limit beyond
300
the need to prove the equal protection element. Without the
Griffin Court's self-imposed class-based animus requirement, any
private conspiracy to deprive of equal protection would be
actionable under § 1985(3) so long as the conspirators took some
action that produced some harm.
The prevention clause carries no such premonition of liability,
however. Its most distinctive requirement, to prove a
conspiratorial purpose to "preven[t] or hinde[r] the constituted
authorities of any State or Territory from giving or securing ...
the equal protection of the laws," is both an additional element
unknown to the deprivation clause and a significantly limiting
condition. Private conspiracies to injure according to class or
classification are not enough here; they must be conspiracies to
act with enough force, of whatever sort, to overwhelm the capacity
of legal authority to act evenhandedly in administering the
law.
The requirement that the very capacity of the law enforcement
authorities must be affected is supported by a comparison of the
statutory language of the prevention clause, which touches only
those conspiracies with a purpose to "preven[t] or hinde[r] the
constituted authorities" of any State or territory from giving or
securing equal protection, with the text of § 1985(1), which (among
other things) prohibits conspiracies to prevent "any person" from
"discharging any duties" of an office under the United States. The
contrast makes clear that the words of the prevention clause are
not those that Congress used when it meant to deal with every
situation in which a single government official was prevented from
discharging his duties. To be sure, in an earlier day of scarce law
enforcement personnel, rudimentary communication, and slow
transportation, in some situations it might have been possible to
overthrow the capacity of government by overthrowing one official
alone. But a more ambitious conspiratorial object would be required
under normal modern conditions, and in order to satisfy the
requirement of affecting the law enforcement system sufficiently,
such a con-
301
spiracy would need to envision action capable of countering
numbers of officers or injuring their responsive capacity (as by
disabling their communication system, for example).
The requirement of an object to thwart the capacity of law
enforcement authority to provide equal protection of the laws thus
narrows the scope of conspiracies actionable under the prevention
clause. It does so to such a degree that no reason appears for
narrowing it even more by a view of equal protection more
restrictive than that of the Fourteenth Amendment.
B
Equally inapposite to the prevention clause is the second
Griffin-Carpenter deprivation clause limitation that where a
conspiracy to deny equal protection would interfere with exercise
of a federal constitutional right, it be a right "protected against
private, as well as official encroachment,"
Carpenters, 463
U. S., at 833. The justification for the Court's initial enquiry
concerning rights protected by the Constitution against private
action lay in its stated concern about the constitutional limits of
congressional power to regulate purely private action.
Griffin,
supra, at 104. Once again, however, the reason that there is no
arguable need to import the extratextuallimitation from the
deprivation clause into the prevention clause lies in the
prevention clause's distinctive requirement that the purpose of a
conspiracy actionable under its terms must include a purpose to
accomplish its object by preventing or hindering officials in the
discharge of their constitutional responsibilities. The
conspirators' choice of this means to work their will on their
victims would be significant here precisely because the act of
frustrating or thwarting state officials in their exercise of the
State's police power would amount simply to an extralegal way of
determining how that state power would be exercised. It would, in
real terms, be the exercise of state power itself. To the degree
that private conspirators would arrogate the State's police power
to themselves to thwart equal protection by
302
imposing what amounts to a policy of discrimination in place of
the Constitution's mandate, their action would be tantamount to
state action and be subject as such to undoubted congressional
authority to penalize any exercise of state police power that would
abridge the equal protection guaranteed by the Fourteenth
Amendment. That is to say, Congress is no less able to legislate
against unconstitutional exercises of state authority by
conspiratorial usurpation than it is to counter unconstitutional
action taken by those formally vested with state authority.
This equation of actionable conspiracies with state action is
indeed central to the reading given to the prevention clause by the
Griffin Court. In reasoning that the deprivation clause
contained no state action requirement, the Court contrasted the
text of that clause with the language of three other provisions
indicating, respectively, "three possible forms for a state action
limitation on § 1985(3)."
Griffin, 403 U. S., at 98. One
such limitation that might have been read into the deprivation
clause was "that there must be interference with or influence upon
state authorities."
Ibid. The Court declined to tack that
requirement onto the deprivation clause because its inclusion in
the prevention clause indicated that Congress intended it to apply
there and nowhere else. The relevant point here is that the whole
basis of the
Griffin Court's analysis was that "interference
with or influence on state authorities" was state action, and it
follows from
Griffin's own premises that no
guarantee-against-privateencroachment condition would have been
needed even then to allay any apprehension that in reaching the
private conspiracies described by the prevention clause, Congress
might be exceeding its authority under § 5 of the Fourteenth
Amendment.
Accordingly, I conclude that the prevention clause may be
applied to a conspiracy intended to hobble or overwhelm the
capacity of duly constituted state police authorities to secure
equal protection of the laws, even when the conspirators' ani-
303
mus is not based on race or a like class characteristic, and
even when the ultimate object of the conspiracy is to violate a
constitutional guarantee that applies solely against state
action.
V
Turning now to the application of the prevention clause as I
thus read it, I conclude that a conspiracy falls within the terms
of the prevention clause when its purpose is to hinder or prevent
law enforcement authorities from giving normal police protection to
women attempting to exercise the right to abortion recognized in
Planned Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833
(1992), and
Roe v.
Wade, 410 U. S. 113 (1973). My
reason for this is not a view that a State's frustration of an
individual's choice to obtain an abortion would, without more,
violate equal protection, but that a classification necessarily
lacks any positive relationship to a legitimate state purpose, and
consequently fails rationalbasis scrutiny, when it withdraws a
general public benefit on account of the exercise of a right
otherwise guaranteed by the Constitution. See
Police Dept. of
Chicago v.
Mosley, 408 U. S. 92, 95 (1972)
(applying the Equal Protection Clause and finding no "appropriate
governmental interest suitably furthered" by a discrimination that
would independently violate the First Amendment). While such a
discrimination, were it wrought by the State, could be treated as a
burden on the exercise of a right protected by a substantive due
process guarantee, see
Casey, supra, and forbidden as such,
the denial of generally available civic benefits to one group
solely because its members seek what the Constitution guarantees
would just as clearly be a classification for a forbidden purpose,
which is to say, independently a violation of equal protection. See
Mosley, supra; Carey v.
Brown, 447 U. S. 455 (1980).9
When private individuals conspire for the pur-
9 I emphasize the substantive due process guarantee at issue
here because my analysis rests on the fact that, treating the
conspirators as the State, the imposition of restrictions on
abortion more strict than those
304
pose of arrogating and, in effect, exercising the State's power
in a way that would thus violate equal protection if so exercised
by state officials, the conspiracy becomes actionable when
implemented by an act "whereby [a person] is injured in his person
or property, or deprived of ... any right or privilege of a citizen
of the United States." § 1985(3).10
permitted under the Constitution is not a legitimate public
purpose. I do not reach the question whether and how the equal
protection requirement in the prevention clause would be violated
by a conspiracy which, if charged to the State, would amount to a
denial of police protection to individuals who are not attempting
to exercise a constitutional right.
10 The scope of this construction of the prevention clause is
limited. It certainly would not forbid any conduct, unlike that at
issue here, protected by the First Amendment. Nor would it reach
even demonstrations that have only the incidental effect of
overwhelming local police authorities, for the statute by its terms
requires a "purpose" to "preven[t] or hinde[r] the constituted
authorities of any State or Territory from giving or securing to
all persons within such State or Territory the equal protection of
the laws." Indeed, it would not necessarily reach even most types
of civil disobedience that may be intended to overwhelm police by
inviting multiple arrests, because the purpose of these is not
ordinarily to discriminate against individuals on the basis of
their exercise of an independently protected constitutional right.
See n. 9,
supra.
As to the lunch counter sit-in protests of the early 1960's, to
which the Court refers, see
ante, at 282, and n. 14, if the
cases that made it to this Court are representative, these normally
were not "mass" demonstrations, but rather led to the arrests of
small groups of orderly students who refused to leave segregated
establishments when requested to do so. See,
e. g., Bouie v.
City of Columbia, 378 U. S. 347, 348 (1964)
("two Negro college students");
Bell v.
Maryland,
378 U. S. 226,
227 (1964) ("12 Negro students");
Robinson v.
Florida, 378
U. S. 153 (1964) (an integrated group of 18 blacks and whites);
Barr v.
City of Columbia, 378 U. S. 146, 147 (1964)
("five Negro college students");
Griffin v.
Maryland,
378 U. S. 130,
132 (1964) ("five young Negroes");
Lombard v.
Louisiana, 373
U. S. 267, 268 (1963) ("three Negro and one white college
students" seeking service at a refreshment counter "designed to
accommodate 24 persons");
Peterson v.
Greenville,
373 U. S. 244,
245, 247 (1963) (10 "Negro boys and girls" seeking service at a
lunch counter that "was designed to accommodate 59 persons").
In any event, under the construction I adopt today, a lunch
counter sitin would not have been actionable even if police had
been overwhelmed
305
VI
The only remaining question is whether respondents have
demonstrated, and the District Court has found, a conspiracy
because, for example, protesters arrested for trespass were
immediately replaced by others who prevented police from barring
integration of the lunch counter, leading to mass arrests. This is
so because the protesters would not have deprived the owner of the
segregated lunch counter of any independently protected
constitutional right. See
Roberts v.
United States
Jaycees, 468 U.
S. 609, 618-622 (1984) (no associational right on the part of
individual members to exclude women from the Jaycees);
Heart of
Atlanta Motel, Inc. v.
United States, 379 U. S. 241,258-261
(1964) (Title II of the Civil Rights Act of 1964 prohibiting
discrimination in places of public accommodation does not work a
deprivation of liberty or property without due process of law, nor
a taking of property without just compensation).
The Court correctly describes the holding of
Heart of
Atlanta, but then ignores the import of that holding in
reaching its conclusion. It argues that government action that
"would have been the equivalent of what those conducting the
sit-ins did," i.
e., government action preventing restaurant
owners from discriminating in provision of service against blacks,
would have violated the Constitution by "physically occupy[ing the
restaurant owners'] property without due process and without just
compensation." See
ante, at 282, n. 14. Whether the
"property" to which the Court refers is the lunch counter itself,
or the restaurant owners' "right to exclude blacks from their
establishments" on the basis of race,
ibid., assuming that
could even be described as one of that bundle of rights that made
up such a restaurant owner's property (a dubious proposition, see,
e. g.,
Lane v.
Cotton, 12 Mod. 472, 484 (K. B.
1701) (common-law duty of innkeepers to serve potential patrons
equally, without regard to personal preference, so long as they can
be accommodated)), the Court does not explain how, if such
government action would violate the Constitution, Title II of the
Civil Rights Act could provide "legal warrant for the physical
occupation,"
ante, at 282, n. 14, without similarly
offending the Takings and Due Process Clauses.
There is, additionally, an independent reason apart from the
absence of any constitutional right on the restaurant owner's part,
that a sit-in demonstration would not be actionable under my
construction of the prevention clause. Although the question was
left open in the sit-in cases decided by this Court in 1963 and
1964, see Paulsen, The Sit-In Cases of 1964: "But Answer Came There
None," 1964 S. Ct. Rev. 137 (1964), and was then largely mooted by
the adoption of the Civil Rights Act of 1964,
306
thus actionable under the prevention clause.ll While I think
that all of the requisite findings would be supportable on this
record, one such finding has not been expressly made.
The District Court found that petitioners conspired to cause
respondent clinics to cease operations by trespassing on their
property and physically blocking entry into and exit from the
clinics, see 726 F. Supp., at 1489, rendering existing and
prospective patients, as well as physicians and medical staff,
unable to enter the clinic to render or receive medical counseling
or advice.
Ibid. The District Court found that petitioners'
actions were characteristically undertaken without notice and
typically overwhelmed local police officials invested with the law
enforcement component of the State's police power, rendering them
unable for a substantial period to give or secure the police
protection otherwise extended to all persons going about their
lawful business on the streets and on private premises.
Id.,
at 1489, 1490, and n. 4. The victims were chosen because they would
be making choices falling within the scope of recognized
substantive due process protection, id., at 1489, choices that may
not be made the basis for discriminatory state classifications
applied to deny state services routinely made available to all
persons. The District Court found that the effects of thus
replacing constituted authority with a lawless regime would create
a substantial risk of physical harm,
ibid., and of damage to
respondents' property, id., at 1489-1490, a conclusion amply
government enforcement of private segregation by use of a state
trespass law, rather than "securing to all persons ... the equal
protection of the laws," itself amounted to an unconstitutional act
in violation of the Equal Protection Clause of the Fourteenth
Amendment. Cf.
Shelley v.
Kraemer, 334 U. S. 1 (1948).
11 As the Court observes,
ante, at 285, n. 16, I do not
address the propriety of injunctive relief in this case even though
it was addressed by the parties in supplemental briefs on
reargument. Unlike the prevention clause question, it is not
"fairly included" within the questions upon which certiorari was
granted, and therefore its consideration by the Court would be
inappropriate. See this Court's Rule 14.1(a).
307
supported by the record evidence of personal assaults and
tortious restrictions on lawful movement, as well as damage to
property, at petitioners' previous demonstrations. See,
These facts would support a conclusion that petitioners'
conspiracy had a "purpose of preventing or hindering the
constituted authorities of [Virginia] from giving or securing to
all persons within [Virginia] the equal protection of the laws,"
and it might be fair to read such a finding between the lines of
the District Court's express conclusions. But the finding was not
express, and the better course is to err on the side of seeking
express clarification. Certainly that is true here, when other
Members of the Court think it appropriate to remand for further
proceedings. I conclude therefore that the decision of the Court of
Appeals should be vacated, and the case be remanded for
consideration of purpose and for a final determination whether
implementation of this conspiracy was actionable under the
prevention clause of 42 U. S. C. § 1985(3).
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,
dissenting.
After the Civil War, Congress enacted legislation imposing on
the Federal Judiciary the responsibility to remedy both abuses of
power by persons acting under color of state law and lawless
conduct that state courts are neither fully competent, nor always
certain, to prevent.1 The Ku Klux Act of 1871, 17 Stat. 13, was a
response to the massive, organized lawlessness that infected our
Southern States during the post-Civil War era. When a question
concerning this statute's coverage arises, it is appropriate to
consider whether
1 Thus, for example, the Sherman Act, 26 Stat. 209, was a
response to a concern about concentrations of economic power that
could not be effectively controlled by state enforcement of
common-law doctrines of restraint of trade. See W. Letwin, Law and
Economic Policy in America 77-85 (1980).
308
the controversy has a purely local character or the kind of
federal dimension that gave rise to the legislation.
Based on detailed, undisputed findings of fact, the District
Court concluded that the portion of § 2 of the Ku Klux Act now
codified at 42 U. S. C. § 1985(3) provides a federal remedy for
petitioners' violent concerted activities on the public streets and
private property of law-abiding citizens.
National
Organization for Women v.
Operation Rescue, 726 F. Supp.
1483 (ED Va. 1989). The Court of Appeals affirmed.
National
Organization for Women v.
Operation Rescue, 914 F.2d
582 (CA4 1990). The holdings of the courts below are supported
by the text and the legislative history of the statute and are
fully consistent with this Court's precedents. Admittedly,
important questions concerning the meaning of § 1985(3) have been
left open in our prior cases, including whether the statute covers
genderbased discrimination and whether it provides a remedy for the
kind of interference with a woman's right to travel to another
State to obtain an abortion revealed by this record. Like the
overwhelming majority of federal judges who have spoken to the
issue,2 I am persuaded that traditional princi-
2 See Volunteer Medical Clinic, Inc. v. Operation Rescue,
948 F.2d
218 (CA6 1991); National Organization for Women v. Operation
Rescue,
914 F.2d
582 (CA4 1990) (case below); New York State National
Organization for Women v. Terry,
886 F.2d
1339 (CA2 1989), cert. denied, 495 U. S. 947 (1990); Women's
Health Care Services v. Operation Rescue-National, 773 F. Supp. 258
(Kan. 1991); Planned Parenthood Assn. of San Mateo Cty. v. Holy
Angels Catholic Church, 765 F. Supp. 617 (ND Cal. 1991); National
Organization for Women v. Operation Rescue, 747 F. Supp. 760 (DC
1990); Southwestern Medical Clinics of Nevada, Inc. v. Operation
Rescue, 744 F. Supp. 230 (Nev. 1989); National Organization for
Women v. Operation Rescue, 726 F. Supp. 1483 (ED Va. 1989) (case
below); Portland Feminist Women's Health Center v. Advocates for
Life, Inc., 712 F. Supp. 165 (Ore. 1988); Roe v. Operation Rescue,
710 F. Supp. 577 (ED Pa. 1989); and New York State National
Organization for Women v. Terry, 697 F. Supp. 1324 (SDNY 1988); but
see Lucero v. Operation Rescue of Birmingham,
954
F.2d 624 (CAll 1992); National Abortion Federation v. Operation
Rescue, 721
309
pIes of statutory construction readily provide affirmative
answers to these questions.
It is unfortunate that the Court has analyzed this case as
though it presented an abstract question of logical deduction
rather than a question concerning the exercise and allocation of
power in our federal system of government. The Court ignores the
obvious (and entirely constitutional) congressional intent behind §
1985(3) to protect this Nation's citizens from what amounts to the
theft of their constitutional rights by organized and violent mobs
across the country.
The importance of the issue warrants a full statement of the
facts found by the District Court before reaching the decisive
questions in this case.
I
Petitioners are dedicated to a cause that they profoundly
believe is far more important than mere obedience to the laws of
the Commonwealth of Virginia or the police power of its cities. To
achieve their goals, the individual petitioners "have agreed and
combined with one another and with defendant Operation Rescue to
organize, coordinate and participate in 'rescue' demonstrations at
abortion clinics in various parts of the country, including the
Washington metropolitan area. The purpose of these 'rescue'
demonstrations is to disrupt operations at the target clinic and
indeed ultimately to cause the clinic to cease operations
entirely."3
The scope of petitioners' conspiracy is nationwide; it far
exceeds the bounds or jurisdiction of anyone State. They have
blockaded clinics across the country, and their activities have
been enjoined in New York, Pennsylvania, Washington, Connecticut,
California, Kansas, and Nevada, as well as the
F. Supp. 1168 (CD Cal. 1989); and
Lucero v.
Operation
Rescue of Birmingham, 772 F. Supp. 1193 (ND Ala. 1991).
3 National Organization for Women v. Operation Rescue, 726 F.
Supp., at 1488.
310
District of Columbia metropolitan area. They have carried out
their "rescue" operations in the District of Columbia and Maryland
in defiance of federal injunctions.4
Pursuant to their overall conspiracy, petitioners have
repeatedly engaged in "rescue" operations that violate local law
and harm innocent women. Petitioners trespass on clinic property
and physically block access to the clinic, preventing patients, as
well as physicians and medical staff, from entering the clinic to
render or receive medical or counseling services. Uncontradicted
trial testimony demonstrates that petitioners' conduct created a
"substantial risk that existing or prospective patients may suffer
physical or mental harm." 5 Petitioners make no claim that their
conduct is a legitimate form of protected expression.
Petitioners' intent to engage in repeated violations of law is
not contested. They trespass on private property, interfere with
the ability of patients to obtain medical and coun-
4Id., at 1490.
5
Id., at 1489. The District Court's findings described
the risk of serious physical and psychological injuries caused by
petitioners' conduct:
"For example, for some women who elect to undergo an abortion,
clinic medical personnel prescribe and insert a pre-abortion
laminaria to achieve cervical dilation. In these instances, timely
removal of the laminaria is necessary to avoid infection, bleeding
and other potentially serious complications. If a 'rescue'
demonstration closes a clinic, patients requiring the laminaria
removal procedure or other vital medical services must either
postpone the required treatment and assume the attendant risks or
seek the services elsewhere. Uncontradicted trial testimony
established that there were numerous economic and psychological
barriers to obtaining these services elsewhere. Hence, a 'rescue'
demonstration creates a substantial risk that a clinic's patients
may suffer physical and mental harm.
" ... Uncontradicted trial testimony by Dickinson-Collins, a
trained mental health professional, established that blockading
clinics and preventing patient access could cause stress, anxiety
and mental harm (i) to women with abortions scheduled for that
time, (ii) to women with abortion procedures (i. e., laminaria
insertion) already underway and (iii) to women seeking counselling
concerning the abortion decision."
Ibid. (footnote
omitted).
311
seling services, and incite others to engage in similar unlawful
activity. They also engage in malicious conduct, such as defacing
clinic signs, damaging clinic property, and strewing nails in
clinic parking lots and on nearby public streets.6 This unlawful
conduct is "vital to [petitioners'] avowed purposes and goals." 7
They show no signs of abandoning their chosen method for advancing
their goals.8
Rescue operations effectively hinder and prevent the constituted
authorities of the targeted community from providing local citizens
with adequate protection.9 The lack of advance warning of
petitioners' activities, combined with limited police department
resources, makes it difficult for the police to prevent
petitioners' ambush by "rescue" from closing a clinic for many
hours at a time. The trial record is replete with examples of
petitioners overwhelming local law enforcement officials by sheer
force of numbers. In one "rescue" in Falls Church, Virginia, the
demonstrators vastly outnumbered the police department's complement
of 30 deputized officers. The police arrested 240 rescuers, but
were unable to prevent the blockade from closing the clinic for
more than six hours. Because of the large-scale, highly organized
nature of petitioners' activities, the local authorities are unable
to protect the victims of petitioners' conspiracy.lo
6 Ibid.
7Id., at 1495.
8Id., at 1490.
9 Presumably this fact, as well as her understanding of the
jurisdictional issue, contributed to the decision of the attorney
general of Virginia to file a brief
amicus curiae supporting
federal jurisdiction in this case. The city attorney for Falls
Church, Virginia, has also filed an
amicus curiae brief
supporting respondents.
10 See id., at 1489, n. 4. The District Court's findings contain
several examples illustrating the character of petitioners'
"rescue" operations:
"For example, on almost a weekly basis for the last five (5)
years, Commonwealth Women's Clinic has been the target of 'rescue'
demonstrations by Operation Rescue. One of the largest of these
occurred on October 29, 1988. That 'rescue' succeeded in closing
the Clinic from 7:00 a.m. to 1:30 p.m., notwithstanding the efforts
of the Falls Church Police Depart-
312
Petitioners' conspiracy had both the purpose and effect of
interfering with interstate travel. The number of patients who
cross state lines to obtain an abortion obviously depends, to some
extent, on the location of the clinic and the quality of its
services. In the Washington metropolitan area, where interstate
travel is routine, 20 to 30 percent of the patients at some clinics
were from out of State, while at least one clinic obtained over
half its patients from other States. The District Court's
conclusions in this regard bear repetition:
"[Petitioners] engaged in this conspiracy for the purpose,
either directly or indirectly, of depriving women seeking abortions
and related medical and counselling services, of the right to
travel. The right to travel includes the right to unobstructed
interstate travel to obtain an abortion and other medical services
.... Testimony at trial establishes that clinics in Northern
Virginia provide medical services to plaintiffs' members and
patients who travel from out of state. Defendants' activities
interfere with these persons' right to unimpeded interstate travel
by blocking their access to abor-
ment. 'Rescuers' did more than trespass on to the clinic's
property and physically block all entrances and exits. They also
defaced clinic signs, damaged fences and blocked ingress into and
egress from the Clinic's parking lot by parking a car in the center
of the parking lot entrance and deflating its tires. On this and
other occasions, rescuers' have strewn nails on the parking lots
and public streets abutting the clinics to prevent the passage of
any cars. Less than a year later, in April 1989, a similar 'rescue'
demonstration closed the Metropolitan Family Planning Institute in
the District of Columbia for approximately four (4) hours.
" ... Clinics in Maryland and the District of Columbia were
closed as a result of 'rescues' on November 10, 11 and 12, 1989.
The following weekend, on November 18, 1989, the Hillcrest Women's
Surgi-Center in the District of Columbia was closed for eleven (11)
hours as a result of a 'rescue' demonstration. Five (5) women who
had earlier commenced the abortion process at the clinic by having
laminaria inserted were prevented by 'rescuers' from entering the
clinic to undergo timely laminaria removal."
Id., at
1489-1490 (footnote omitted).
313
tion clinics. And, the Court is not persuaded that clinic
closings affect only intra-state travel, from the street to the
doors of the clinics. Were the Court to hold otherwise,
interference with the right to travel could occur only at state
borders. This conspiracy, therefore, effectively deprives
organizational plaintiffs' non-Virginia members of their right to
interstate travel." 11
To summarize briefly, the evidence establishes that petitioners
engaged in a nationwide conspiracy; to achieve their goal they
repeatedly occupied public streets and trespassed on the premises
of private citizens in order to prevent or hinder the constituted
authorities from protecting access to abortion clinics by women, a
substantial number of whom traveled in interstate commerce to reach
the destinations blockaded by petitioners. The case involves no
ordinary trespass, nor anything remotely resembling the peaceful
picketing of a local retailer. It presents a striking contemporary
example of the kind of zealous, politically motivated, lawless
conduct that led to the enactment of the Ku Klux Act in 1871 and
gave it its name.
II
The text of the statute makes plain the reasons Congress
considered a federal remedy for such conspiracies both necessary
and appropriate. In relevant part the statute contains two
independent clauses which I separately identify in the following
quotation:
"If two or more persons in any State or Territory conspire or go
in disguise on the highway or on the premises of another, [first]
for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws; or
[second] for the pur-
11
Id., at 1493.
314
pose of preventing or hindering the constituted authorities of
any State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the laws;
... in any case of conspiracy set forth in this section, if one or
more persons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy, whereby another is
injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against anyone or more of the conspirators." 42 U. S. C. §
1985(3).
The plain language of the statute is surely broad enough to
cover petitioners' conspiracy. Their concerted activities took
place on both the public "highway" and the private "premises of
another." The women targeted by their blockade fit comfortably
within the statutory category described as "any person or class of
persons." Petitioners' interference with police protection of women
seeking access to abortion clinics "directly or indirectly"
deprived them of equal protection of the laws and of their
privilege of engaging in lawful travel. Moreover, a literal reading
of the second clause of the statute describes petitioners' proven
"purpose of preventing or hindering the constituted authorities of
any State or Territory" from securing "to all persons within such
State or Territory the equal protection of the laws."
No one has suggested that there would be any constitutional
objection to the application of this statute to petitioners'
nationwide conspiracy; it is obvious that any such constitutional
claim would be frivolous. Accordingly, if, as it sometimes does,
the Court limited its analysis to the statutory text, it would
certainly affirm the judgment of the Court of Appeals. For both the
first clause and the second clause of § 1985(3) plainly describe
petitioners' conspiracy.
315
III
The Court bypasses the statute's history, intent, and plain
language in its misplaced reliance on prior precedent. Of course,
the Court has never before had occasion to construe the second
clause of § 1985(3). The first clause, however, has been narrowly
construed in
Collins v.
Hardyman, 341 U. S. 651 (1951),
Griffin v.
Breckenridge, 403 U. S. 88 (1971), and
Carpenters v.
Scott, 463 U. S. 825 (1983). In
the first of these decisions, the Court held that § 1985(3) did not
apply to wholly private conspiracies.12 In
Griffin the Court
rejected that view but limited the application of the statute's
first clause to conspiracies motivated by discriminatory intent to
deprive plaintiffs of rights constitutionally protected against
private (and not just governmental) deprivation. Finally,
Carpenters reemphasized that the first clause of § 1985(3)
offers no relief from the violation of rights protected against
only state interference. 463 U. S., at 830-834. To date, the Court
has recognized as rights protected against private encroachment
(and, hence, by § 1985(3)) only the constitutional right of
interstate travel and rights granted by the Thirteenth
Amendment.
For present purposes, it is important to note that in each of
these cases the Court narrowly construed § 1985(3) to avoid what it
perceived as serious constitutional problems with the statute
itself. Because those problems are not at issue here, it is even
more important to note a larger point about our precedent. In the
course of applying Civil War era legislation to civil rights issues
unforeseeable in 1871, the Court has adopted a flexible approach,
interpreting the statute to reach current concerns without
exceeding the bounds of its intended purposes or the constitutional
powers
12 The Court subsequently noted that the constitutional concerns
that had supported the limiting construction adopted in
Collins would not apply to "a private conspiracy so massive
and effective that it supplants [state] authorities and thus
satisfies the state action requirement."
Griffin, 403 U. S.,
at 98, and n. 5.
316
of CongressP We need not exceed those bounds to apply the
statute to these facts.
The facts and decision in Griffin are especially instructive
here. In overruling an important part of
Collins, the Court
found that the conduct the plaintiffs alleged-a Mississippi highway
attack on a white man suspected of being a civil rights worker and
the two black men who were passengers in his car-was emblematic of
the antiabolitionist violence that § 1985(3) was intended to
prevent. A review of the legislative history demonstrated, on the
one hand, that Congress intended the coverage of § 1985(3) to reach
purely private conspiracies, but on the other hand, that it wanted
to avoid the "constitutional shoals" that would lie in the path of
a general federal tort law punishing an ordinary assault and
battery committed by two or more persons. The racial motivation for
the battery committed by the defendants in the case before the
Court placed their conduct "close to the core of the coverage
intended by Congress." 403 U. S., at 103. It therefore satisfied
the limiting construction that the Court placed on the reference to
a deprivation of "equal" privileges and immunities in the first
clause of the Act. The Court explained that construction:
"The constitutional shoals that would lie in the path of
interpreting § 1985(3) as a general federal tort law can be avoided
by giving full effect to the congressional purpose-by requiring, as
an element of the cause of action, the kind of invidiously
discriminatory motivation stressed by the sponsors of the limiting
amendment. See the remarks of Representatives Willard and
Shellabarger, [Congo Globe, 42d Cong., 1st Sess., App. 100 (1871)].
The language requiring intent to deprive of equal
protection, or equal privileges and immunities, means that
there must be some racial, or perhaps other-
13 The Court's caution in this regard echoes the recorded
debates of the enacting Congress itself. See id., at 99-102.
317
wise class-based, invidiously discriminatory animus behind the
conspirators' action." Id., at 101-102.
A footnote carefully left open the question "whether a
conspiracy motivated by invidiously discriminatory intent other
than racial bias would be actionable
under the portion of §
1985(3)
before us." Id., at 102, n. 9 (emphasis added). N
either of our two more recent opinions construing § 1985(3) has
answered the question left open in
Griffin or has involved
the second clause of the statute.14
After holding that the statute did apply to such facts, and that
requiring a discriminatory intent would prevent its
overapplication, the
Griffin Court held that § 1985(3) would
be within the constitutional power of Congress if its coverage were
limited to constitutional rights secured against private action.
The facts in that case identified two such grounds.
14 In
Great American Fed. Sav. &
Loan Assn. v.
Novotny, 442
U. S. 366 (1979), we held that § 1985(3) does not provide a
remedy for a retaliatory discharge that violated Title VII of the
Civil Rights Act of 1964, 42 U. S. C. § 2000e
et seq. We had
no occasion to agree or to disagree with the Court of Appeals'
holding that conspiracies motivated by an invidious animus against
women fall within § 1985(3) because we concluded that the
deprivation of the subsequently created Title VII statutory right
could not form the basis for a § 1985(3) claim.
Carpenters v.
Scott, 463 U. S. 825 (1983),
arose out of a labor dispute in which union organizers had
assaulted two nonunion employees and vandalized equipment owned by
the employer. We held that § 1985(3) did not provide a remedy for
two reasons. First, the alleged violation of the First Amendment
was insufficient because there was no claim that the State was
involved in the conspiracy or that the aim of the conspiracy was to
influence state action. Second, we concluded that group action
resting on economic or commercial animus, such as animus in favor
of or against unionization, did not constitute the kind of
class-based discrimination discussed in our opinion in
Griffin v.
Breckenridge, 403 U. S. 88 (1971). As
the introductory paragraph to the opinion made clear, the case
involved only the scope of the remedy made available by the first
clause of § 1985(3). See 463 U. S., at 827.
318
One ground was § 2 of the Thirteenth Amendment. The other was
the right to travel. The Court explained how the petitioners could
show a violation of the latter. As with the class-based animus
requirement, the Court was less concerned with the specifics of
that showing than with the constitutionality of § 1985(3); it
emphasized that whatever evidence they presented had to "make it
clear that the petitioners had suffered from conduct that Congress
may reach under its power to protect the right of interstate
travel."
Id., at 106.
The concerns that persuaded the Court to adopt a narrow reading
of the text of § 1985(3) in
Griffin are not presented in
this case. Giving effect to the plain language of § 1985(3) to
provide a remedy against the violent interference with women
exercising their privilege-indeed, their right-to engage in
interstate travel to obtain an abortion presents no danger of
turning the statute into a general tort law. Nor does anyone
suggest that such relief calls into question the constitutional
powers of Congress. When the
Griffin Court rejected its
earlier holding in
Collins, it provided both an
"authoritative construction" of § 1985(3), see
ante, at 289
(SOUTER, J., concurring in part and dissenting in part), and a
sufficient reason for rejecting the doctrine of
stare
decisis whenever it would result in an unnecessarily narrow
construction of the statute's plain language. The Court wrote:
"Whether or not Collins v. Hardyman was correctly
decided on its own facts is a question with which we need not here
be concerned. But it is clear, in the light of the evolution of
decisional law in the years that have passed since that case was
decided, that many of the constitutional problems there perceived
simply do not exist. Little reason remains, therefore, not to
accord to the words of the statute their apparent meaning." 403 U.
S., at 95-96.
319
Once concerns about the constitutionality of § 1985(3) are
properly put aside, we can focus more appropriately on giving the
statute its intended effect. On the facts disclosed by this record,
I am convinced that both the text of the statute and its underlying
purpose support the conclusion that petitioners' conspiracy was
motivated by a discriminatory animus and violated respondents'
protected right to engage in interstate travel.
IV
The question left open in
Griffin-whether the coverage of
§ 1985(3) is limited to cases involving racial bias-is easily
answered. The text of the statute provides no basis for excluding
from its coverage any cognizable class of persons who are entitled
to the equal protection of the laws. This Court has repeatedly and
consistently held that gender-based classifications are subject to
challenge on constitutional grounds, see,
e. g., Reed v.
Reed, 404 U. S.
71 (1971);
Mississippi Univ. for Women v.
Hogan,
458 U. S. 718
(1982). A parallel construction of post-Civil War legislation that,
in the words of Justice Holmes, "dealt with Federal rights and with
all Federal rights, and protected them in the lump,"
United
States
The legislative history of the Act confirms the conclusion that
even though it was primarily motivated by the lawless conduct
directed at the recently emancipated citizens, its protection
extended to "all the thirty-eight millions of the citizens of this
nation." Congo Globe, 42d Cong., 1st Sess., 484 (1871). Given then
prevailing attitudes about the respective roles of males and
females in society, it is possible that the enacting legislators
did not anticipate protection of women against class-based
discrimination. That, however, is not a sufficient reason for
refusing to construe the statutory text in accord with its plain
meaning, particularly when that construction fulfills the central
purpose of the legislation. See
Union Bank v.
Wolas,
502 U. S. 151,
155-156 (1991).
320
The gloss that Justice Stewart placed on the statute in Griffin,
then, did not exclude gender-based discrimination from its
coverage. But it does require us to resolve the question whether a
conspiracy animated by the desire to deprive women of their right
to obtain an abortion is "class based."
v
The terms "animus" and "invidious" are susceptible to different
interpretations. The Court today announces that it could find
class-based animus in petitioners' mob violence "only if one of two
suggested propositions is true: (1) that opposition to abortion can
reasonably be presumed to reflect a sex-based intent, or (2) that
intent is irrelevant, and a classbased animus can be determined
solely by effect."
Ante, at 270.
The first proposition appears to describe a malevolent form of
hatred or ill will. When such an animus defends itself as
opposition to conduct that a given class engages in exclusively or
predominantly, we can readily unmask it as the intent to
discriminate against the class itself. See ibid. Griffin, for
instance, involved behavior animated by the desire to keep
African-American citizens from exercising their constitutional
rights. The defendants were no less guilty of a class-based animus
because they
also opposed the cause of desegregation or
rights of African-American suffrage, and the Court did not require
the plaintiffs in Griffin to prove that their beatings were
motivated by hatred for African-Americans. Similarly, a decision
disfavoring female lawyers,15 female owners of liquor estab-
15 See
Bradwell v.
State, 16 Wall. 130 (1873). The
reasoning of the concurring Justices surely evidenced invidious
animus, even though it rested on traditional views about a woman's
place in society, rather than on overt hostility toward women.
These Justices wrote:
"[T]he civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and
destinies of man and woman. Man is, or should be, woman's protector
and defender. The natural and
321
lishments,16 or pregnant women 17 may appropriately be
characterized as "invidiously discriminatory" even if the
decisionmakers have goals other than-or in addition
todiscrimination against individual women.18
The second proposition deserves more than the Court's disdain.
It plausibly describes an assumption that intent
proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life. The
constitution of the family organization, which is founded in the
divine ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the domain and
functions of womanhood. The harmony, not to say identity, of
interests and views which belong, or should belong, to the family
institution is repugnant to the idea of a woman adopting a distinct
and independent career from that of her husband. So firmly fixed
was this sentiment in the founders of the common law that it became
a maxim of that system of jurisprudence that a woman had no legal
existence separate from her husband, who was regarded as her head
and representative in the social state; and, notwithstanding some
recent modifications of this civil status, many of the special
rules of law flowing from and dependent upon this cardinal
principle still exist in full force in most States. One of these
is, that a married woman is incapable, without her husband's
consent, of making contracts which shall be binding on her or him
... . " ... The paramount destiny and mission of woman are to
fulfil the noble and benign offices of wife and mother. This is the
law of the Creator."
Id., at 141 (Bradley, J., joined by
Swayne and Field, JJ., concurring in judgment).
The Justices who subscribed to those views were certainly not
misogynists, but their basic attitude-or animus-toward women is
appropriately characterized as "invidiously discriminatory."
16 See
Goesaert v.
Cleary, 335 U. S. 464 (1948). In
a prescient dissenting opinion written in 1948 that accords with
our current understanding of the idea of equality, Justice Rutledge
appropriately selected the word "invidious" to characterize a
statutory discrimination between male and female owners of liquor
establishments.
Id., at 468.
17 See
Nashville Gas Co. v.
Satty, 434 U. S. 136 (1977).
18 Last Term in
Fort Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of Natural Resources, 504 U. S. 353 (1992), we
found that Michigan had discriminated against interstate commerce
in garbage even though its statutory scheme discriminated against
most of the landfill operators in Michigan as well as those located
in other States.
322
lies behind the discriminatory effects from which Congress
intended § 1985(3) to protect American citizens. Congress may
obviously offer statutory protections against behavior that the
Constitution does not forbid, including forms of discrimination
that undermine § 1985(3)'s guarantee of equal treatment under the
law. Regardless of whether the examples of paternalistic
discrimination given above involve a constitutional violation, as a
matter of statutory construction it is entirely appropriate to
conclude that each would satisfy the class-based animus requirement
because none of them poses any danger of converting § 1985(3) into
a general tort law or creating concerns about the constitutionality
of the statute.
Both forms of class-based animus that the Court proposes
are present in this case.
Sex-Based Discrimination
It should be noted that a finding of class-based animus in this
case does not require finding that to disfavor abortion is
"ipso
facto" to discriminate invidiously against women. See
ante, at 271. Respondents do not take that position, and
they do not rely on abstract propositions about "opposition to
abortion"
per se. See
ante, at 269-270. Instead, they
call our attention to a factual record showing a particular lawless
conspiracy employing force to prevent women from exercising their
constitutional rights. Such a conspiracy, in the terms of the
Court's first proposition, may "reasonably be presumed to reflect a
sex-based intent." See
ante, at 270.
To satisfy the class-based animus requirement of § 1985(3), the
conspirators' conduct need not be motivated by hostility toward
individual women. As women are unquestionably a protected class,
that requirement-as well as the central purpose of the statute-is
satisfied if the conspiracy is aimed at conduct that only members
of the protected class have the capacity to perform. It is not
necessary that the intended effect upon women be the sole purpose
of the conspiracy. It
323
is enough that the conspiracy be motivated "at least in part" by
its adverse effects upon women. Cf.
Personnel Administrator of
Mass. v.
Feeney, 442 U. S. 256, 279
(1979);
Arlington Heights v.
Metropolitan Housing
Development Corp., 429 U. S. 252, 265-266
(1977). The immediate and intended effect of this conspiracy was to
prevent women from obtaining abortions. Even assuming that the
ultimate and indirect consequence of petitioners' blockade was the
legitimate and nondiscriminatory goal of saving potential life, it
is undeniable that the conspirators' immediate purpose was to
affect the conduct of women.19 Moreover, petitioners target women
because of their sex, specifically, because of their
capacity to become pregnant and to have an abortion.20
19 In
Personnel Administrator of Mass. v.
Feeney,
442 U. S. 256
(1979), we inquired whether the challenged conduct was undertaken
"at least in part 'because of,' not merely 'in spite of,' its
adverse effects upon an identifiable group."
Id., at 279. It
would be nonsensical to say that petitioners blockaded clinics "in
spite of" the effect of the blockades on women.
20 The Court mischaracterizes this analysis by ignoring the
distinction between a classification that is sex based and a
classification that constitutes sexual discrimination prohibited by
the Constitution or by statute. See
ante, at 272, n. 3. A
classification is sex based if it classifies on the basis of sex.
As the capacity to become pregnant is a characteristic necessarily
associated with one sex, a classification based on the capacity to
become pregnant is a classification based on sex.
See Sunstein, Neutrality in Constitutional Law (With Special
Reference to Pornography, Abortion, and Surrogacy), 92 Colum. L.
Rev. 1, 32-33 (1992) (footnotes omitted):
"The first point is that restrictions on abortion should be seen
as a form of sex discrimination. The proper analogy here is to a
law that is targeted solely at women, and thus contains a de jure
distinction on the basis of sex. A statute that is explicitly
addressed to women is of course a form of sex discrimination. A
statute that involves a defining characteristic or a biological
correlate of being female should be treated in precisely the same
way. If a law said that 'no woman' may obtain an abortion, it
should readily be seen as a sex-based classification. A law saying
that 'no person' may obtain an abortion has the same meaning.
"The fact that some men may also be punished by abortion
laws-for example, male doctors-does not mean that restrictions on
abortion are
324
It is also obvious that petitioners' conduct was motivated "at
least in part" by the invidious belief that individual women are
not capable of deciding whether to terminate a pregnancy, or that
they should not be allowed to act on such a decision. Petitioners'
blanket refusal to allow any women access to an abortion clinic
overrides the individual class member's choice, no matter whether
she is the victim of rape or incest, whether the abortion may be
necessary to save her life,21 or even whether she is merely seeking
advice or information about her options. Petitioners' conduct is
designed to deny
every woman the opportunity to exercise a
constitutional right that only women possess. Petitioners'
conspiracy, which combines massive defiance of the law with violent
obstruction of the constitutional rights of their fellow citizens,
represents a paradigm of the kind of conduct that the statute was
intended to cover.22
sex-neutral. Laws calling for racial segregation make it
impermissible for whites as well as blacks to desegregate, and this
does not make such laws race-neutral. Nor would it be correct to
say that restrictions on abortion merely have a discriminatory
impact on women, and that they should therefore be treated in the
same way as neutral weight and height requirements having
disproportionate effects on women. With such requirements, men and
women are on both sides of the legal line; but abortion
restrictions exclusively target women. A law that prohibited
pregnant women, or pregnant people, from appearing on the streets
during daylight would readily be seen as a form of de jure sex
discrimination. A restriction on abortion has the same sex-based
features."
21 The Court refers to petitioners' opposition to "voluntary"
abortion.
Ante, at 270. It is not clear what the Court means by
"voluntary" in this context, but petitioners' opposition is
certainly not limited to "elective" abortions. Petitioners' conduct
evidences a belief that it is better for a woman to die than for
the fetus she carries to be aborted. See nn. 5, 10, supra.
22 The Court's discussion of the record suggests that the
District Court made a finding that petitioners were not motivated
by a purpose directed at women as a class. See ibid. The District
Court made no such finding, and such a finding would be
inconsistent with the District Court's conclusion that petitioners'
gender-based animus satisfied the class-based animus requirement of
§ 1985(3), see 726 F. Supp., at 1492.
325
The Court recognizes that the requisite animus may "readily be
presumed" on the basis of the relationship between the targeted
activity and membership in the targeted class.
Ante, at 270.
But the Court insists that opposition to an act engaged in
exclusively by members of a protected class does not involve
class-based animus unless the act itself is an "irrational object
of disfavor."
Ibid. The Court's view requires a subjective
judicial interpretation inappropriate in the civil rights context,
where what seems rational to an oppressor seems equally irrational
to a victim. Opposition to desegregation, and opposition to the
voting rights of both African-Americans and women, were certainly
at one time considered "rational" propositions. But such
propositions were never free of the class-based discrimination from
which § 1985(3) protects the members of both classes.
The activity of traveling to a clinic to obtain an abortion is,
of course, exclusively performed by women. Opposition to that
activity may not be "irrational," but violent interference with it
is unquestionably "aimed at" women. The Court offers no
justification for its newly crafted suggestion that
deliberately imposing a burden on an activity exclusively
performed by women is not class-based discrimination unless
opposition to the activity is also irrational. The Court is
apparently willing to presume discrimination only when opposition
to the targeted activity is-in its eyeswholly pretextual: that is,
when it thinks that no rational person would oppose the activity,
except as a means of achieving a separate and distinct goal.23 The
Court's analysis makes sense only if every member of a protected
class
23 The limitations of this analysis are apparent from the
example the Court invokes: "A tax on wearing yarmulkes is a tax on
Jews."
Ante, at 270. The yarmulke tax would not become less
of a tax on Jews if the taxing authorities really did wish to
burden the wearing of yarmulkes. And the fact that many Jews do not
wear yarmulkes-like the fact that many women do not seek
abortions-would not prevent a finding that the tax-like
petitioners' blockade-targeted a particular class.
326
exercises all of her constitutional rights, or if no rational
excuse remains for otherwise invidious discrimination. Not every
member of every protected class chooses to exercise all of his or
her constitutional rights; not all of them want to. That many women
do not obtain abortions-that many women
oppose abortion-does
not mean that those who violently prevent the exercise of that
right by women who do exercise it are somehow cleansed of their
discriminatory intent. In enacting a law such as § 1985(3) for
federal courts to enforce, Congress asked us to see through the
excusesthe "rational" motives-that will always disguise
discrimination. Congress asked us to foresee, and speed, the day
when such discrimination, no matter how well disguised, would be
unmasked.
Statutory Relief from Discriminatory Effects
As for the second definition of class-based animus, disdainfully
proposed by the Court, ibid., there is no reason to insist that a
statutory claim under § 1985(3) must satisfy the restrictions we
impose on constitutional claims under the Fourteenth Amendment. A
congressional statute may offer relief from discriminatory effects
even if the Fourteenth Amendment prevents only discriminatory
intent.
The Court attempts to refute the finding of class-based animus
by relying on our cases holding that the governmental denial of
either disability benefits for pregnant women or abortion funding
does not violate the Constitution. That reliance is misplaced for
several reasons. Cases involving constitutional challenges to
governmental plans denying financial benefits to pregnant women,
and cases involving equal protection challenges to facially neutral
statutes with discriminatory effects, involve different concerns
and reach justifiably different results than a case involving
citizens' statutory protection against burdens imposed on their
constitutional rights.
327
In
Geduldig v.
Aiello, 417 U. S. 484 (1974), we
faced the question whether a State's disability insurance system
violated the Fourteenth Amendment by excluding benefits for normal
pregnancy. A majority of the Court concluded that the system did
not constitute discrimination on the basis of sex prohibited by the
Equal Protection Clause.
Geduldig, of course, did not
purport to establish that, as a matter of logic, a classification
based on pregnancy is gender neutral. As an abstract statement,
that proposition is simply false; a classification based on
pregnancy is a sex-based classification, just as, to use the
Court's example, a classification based on the wearing of yarmulkes
is a religion-based classification. Nor should
Geduldig be
understood as holding that, as a matter of law, pregnancy-based
classifications never violate the Equal Protection Clause. In fact,
as the language of the opinion makes clear, what
Geduldig
held was that not every legislative classification based on
pregnancy was equivalent, for equal protection purposes, to the
explicitly gender-based distinctions struck down in
Frontiero v.
Richardson, 411 U. S. 677 (1973), and
Reed v.
Reed, 404 U. S. 71 (1971). That
Geduldig must be understood in these narrower terms is
apparent from the sentence which the Court quotes in part:
"While it is true that only women can become pregnant, it does
not follow that every legislative classification concerning
pregnancy is a sex-based classification
like those considered in
Reed, supra, and Frontiero, supra." Geduldig, 417 U. S., at
496, n. 20 (emphasis added).24
Central to the holding in
Geduldig was the Court's belief
that the disability insurance system before it was a plan that
24 To his argument quoted in n. 19, supra, Professor Sunstein
adds: "It is by no means clear that
Geduldig would be
extended to a case in which pregnant people were (for example)
forced to stay indoors in certain periods, or subjected to some
other unique criminal or civil disability." 92 Colum. L. Rev., at
32, n. 122.
328
conferred benefits evenly on men and women.25 Later cases
confirmed that the holding in
Geduldig depended on an
analysis of the insurance plan as a benefit program with an overall
nondiscriminatory effect.26
Nashville Gas Co. v.
Satty, 434 U.
S. 136 (1977), applied a statute without an intent requirement
to an employer's policy denying accumulated seniority to employees
returning from pregnancy leave. Notwithstanding
Geduldig,
the Court found that the policy burdened only women, and therefore
constituted discrimination on the basis of sex. The Court stated
that "petitioner has not merely refused to extend to women a
benefit that men cannot and do not receive, but has imposed on
women a substantial burden that men need not suffer. The
distinction between benefits and burdens is more than one of
semantics." 434 U. S., at 142.27 The distinction between
25 The Court emphasized that nothing in the record suggested
that the actuarial value of the insurance package was greater for
men than for women. See 417 U. S., at 496. Indeed, even the
exclusion of coverage for pregnancy-related disability benefited
both men and women. The Court noted that dual distribution of
benefits in the now-famous lines:
"The program divides potential recipients into two
groups-pregnant women and nonpregnant persons .... The fiscal and
actuarial benefits of the program thus accrue to members of both
sexes."
Id., at 497, n. 20.
26 See,
e. g., Newport News Shipbuilding &
Dry
Dock Co. v.
EEOC, 462 U. S. 669, 677, n. 12 (1983)
(after quoting the footnote in
Geduldig which includes the
language on which the Court relies today, we stated: "The principal
emphasis in the text of the
Geduldig opinion, unlike the
quoted footnote, was on the reasonableness of the State's cost
justifications for the classification in its insurance program");
Turner v.
Utah Dept. of Employment Security, 423 U. S. 44, 45, n.
(1975)
(per curiam) (observing that the opinion below
"ma[de] no mention of coverage limitations or insurance principles
central to
[Geduldig v.]
Aiello"); General Electric
Co. v.
Gilbert, 429 U. S. 125, 137 (1976)
(relying on the reasoning of
Geduldig, the Court again
emphasized that notwithstanding a pregnancy exclusion, the plan had
not been shown to provide women, as a group, with a lower level of
health benefits).
27The abortion-funding cases cited by the Court similarly turn
on the distinction between the denial of monetary benefits and the
imposition of a burden. See
Maher v.
Roe, 432 U. S. 464,475 (1977)
("There is a basic
329
those who oppose abortion and those who physically threaten
women and obstruct their access to abortion clinics is also more
than semantic. Petitioners in this case form a mob that seeks to
impose a burden on women by forcibly preventing the exercise of a
right that only women possess. The discriminatory effect of
petitioners' conduct is beyond doubt.
Geduldig is inapplicable for another reason. The issue of
class-based animus in this case arises in a statutory, not a
constitutional, context. There are powerful reasons for giving §
1985(3) a reading that is broader than the constitutional holdings
on which the Court relies.28 In our constitutional
difference between direct state interference with a protected
activity and state encouragement of an alternative activity
consonant with legislative policy"); see also
Harris v.
McRae, 448 U.
S. 297, 313-318 (1980). In
Harris and
Maher, the
"suspect classification" that the Court considered was indigency.
Relying on
San Antonio Independent School Dist. v.
Rodriguez, 411
U. S. 1 (1973), and
Dandridge v.
Williams,
397 U. S. 471
(1970), the Court rejected the argument that "financial need alone
identifies a suspect class."
Maher, 432 U. S., at 471;
Harris, 448 U. S., at 323 (citing
Maher, 432 U. S.,
at 471).
28 A failure to meet the intent standard imposed on the
Fourteenth Amendment does not preclude a finding of class-based
animus here. Much of this Court's Fourteenth Amendment
jurisprudence concerns the permissibility of particular legislative
distinctions. The case law that has evolved focuses on how
impermissible discrimination may be inferred in the face of
arguably "neutral" legislation or policy. See
Personnel
Administrator of Mass. v.
Feeney, 442 U. S., at 274;
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S.
252, 264-266 (1977);
Washington v.
Davis,
426 U. S. 229,
242 (1976). We have recognized that even in constitutional cases
disproportionate impact may provide powerful evidence of
discrimination. See
Feeney, 442 U. S., at 279, n. 25;
Arlington Heights, 429 U. S., at 265-266;
Davis, 426
U. S., at 242. In developing the intent standard, though, we
expressed reluctance to subject facially neutrallegislation to
judicial invalidation based on effect alone. The question here is
not whether a law "neutral on its face and serving ends otherwise
within the power of government to pursue,"
Davis, 426 U. S.,
at 242, violates the Equal Protection Clause. It is indisputable
that a governmental body would violate the Constitution if, for the
purpose of burdening abortion, it infringed a person's federally
protected right to travel.
Doe v.
Bolton, 410 U. S. 179, 200
(1973). This governmental conduct would be
330
cases, we apply the intent standard to determine whether a
constitutional violation has occurred. In cases under § 1985(3), we
apply the class-based animus test not to determine whether a
constitutional violation has occurred-the violation is
independently established-but to determine whether that violation
can be remedied. Given the differing roles the intent standard and
the class-based animus requirement play in our jurisprudence, there
is no justification for applying the same stringent standards in
the context of § 1985(3) as in our constitutional cases.
As a matter of statutory interpretation, I have always believed
that rules that place special burdens on pregnant women
discriminate on the basis of sex, for the capacity to become
pregnant is the inherited and immutable characteristic that
"primarily differentiates the female from the male."
General
Electric Co. v.
Gilbert, 429 U. S. 125, 162 (1976)
(STEVENS, J., dissenting). I continue to believe that that view
should inform our construction of civil rights legislation.
That view was also the one affirmed by Congress in the Pregnancy
Discrimination Act, 92 Stat. 2076, which amended Title VII of the
Civil Rights Act of 1964, 42 U. S. C. § 2000e
et seq.29 The
Act categorically expressed Congress' view that
actionable under § 1 of the Ku Klux Act, now 42 U. S. C. § 1983.
If private parties jointly participated in the conduct, they, too,
would be liable under § 1983. See
Lugar v.
Edmondson Oil
Co., 457 U. S.
922 (1982);
Adickes v. S.
H. Kress &
Co., 398 U. S.
144 (1970). The class-based animus requirement determines
whether a private conspiracy to violate the federal right to
travel-a right protected against private interference-similarly
gives rise to a federal cause of action.
29 The Pregnancy Discrimination Act was passed in reaction to
the Court's decision in
Gilbert, which relied on
Geduldig to uphold a pregnancy exclusion in a private
employer's disability insurance plan, challenged under Title VII.
In enacting the Pregnancy Discrimination Act, Congress directly
repudiated the logic and the result of
Gilbert. See
Newport News, 462 U. S., at 678 (''When Congress amended
Title VII in 1978, it unambiguously expressed its disapproval of
both the holding and the reasoning of the Court in the
Gilbert decision").
331
"discrimination based on a woman's pregnancy is, on its face,
discrimination because of her sex."
Newport News
Shipbuilding &
Dry Dock Co. v.
EEOC, 462 U. S. 669, 684
(1983).
Geduldig had held that a pregnancy-based
classification did not constitute forbidden sex discrimination if
the classification related to benefits and did not have a
discriminatory effect. In the Pregnancy Discrimination Act,
Congress rejected
Geduldig's focus on benefits and overall
impact, instead insisting that discrimination on the basis of
pregnancy necessarily constitutes prohibited sex discrimination.
See H. R. Rep. No. 95-948, pp. 2-3 (1978). The statements of the
bill's proponents demonstrate their disapproval of the Court's
reluctance in
Gilbert and
Geduldig to recognize that
discrimination on the basis of pregnancy is
always
genderbased discrimination. See,
e. g., 123 Congo Rec. 10581
(1977) (remarks of Rep. Hawkins) ("[I]t seems only commonsense,
that since only women can become pregnant, discrimination against
pregnant people is necessarily discrimination against women ...
").30
Two Terms ago, in
Automobile Workers v.
Johnson
Controls, Inc., 499 U. S. 187 (1991), the
Court again faced the question whether a classification based on
childbearing capacity violated a statutory ban on discrimination.
That case, arising under Title VII, concerned Johnson Controls'
"fetal-protection policy," which excluded all women "capable of
bearing children" from jobs requiring exposure to lead. Johnson
Controls sought to justify the policy on the basis that maternal
exposure to lead created health risks for a fetus. The first
question the Court addressed was whether the policy was facially
discriminatory or, alternatively, facially neutral with merely a
discriminatory effect. The
30 The House and Senate Reports both state that the Act adopts
the position, held by the Justices who dissented in
Gilbert,
that discrimination on the basis of pregnancy is discrimination on
account of sex. H. R. Rep. No. 95-948, p. 2 (1978); S. Rep. No.
95-331, pp. 2-3 (1977); see
Newport News, 462 U. S., at
678-679.
332
Court concluded that the policy was facially discriminatory. The
policy was not neutral, the Court held, "because it does not apply
to the reproductive capacity of the company's male employees in the
same way as it applies to that of the females."
Id., at 199.
Johnson Controls, I had thought, signaled the Court's
recognition that classifications based on ability to become
pregnant are necessarily discriminatory.
VI
Respondents' right to engage in interstate travel is inseparable
from the right they seek to exercise. That right, unduly burdened
and frustrated by petitioners' conspiracy, is protected by the
Federal Constitution, as we recently reaffirmed in
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992).
Almost two decades ago, the Court squarely held that the right to
enter another State for the purpose of seeking abortion services
available there is protected by the Privileges and Immunities
Clause, U. S. Const., Art. IV, § 2.
Doe v.
Bolton,
410 U. S. 179,
200 (1973).31 A woman's right to engage in interstate travel for
this purpose is either entitled to special respect because she is
exercising a constitutional right, or because restrictive rules in
her home State may make travel to another State imperative. Federal
courts are uniquely situated to protect that right for the same
reason they are well suited to protect the privileges and
immunities of those who enter other States to ply their trade. See,
e. g., Blake v.
McClung, 172 U. S. 239, 248-256
(1898).
31 Although two Justices dissented from other portions of the
decision in
Doe v.
Bolton, see 410 U. S., at 221-223,
no Member of the Court expressed disagreement with this
proposition. Moreover, even if the view of the two Justices who
dissented in
Roe v.
Wade, 410 U. S. 113, 171, 221
(1973), were the law, a woman's right to enter another State to
obtain an abortion would deserve strong protection. For under the
position espoused by those dissenters, the diversity among the
States in their regulation of abortion procedures would magnify the
importance of unimpeded access to out-of-state facilities.
333
The District Court's conclusion that petitioners intended to
interfere with the right to engage in interstate travel is well
supported by the record. Interference with a woman's ability to
visit another State to obtain an abortion is essential to
petitioners' achievement of their ultimate goal-the complete
elimination of abortion services throughout the United States. No
lesser purpose can explain their multistate "rescue"
operations.
Even in a single locality, the effect of petitioners' blockade
on interstate travel is substantial. Between 20 and 30 percent of
the patients at a targeted clinic in Virginia were from out of
State and over half of the patients at one of the Maryland clinics
were interstate travelers. 726 F. Supp., at 1489. Making their
destination inaccessible to women who have engaged in interstate
travel for a single purpose is unquestionably a burden on that
travel. That burden was not only a foreseeable and natural
consequence of the blockades, but indeed was also one of the
intended consequences of petitioners' conspiracy.
Today the Court advances two separate reasons for rejecting the
District Court's conclusion that petitioners deliberately deprived
women seeking abortions of their right to interstate travel. First,
relying on an excerpt from our opinion in
United States v.
Guest, 383 U.
S. 745, 760 (1966), the Court assumes that" 'the predominant
purpose' " or "the very purpose" of the conspiracy must be to
impede interstate travel.
Ante, at 275, 276. Second, the
Court assumes that even an intentional restriction on out-of-state
travel is permissible if it imposes an equal burden on intrastate
travel. The first reason reflects a mistaken understanding of
Guest and
Griffin, and the second is unsupported by
precedent or reason.
In the
Guest case, the Court squarely held that the
Federal Constitution protects the right to engage in interstate
travel from private interference. Not a word in that opinion
suggests that the constitutional protection is limited to
impedi-
334
ments that discriminate against nonresidents. Instead, the Court
broadly referred to the federal commerce power that "authorizes
Congress to legislate for the protection of individuals from
violations of civil rights that impinge on their free movement in
interstate commerce." 383 U. S., at 759. It then held that the
right of interstate travel was one of the federal rights protected
from private interference by the criminal statute that had been
enacted as § 6 of the Enforcement Act of 1870, 16 Stat. 141, later
codified at 18 U. S. C. § 241. That statute had previously been
construed to contain a "stringent scienter requirement" to save it
from condemnation as a criminal statute failing to provide adequate
notice of the proscribed conduct. 383 U. S., at 785 (Brennan, J.,
concurring in part and dissenting in part); see also id., at
753-754. The
Guest opinion then explained why this history
would limit the coverage of 18 U. S. C. § 241:
"This does not mean, of course, that every criminal conspiracy
affecting an individual's right of free interstate passage is
within the sanction of 18 U. S. C. § 241. A specific intent to
interfere with the federal right must be proved, and at a trial the
defendants are entitled to a jury instruction phrased in those
terms. Screws v. United States, 325 U. S. 91, 106-107
[1945]. Thus, for example, a conspiracy to rob an interstate
traveler would not, of itself, violate § 241. But if the
predominant purpose of the conspiracy is to impede or prevent the
exercise of the right of interstate travel, or to oppress a person
because of his exercise of that right, then, whether or not
motivated by racial discrimination, the conspiracy becomes a proper
object of the federal law under which the indictment in this case
was brought." 383 U. S., at 760.
Today the Court assumes that the same sort of scienter
requirement should apply to § 1985(3) because 18 U. S. C. § 241 is
its "criminal counterpart."
Ante, at 275.
335
The Court is mistaken. The criminal sanctions that were
originally included in § 2 of the Ku Klux Act were held
unconstitutional over a century ago.
United States v.
Harris, 106 U.
S. 629 (1883);
Baldwin v.
Franks, 120 U. S. 678 (1887). The
statute now codified at 18 U. S. C. § 241 was enacted in 1870, a
year earlier than the Ku Klux Act. The texts of the two statutes
are materially different. Even if that were not so, it would be
inappropriate to assume that a strict scienter requirement in a
criminal statute should be glibly incorporated in a civil
statute.32 But what is most significant is the dramatic difference
between the language of 18 U. S. C. § 241, which includes an
unequivocal "intent" requirement and the language of § 1985(3),
which broadly describes a purpose to deprive another of a protected
privilege "either directly or indirectly." An indirect interference
with the right to travel may violate § 1985(3) even if it would not
violate § 241.33
32 See,
e. g., United States v.
United States Gypsum
Co., 438 U. S.
422, 436, and n. 13 (1978) (distinguishing intent requirement
for civil and criminal violations of the Sherman Act).
33 The Court's confusion of the intent element of § 1985(3) with
the intent required in criminal civil rights statutes is
particularly surprising in that
Griffin v.
Breckenridge, 403 U. S. 88 (1971),
anticipated this mistake and explicitly warned against it. Indeed,
Griffin expressly rejected the idea that § 1985(3) contained
a specific intent requirement. In finding specific intent necessary
for a violation of 18 U. S. C. § 241,
United States v.
Guest, 383 U.
S. 745 (1966), relied on
Screws v.
United States,
325 U. S. 91,
106-107 (1945), which also construed a criminal statute, 18 U. S.
C. § 241, to require specific intent. See
Guest, 383 U. S.,
at 760.
Griffin unmistakably distinguished that kind of
specific intent requirement from the mental element required for a
claim under § 1985(3). In
Griffin the Court stated that the
"motivation requirement" of § 1985(3) "must not be confused with
the test of 'specific intent to deprive a person of a federal right
made definite by decision or other rule of law' articulated by the
plurality opinion in
Screws v.
United States .... "
403 U. S., at 102, n. 10. The language could hardly be more clear.
Griffin took care to differentiate between "invidiously
discriminatory animus," which § 1985(3) did require, and specific
intent to violate a right, which § 1985(3) did not. Further, while
distinguishing
Screws, Griffin cited
Monroe v.
Pape, 365 U.
S. 167 (1961), which declined
336
The Court interpreted the right to interstate travel more
generously in Griffin. It wrote:
"Under these allegations it is open to the petitioners to prove
at trial that they had been engaging in interstate travel or
intended to do so, that their federal right to travel interstate
was one of the rights meant to be dis-
to find a specific intent requirement for actions under 42 U. S.
C. § 1983. See
Monroe, 365 U. S., at 187; see also
id., at 206-207 (Frankfurter, J., concurring in part and
dissenting in part). Section 1983, like § 1985(3), was enacted as
part of the Ku Klux Act of 1871 and provides for civil enforcement
of federal rights. The pattern is clear: The criminal statutes, 18
U. S. C. § 241 and 18 U. S. C. § 242, require specific intent to
violate a right; the civil statutes, 42 U. S. C. § 1983 and 42 U.
S. C. § 1985(3), do not.
The Court's repeated invocation of the word "aim" simply does
not support its attempt to manufacture a specific intent
requirement out of whole cloth. As the Court observes,
Carpenters v.
Scott, 463 U. S. 825 (1983),
uses the expression "aimed at,"
id., at 833.
Carpenters does not relate this phrase to a specific intent
requirement, nor does it in any other way suggest that an action
under § 1985(3) requires proof of specific intent.
Griffin
also uses the phrase "aim at"; there, the Court states: "The
conspiracy, in other words, must
aim at a deprivation of the
equal enjoyment of rights secured by the law to all." 403 U. S., at
102 (emphasis added). Unlike
Carpenters, Griffin does
discuss whether § 1985(3) requires specific intent. In the footnote
appended to the very sentence that contains the phrase "aim at,"
the Court explains: "The motivation aspect of § 1985(3) focuses not
on scienter in relation to deprivation of rights but on invidiously
discriminatory animus." 403 U. S., at 102, n. 10. Today, in
insisting that § 1985(3) requires specific intent to violate a
right, the Court contradicts
Griffin and finds that one of
the mental elements of § 1985(3)
does relate to "scienter in
relation to deprivation of rights." In seeking to justify this
departure from precedent, the Court describes the passage in
Griffin that includes this Court's only discussion of
specific intent in relation to § 1985(3) as "supremely" irrelevant,
ante, at 276, n. 6. I gather this means that only the
Supreme Court could find it irrelevant; lower courts have been more
reluctant to ignore
Griffin's plain language, see
Fisher v.
Shamburg, 624 F.2d
156, 158, n. 2 (CAW 1980);
Cameron v.
Brock,
473 F.2d
608, 610
(CA6 1973);
Azar v.
Conley,
456 F.2d
1382,
1385-1386 (CA6 1972);
Weiss v.
Patrick, 453 F. Supp. 717, 723 (R. 1.), aff'd,
588 F.2d
818 (CA1 1978), cert. denied, 442 U. S. 929 (1979).
337
criminatorily impaired by the conspiracy, that the conspirators
intended to drive out-of-state civil rights workers from the State,
or that they meant to deter the petitioners from associating with
such persons. This and other evidence could make it clear that the
petitioners had suffered from conduct that Congress may reach under
its power to protect the right of interstate travel."
Griffin, 403 U. S., at 106.
In that paragraph the Court mentions that the plaintiffs'
federal right to travel may have been "discriminatorily" impaired.
The use of that word was appropriate because of the Court's earlier
discussion of the importance of classbased discriminatory animus in
interpreting the statute, but was entirely unnecessary in order to
uphold the constitutionality of the statute as applied to conduct
that "Congress may reach under its power to protect the right of
interstate travel."
Ibid. Moreover, "in the light of the
evolution of decisional law," id., at 95-96, in recent years, today
no one could possibly question the power of Congress to prohibit
private blockades of streets and highways used by interstate
travelers, even if the conspirators indiscriminately interdicted
both local and out-of-state travelers.
The implausibility of the Court's readings of
Griffin and
Guest is matched by its conclusion that a burden on
interstate travel is permissible as long as an equal burden is
imposed on local travelers. The Court has long recognized that a
burden on interstate commerce may be invalid even if the same
burden is imposed on local commerce. See
Pike v.
Bruce
Church, Inc., 397
U. S. 137 (1970);
Dean Milk Co. v.
Madison,
340 U. S. 349,
354, n. 4 (1951);
Southern Pacific Co. v.
Arizona ex rel.
Sullivan, 325 U.
S. 761 (1945). The fact that an impermissible burden is most
readily identified when it discriminates against nonresidents does
not justify immunizing conduct that evenhandedly disrupts both
local and interstate travel. The defendants in
Griffin, for
example,
338
could not have refuted the claim that they interfered with the
right to travel by demonstrating that they indiscriminately
attacked local civil rights activists as well as nonresidents.
In this case petitioners have deliberately blockaded access to
the destinations sought by a class of women including both local
and interstate travelers. Even though petitioners may not have
known
which of the travelers had crossed the state line,
petitioners unquestionably knew that many of them had. The
conclusion of the District Court that petitioners "engaged in this
conspiracy for the purpose, either directly or indirectly, of
depriving women seeking abortions and related medical counselling
services, of the right to travel," 726 F. Supp., at 1493, is
abundantly supported by the record.
Discrimination is a necessary element of the class-based animus
requirement, not of the abridgment of a woman's right to engage in
interstate travel. Perhaps nowhere else in its opinion does the
Court reject such obvious assumptions of the authors of § 1985(3).
The Reconstruction Congress would have been startled, I think, to
learn that § 1985(3) protected freed slaves and their supporters
from Klan violence not covered by the Thirteenth Amendment only if
the Klan members spared
local African-Americans and
abolitionists their wrath. And it would have been shocked to learn
that its law offered relief from a Klan lynching of an out-of-state
abolitionist only if the plaintiff could show that the Klan
specifically intended to prevent his travel between the States. Yet
these are the impossible requirements the Court imposes on a §
1985(3) plaintiff who has shown that her right to travel has been
deliberately and significantly infringed. It is difficult to know
whether the Court is waiting until only a few States have abortion
clinics before it finds that petitioners' behavior violates the
right to travel, or if it believes that petitioners could never
violate that right as long as they oppose the abortion a woman
seeks to obtain as well as the travel necessary to obtain it.
339
VII
Respondents have unquestionably established a claim under the
second clause of § 1985(3), the state hindrance provision.34 The
record amply demonstrates petitioners' successful efforts to
overpower local law enforcement officers. During the "rescue"
operations, the duly constituted authorities are rendered
ineffective, and mob violence prevails.35 A conspiracy that seeks
by force of numbers to prevent local officials from protecting the
victims' constitutional rights presents exactly the kind of
pernicious combination that the second clause of § 1985(3) was
designed to counteract. As we recognized in
Griffin, the
second clause of § 1985(3) explicitly concerns such interference
with state officials and for that reason does not duplicate the
coverage of the first clause.
Griffin, 403 U. S., at 99.
Petitioners' conspiracy hinders the lawful authorities from
protecting women's constitutionally protected right to choose
whether to end their pregnancies. Though this may be a right that
is protected only against state infringement, it is clear that by
preventing government officials from safeguarding the exercise of
that right, petitioners' conspiracy effects a deprivation
redressable under § 1985(3). See
Carpenters v.
Scott,
463 U. S., at 830;
id., at 840, n. 2 (BLACKMUN, J.,
dissenting); see also
Great American Fed. Sav. &
Loan
34 "If two or more persons in any State or Territory conspire or
go in disguise on the highway or on the premises of another ...
for the purpose of preventing or hindering the constituted
authorities of any State or Territory from giving or securing to
all persons within such State or Territory the equal protection of
the laws; ... in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or deprived
of having and exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have an action
for the recovery of damages occasioned by such injury or
deprivation, against anyone or more of the conspirators." 42 U. S.
C. § 1985(3) (emphasis added).
35 See 726 F. Supp., at 1489-1490, and n. 4.
340
Assn. v.
Novotny, 442 U. S., at 384 (STEVENS, J.,
concurring). A conspiracy that seeks to interfere with law
enforcement officers' performance of their duties entails
sufficient involvement with the State to implicate the federally
protected right to choose an abortion and to give rise to a cause
of action under § 1985(3).
We have not previously considered whether class-based animus is
an element of a claim under the second clause of § 1985(3). We
have, however, confronted the question whether the class-based
animus requirement developed in
Griffin should extend to
another part of the Ku Klux Act, the portion now codified at §
1985(2). That provision, which generally proscribes conspiracies to
interfere with federal proceedings, was enacted as part of the same
paragraph of the Ku Klux Act that also contained what is now §
1985(3).36 For that reason, in
Kush v.
Rutledge,
460 U. S. 719
(1983), the defendants contended that the plaintiffs had the burden
of proving that the alleged conspiracy to intimidate witnesses had
been motivated by the kind of class-based animus described in
Griffin. The Court of Appeals rejected this contention. Its
reasoning, which we briefly summarized in
Kush, is highly
relevant here: "Noting the Federal Government's unquestioned
constitutional authority to protect the processes of its own
courts, and the absence of any need to limit the first part of §
1985(2) to avoid creating a general federal tort law, the Court of
Appeals declined to impose the limitation set forth in
Griffin v.
Breckenridge." 460 U. S., at 723.
Kush suggests that
Griffin's strictly construed
class-based animus requirement, developed for the first clause of §
1985(3), should not limit the very different second clause. We
explained:
36 The full text of § 2 of the 1871 Civil Rights Act, 17 Stat.
13, is quoted in the appendix to the Court's opinion in
Kush
v.
Rutledge, 460 U. S. 719, 727-729
(1983).
341
"Although Griffin itself arose under the first clause of
§ 1985(3), petitioners argue that its reasoning should be applied
to the remaining portions of § 1985 as well. We cannot accept that
argument for three reasons. First, the scope of the Griffin
opinion is carefully confined to 'the portion of § 1985(3) now
before us,' [Griffin, 403 U. S.,] at 99; see also id., at
102, n. 9. There is no suggestion in the opinion that its reasoning
applies to any other portion of § 1985. Second, the analysis in the
Griffin opinion relied heavily on the fact that the sponsors
of the 1871 bill added the 'equal protection' language in response
to objections that the 'enormous sweep of the original language'
vastly extended federal authority and displaced state control over
private conduct. Id., at 99-100. That legislative background
does not apply to the portions of the statute that prohibit
interference with federal officers, federal courts, or federal
elections. Third, and of greatest importance, the statutory
language that provides the textual basis for the 'class-based,
invidiously discriminatory animus' requirement simply does not
appear in the portion of the statute that applies to this case."
460 U. S., at 726.
It is true, of course, that the reference to "equal protection"
appears in both the first and the second clauses of § 1985(3), but
the potentially unlimited scope of the former is avoided by the
language in the latter that confines its reach to conspiracies
directed at the "constituted authorities of any State or
Territory." The deliberate decision in
Griffin that
"carefully confined" its holding to "the portion of § 1985(3) now
before us," coupled with the inapplicability of
Griffin's
rationale to the second clause, makes it entirely appropriate to
give that clause a different and more natural construction. Limited
to conspiracies that are sufficiently massive to supplant local law
enforcement authorities, the second clause requires no further
restriction to honor the congressional purpose of creating an
effective civil rights remedy without
342
federalizing all tort law. The justification for a narrow
reading of
Griffin's judicially crafted requirement of
class-based animus simply does not apply to the state hindrance
clause. An action under that clause entails both a violation of the
victims' constitutional rights and state involvement. This
situation is so far removed from the question whether facially
neutral legislation constitutes a violation of the Equal Protection
Clause that the strict intent standards developed in that area can
have no application.
In the context of a conspiracy that hinders state officials and
violates respondents' constitutional rights, class-based animus can
be inferred if the conspirators' conduct burdens an activity
engaged in predominantly by members of the class. Indeed, it would
be faithful both to
Griffin and to the text of the state
hindrance clause to hold that the clause proscribes conspiracies to
prevent local law enforcement authorities from protecting
activities that are performed exclusively by members of a protected
class, even if the conspirators' animus were directed at the
activity rather than at the class members. Thus, even if yarmulkes,
rather than Jews, were the object of the conspirators' animus, the
statute would prohibit a conspiracy to hinder the constituted
authorities from protecting access to a synagogue or other place of
worship for persons wearing yarmulkes. Like other civil rights
legislation, this statute should be broadly construed to provide
federal protection against the kind of disorder and anarchy that
the States are unable to control effectively.
With class-based animus understood as I have suggested, the
conduct covered by the state hindrance clause would be as follows:
a large-scale conspiracy that violates the victims' constitutional
rights by overwhelming the local authorities and that, by its
nature, victimizes predominantly members of a particular class. I
doubt whether it would be possible to describe conduct closer to
the core of § 1985(3)'s coverage. This account would perfectly
describe the conduct of the Ku Klux Klan, the group whose
activities prompted the enact-
343
ment of the statute. This description also applies to
petitioners, who have conspired to deprive women of their
constitutional right to choose an abortion by overwhelming the
local police and by blockading clinics with the intended effect of
preventing women from exercising a right only they possess. The
state hindrance clause thus provides an independent ground for
affirmance.37
VIII
In sum, it is irrelevant whether the Court is correct in its
assumption that "opposition to abortion" does not necessarily
evidence an intent to disfavor women. Many opponents of
37 As part of its crabbed interpretation of the statute, the
Court asserts that the scope of the conspiracy is irrelevant in
determining whether its activities can be reached by § 1985(3). See
ante, at 283-284. This suggestion is contradicted by our
prior cases, which have recognized that the magnitude of the
conspiratorial undertaking may indeed be relevant in ascertaining
whether conduct is actionable under § 1985(3). See
Griffin,
403 U. S., at 98;
Collins v.
Hardyman, 341 U. S. 651, 661-662
(1951).
More generally, the Court's comments evidence a renunciation of
the effort to construe this civil rights statute in accordance with
its intended purpose. In
Griffin, Novotny, and
Carpenters, our construction of the statute was guided by
our understanding of Congress' goals in enacting the Ku Klux Act.
Today, the Court departs from this practice and construes § 1985(3)
without reference to the "purpose, history, and common
understanding of this Civil War Era statute,"
Novotny, 442
U. S., at 381 (Powell, J., concurring). This represents a sad and
unjustified abandonment of a valuable interpretive tradition.
Of course, the Court does not completely reject resort to
statutory purpose: The Court does rely on legislative intent in
limiting the reach of the statute. The requirement of class-based
animus, for example, owes as much to
Griffin's analysis of
congressional purpose as to the text of § 1985(3). Two Terms ago I
noted: "In recent years the Court has vacillated between a purely
literal approach to the task of statutory interpretation and an
approach that seeks guidance from historical context, legislative
history, and prior cases identifying the purpose that motivated the
legislation."
West Virginia Univ. Hospitals, Inc. v.
Casey, 499 U.
S. 83, 112 (1991) (dissenting opinion). Today, the Court
selectively employs both approaches to give the statute its
narrowest possible construction.
344
abortion respect both the law and the rights of others to make
their own decisions on this important matter. Petitioners, however,
are not mere opponents of abortion; they are defiant lawbreakers
who have engaged in massive concerted conduct that is designed to
prevent all women from making up their own minds about not only the
issue of abortion in general, but also whether they should (or
will) exercise a right that all women-and only women-possess.
Indeed, the error that infects the Court's entire opinion is the
unstated and mistaken assumption that this is a case about
opposition to abortion. It is not. It is a case about the exercise
of federal power to control an interstate conspiracy to commit
illegal acts. I have no doubt that most opponents of abortion, like
most members of the citizenry at large, understand why the
existence of federal jurisdiction is appropriate in a case of this
kind.
The Court concludes its analysis of § 1985(3) by suggesting that
a contrary interpretation would have condemned the massive
"sit-ins" that were conducted to promote desegregation in the
1960's-a "wildly improbable result." See
ante, at 282. This
suggestion is profoundly misguided. It assumes that we must totally
reject the class-based animus requirement to affirm the District
Court, when, in fact, we need only construe that requirement to
satisfy its purpose. Moreover, the demonstrations in the 1960's
were motivated by a desire to extend the equal protection of the
laws to all classes-not to impose burdens on any disadvantaged
class. Those who engaged in the nonviolent "sit-ins" to which the
Court refers were challenging "a political and economic system that
had denied them the basic rights of dignity and equality that this
country had fought a Civil War to secure."
NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 918
(1982). The suggestion that there is an analogy between their
struggle to achieve equality and these petitioners' concerted
efforts to deny women equal access to a constitutionally protected
privilege may have rhetorical appeal, but it is
345
insupportable on the record before us, and does not justify the
majority's parsimonious construction of an important federal
statute.38
I respectfully dissent.
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins,
dissenting.
Petitioners act in organized groups to overwhelm local police
forces and physically blockade the entrances to respondents'
clinics with the purpose of preventing women from exercising their
legal rights. Title 42 U. S. C. § 1985(3) provides a federal remedy
against private conspiracies aimed at depriving any person or class
of persons of the "equal protection of the laws," or of "equal
privileges and immunities under the laws." In my view, respondents'
injuries and petitioners' activities fall squarely within the ambit
of this statute.
I
The Reconstruction Congress enacted the Civil Rights Act of
1871, also known as the Ku Klux Act (Act), 17 Stat. 13, to combat
the chaos that paralyzed the post-War South. Wil
son v.
Garcia, 471 U.
S. 261, 276-279 (1985);
Briscoe v.
LaHue,
460 U. S. 325,
336-339 (1983). Section 2 of the Act extended the protection of
federal courts to those who effectively were prevented from
exercising their civil rights by the threat of mob violence.
Although the immediate purpose of § 1985(3) was to combat animosity
against blacks and
38JU8TICE KENNEDY'S reminder that the Court's denial of any
relief to individual respondents does not prevent their States from
calling on the United States, through its Attorney General, for
help,
ante, at 287-288, is both puzzling and ironic, given
the role this administration has played in this and related cases
in support of Operation Rescue. See Brief for United States as
Amicus Curiae; Women's Health Care Services v.
Operation
Rescue-National, 773 F. Supp., at 269-270; cf. Memorandum for
United States as
Amicus Curiae in
Griffin v.
Breckenridge, O. T. 1970, No. 144.
346
their supporters,
Carpenters v.
Scott, 463 U. S. 825, 836
(1983), the language of the Act, like that of many Reconstruction
statutes, is more expansive than the historical circumstances that
inspired it. The civil-remedy component of § 2, codified at 42 U.
S. C. § 1985(3), speaks in general terms, and provides a federal
cause of action to any person injured or deprived of a legal right
by
"two or more persons in any State or Territory [who] conspire or
go in disguise on the highway or on the premises of another,
[first] for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws;
or [second] for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or
securing to all persons within such State or Territory the equal
protection of the laws .... "
The Court's approach to Reconstruction Era civil rights statutes
has been to "accord [them] a sweep as broad as [their] language."
United States v.
Price, 383 U. S. 787, 801
(1966); accord,
Griffin v.
Breckenridge, 403 U. S. 88, 97
(1971); Jones v.
Alfred H. Mayer Co., 392 U. S. 409, 437
(1968). Today, the Court does just the opposite, precluding
application of the statute to a situation that its language clearly
covers. There is no dispute that petitioners have "conspired"
through their concerted and unlawful activities. The record shows
that petitioners' "purpose" is "directly" to "depriv[e]" women of
their ability to obtain the clinics' services, see
National
Organization for Women v.
Operation Rescue, 726 F. Supp.
1483, 1488 (ED Va. 1989), as well as "indirectly" to infringe on
their constitutional privilege to travel interstate in seeking
those services, id., at 1489. The record also shows that
petitioners accomplish their goals by purposefully "preventing or
hindering" local law enforcement authorities from maintaining open
access to the clinics.
347
See
ibid., and n. 4. In sum, petitioners' activities fit
precisely within the language of both clauses of § 1985(3).
Yet the Court holds otherwise, and it does so primarily on the
basis of an "element" of the § 1985(3) cause of action that does
not appear on the face of the statute. Adhering adamantly to our
choice of words in
Griffin v.
Breckenridge, supra,
the Court holds that petitioners did not exhibit a "class-based,
invidiously discriminatory animus" against the clinics or the women
they serve. I would not parse
Griffin so finely as to focus
on that phrase to the exclusion of our reasons for adopting it as
an element of a § 1985(3) civil action.
A
As the Court explained in
Griffin, § 1985(3)'s
"class-based animus" requirement is derived from the statute's
legislative history. That case recounted that § 2 of the original
Civil Rights bill had proposed criminal punishment for private
individuals who conspired "with intent 'to do any act in violation
of the rights, privileges, or immunities of another person.''' 403
U. S., at 99-100 (quoting Congo Globe, 42d Cong., 1st Sess., App.
68 (1871)). The bill was amended to placate those who believed the
proposed language was too sweeping. 403 U. S., at 100. Accordingly,
the amendment narrowed the criminal provision to reach only
conspiracies that deprived "any person or class of persons of the
equal protection of the laws, or of
equal privileges
and immunities under the laws ... ." Congo Globe, 42d Cong., 1st
Sess., at 477 (emphasis supplied). The amendment also added a civil
remedy for those harmed by such conspiracies, which is now codified
at § 1985(3). Looking to the "congressional purpose" the statute's
legislative history exhibited, the Court concluded that "there must
be some racial, or perhaps otherwise classbased, invidiously
discriminatory animus behind the conspirators' action. The
conspiracy, in other words, must aim at a deprivation of the equal
enjoyment of rights secured by the law to all."
Griffin, 403
U. S., at 102 (footnotes omitted).
348
Griffin's narrowing construction of § 1985(3) was a
rational effort to honor the language of the statute without
providing a federal cause of action for "all tortious,
conspiratorial interferences with the rights of others."
Id., at 101. The "classbased animus" requirement avoids the
constitutional difficulties of federalizing every crime or tort
committed by two or more persons, while giving effect to the
enacting Congress' condemnation of private action against
individuals on account of their group affiliation. Perhaps the
clearest expression of this intent is found in the statement of
Senator Edmunds, who managed the bill on the floor of the Senate,
when he explained to his colleagues that Congress did not
"undertake in this bill to interfere with what might be called a
private conspiracy growing out of a neighborhood feud ... [but, if]
it should appear that this conspiracy was formed against this man
because he was a Democrat, if you please, or because he was a
Catholic, or because he was a Methodist, or because he was a
Vermonter, ... then this section could reach it." Congo Globe, 42d
Cong., 1st Sess., at 567. Indeed, Senator Edmunds' comment on the
scope of § 2 of the Act is illustrative of a more general concern
in the 42d Congress for extending federal protection to diverse
classes nationwide. See,
e. g., id., at App. 153-154 (Rep.
Garfield) (legislation protects "particular classes of citizens"
and "certain classes of individuals"); id., at App. 267 (Rep.
Barry) ("white or black, native or adopted citizens"); id., at App.
376 (Rep. Lowe) ("all classes in all States; to persons of every
complexion and of whatever politics"); id., at App. 190 (Rep.
Buckley) ("yes, even women").
Griffin's requirement of class-based animus is a
reasonable shorthand description of the type of actions the 42d
Congress was attempting to address. Beginning with
Carpenters v.
Scott, 463 U. S. 825 (1983),
however, that shorthand description began to take on a life of its
own. In that case, a majority of the Court held that conspiracies
motivated by bias toward others on account of their economic views
or activities
349
did not constitute class-based discrimination within the reach
of the statute.
Id., at 837-839. I agreed with the dissent,
however, that "[i]nstead of contemplating a list of actionable
class traits, ... Congress had in mind a functional definition of
the scope of [§ 1985(3)]," and intended to "provide a federal
remedy for all classes that seek to exercise their legal rights in
unprotected circumstances similar to those of the victims of Klan
violence."
Id., at 851 (opinion of BLACKMUN, J.) (emphasis
deleted). Accordingly, I would have found that § 1985(3) provided a
remedy to nonunion employees injured by mob violence in a
"self-professed union town" whose residents resented nonunion
activities.
Id., at 854.
For the same reason, I would find in this case that the statute
covers petitioners' conspiracy against the clinics and their
clients. Like the Klan conspiracies Congress tried to reach in
enacting § 1985(3), "[p]etitioners intended to hinder a particular
group in the exercise of their legal rights because of their
membership in a specific class."
Ibid. The controversy
associated with the exercise of those rights, although legitimate,
makes the clinics and the women they serve especially vulnerable to
the threat of mob violence. The women seeking the clinics' services
are not simply "the group of victims of the tortious action," id.,
at 850; as was the case in
Carpenters, petitioners' intended
targets are clearly identifiable-by virtue of their affiliation and
activities-before any tortious action occurs.
B
Even if I had not dissented in
Carpenters, I would still
find in today's case that § 1985(3) reaches conspiracies targeted
at a gender-based class and that petitioners' actions fall within
that category. I agree with JUSTICE STEVENS that "[t]he text of the
statute provides no basis for excluding from its coverage any
cognizable class of persons who are entitled to the equal
protection of the laws."
Ante, at 319 (dissenting
350
opinion). At the very least, the classes protected by § 1985(3)
must encompass those classifications that we have determined merit
a heightened scrutiny of state action under the Equal Protection
Clause of the Fourteenth Amendment. Classifications based on gender
fall within that narrow category of protected classes.
E. g.,
Mississippi Univ. for Women v.
Hogan, 458 U. S. 718, 723-726
(1982);
Craig v.
Boren, 429 U. S. 190, 197
(1976). Not surprisingly, the seven Federal Courts of Appeals to
have addressed the question have all reached the conclusion that
the class of "women" falls within the protection of the statute.
Stathos v.
Bowden, 728 F.2d
15, 20 (CA1 1984);
New York State National Organization for
Women v.
Terry, 886 F.2d
1339,1359 (CA2 1989), cert. denied, 495 U. S. 947 (1990);
Novotny v.
Great American Fed. Sav. &
Loan
Assn., 584 F.2d
1235, 1244 (CA3 1978) (en bane), vacated on other grounds,
442 U. S. 366
(1979); National Organization for Women v.
Operation
Rescue, 914 F.2d
582, 585 (CA4 1990);
Volk v.
Coler, 845 F.2d
1422,1434 (CA7 1988);
Conroy v.
Conroy, 575 F.2d
175, 177 (CA8 1978);
Life Ins. Co. of North America v.
Reichardt, 591 F.2d
499,505 (CA9 1979). As JUSTICE WHITE has observed:
"It is clear that sex discrimination may be sufficiently
invidious to come within the prohibition of § 1985(3)."
Great
American Fed. Sav. &
Loan Assn. v.
Novotny,
442 U. S. 366,
389, n. 6 (1979) (dissenting opinion).
If women are a protected class under § 1985(3), and I think they
are, then the statute must reach conspiracies whose motivation is
directly related to characteristics unique to that class. The
victims of petitioners' tortious actions are linked by their
ability to become pregnant and by their ability to terminate their
pregnancies, characteristics unique to the class of women.
Petitioners' activities are directly related to those class
characteristics and therefore, I believe, are appropriately
described as class based within the meaning of our holding in
Griffin.
351
Petitioners assert that, even if their activities are class
based, they are not motivated by any
discriminatory animus
but only by their profound opposition to the practice of abortion.
I do not doubt the sincerity of that opposition. But in assessing
the motivation behind petitioners' actions, the sincerity of their
opposition cannot surmount the manner in which they have chosen to
express it. Petitioners are free to express their views in a
variety of ways, including lobbying, counseling, and disseminating
information. Instead, they have chosen to target women seeking
abortions and to prevent them from exercising their equal rights
under law. Even without relying on the federally protected right to
abortion, petitioners' activities infringe on a number of
stateprotected interests, including the state laws that make
abortion legal, Va. Code Ann. §§ 18.2-72, 18.2-73 (1988), and the
state laws that protect against force, intimidation, and violence,
e. g., Va. Code Ann. § 18.2-119 (Supp. 1992) (trespassing),
§ 18.2-120 (1988) (instigating trespass to prevent the rendering of
services to persons lawfully on the premises), § 18.2-404
(obstructing free passage of others), § 18.2-499 (conspiring to
injure another in his business or profession). It is undeniably
petitioners' purpose to target a protected class, on account of
their class characteristics, and to prevent them from the equal
enjoyment of these personal and property rights under law. The
element of class-based discrimination that
Griffin read into
§ 1985(3) should require no further showing.
I cannot agree with the Court that the use of unlawful means to
achieve one's goal "is not relevant to [the] discussion of animus."
Ante, at 274. To the contrary, the deliberate decision to
isolate members of a vulnerable group and physically prevent them
from conducting legitimate activities cannot be irrelevant in
assessing motivation. Cf.
Maher v.
Roe, 432 U. S. 464, 475 (1977)
(noting the "basic difference," in constitutional equal protection
analysis, between "direct ... interference with a protected
activity" and "encouragement
352
of an alternative activity"). The clinics at issue are lawful
operations; the women who seek their services do so lawfully. In my
opinion, petitioners' unlawful conspiracy to prevent the clinics
from serving those women, who are targeted by petitioners by virtue
of their class characteristics, is a groupbased, private
deprivation of the "equal protection of the laws" within the reach
of § 1985(3).
The Court finds an absence of discriminatory animus by reference
to our decisions construing the scope of the Equal Protection
Clause, and reinforces its conclusion by recourse to the dictionary
definition of the word "invidious." See
ante, at 271-274.
The first step would be fitting if respondents were challenging
state action; they do not. The second would be proper if the word
"invidious" appeared in the statute we are construing; it does not.
As noted above,
Griffin's requirement of "class-based,
invidiously discriminatory animus" was a shorthand description of
the congressional purpose behind the legislation that became §
1985(3). Microscopic examination of the language we chose in
Griffin should not now substitute for giving effect to
Congress' intent in enacting the relevant legislative language, i.
e., that "any violation of the right, the
animus and
effect of which is to strike down the citizen, to the end that he
[or she] may not enjoy equality of rights as contrasted with ...
other citizens' rights, shall be within the scope of the remedies
of this section." Congo Globe, 42d Cong., 1st Sess., at 478 (Rep.
Shellabarger).
Because § 1985(3) is a statute that was designed to address
deprivations caused by
private actors, the Court's
invocation of our cases construing the reach of the Equal
Protection Clause of the Fourteenth Amendment is misplaced. The
Court relies on
Geduldig v.
Aiello, 417 U. S. 484 (1974), in
which we maintained that, for purposes of the Fourteenth Amendment,
"not ... every legislative classification concerning pregnancy is a
sex-based classification."
Id., at 496, n. 20. But that case
construed a constitutional provision
353
governing state action, which is far different than determining
the scope of a statute aimed at rectifying harms inflicted by
private actors. In fact, in stark contrast to our constitutional
holding in
Geduldig, Congress has declared that, for
purposes of interpreting a more recent antidiscrimination statute,
a classification based on pregnancy is considered a classification
"on the basis of sex." See Pregnancy Discrimination Act, 92 Stat.
2076, 42 U. S. C. § 2000e(k);
Newport News Shipbuilding
&
Dry Dock Co. v.
EEOC, 462 U. S. 669, 678
(1983). Similarly, although we have determined that a successful
constitutional challenge to a regulation that disproportionately
affects women must show that the legislature "selected or
reaffirmed a particular course of action at least in part 'because
of,' not merely 'in spite of,' its adverse effects upon an
identifiable group,"
Personnel Administrator of Mass. v.
Feeney, 442 U.
S. 256, 279 (1979), Congress recently has made clear its
position that showing subjective intent to discriminate is not
always necessary to prove statutory discrimination, see Civil
Rights Act of 1991, § 105(a), 105 Stat. 1074.
In today's case, I see no reason to hold a § 1985(3) plaintiff
to the constitutional standard of invidious discrimination that we
have employed in our Fourteenth Amendment jurisprudence. To be
sure, the language of that Amendment's Equal Protection Clause and
§ 1985(3) are similar, and "[a] century of Fourteenth Amendment
adjudication has ... made it understandably difficult to conceive
of what might constitute a deprivation of the equal protection of
the laws by private persons."
Griffin, 403 U. S., at 97. The
Court resolves that difficulty by construing the two provisions in
tandem, although there surely is no requirement that we do so. Cf.
Romero v.
International Terminal Operating Co.,
358 U. S. 354,
378-379 (1959) (explaining that statutory grant of "arising under"
jurisdiction need not mirror the reach of Art. III "arising under"
jurisdiction).
354
I would focus not on the similarities of the two provisions, but
on their differences. The Equal Protection Clause guarantees that
no State shall
"deny to any person within its jurisdiction
the equal protection of the laws." U. S. Const., Arndt. 14, § 1
(emphasis added). In my view, § 1985(3) does not simply repeat that
guarantee, but provides a complement to it: No private actor may
conspire with the purpose of
"depriving ... any person or
class of persons of the equal protection of the laws." (Emphasis
added.) Unlike "deny," which connotes a withholding, the word
"deprive" indicates an intent to prevent private actors from taking
away what the State has seen fit to bestow.
The distinction in choice of words is significant in light of
the interrelated objectives of the two provisions. The Fourteenth
Amendment protects against state action, but it "erects no shield
against merely private conduct, however discriminatory or
wrongful."
Shelley v.
Kraemer, 334 U. S. 1, 13 (1948).
Section 1985(3), by contrast, was "meant to reach private action."
Griffin, supra, at 101. Given that difference in focus, I
would not interpret "discriminatory animus" under the statute to
establish the same high threshold that must be met before this
Court will find that a State has engaged in invidious
discrimination in violation of the Constitution. As the 42d
Congress well appreciated, private actors acting in groups can be
as devastating to the exercise of civil rights as hostile state
actors, and they pose an even greater danger because they operate
in an unregulated realm divorced from the responsibilities and
checking functions of government. In recognition of that danger, I
would hold that
Griffin's element of class-based
discrimination is met whenever private conspirators target their
actions at members of a protected class, by virtue of their class
characteristics, and deprive them of their equal enjoyment of the
rights accorded them under law.
This case is not about abortion. It most assuredly is not about
"the disfavoring of abortions" by state legislatures.
355
Ante, at 273 (discussing
Maher v.
Roe,
432 U. S. 464
(1977);
Harris v.
McRae, 448 U. S. 297 (1980)).
Rather, this case is about whether a private conspiracy to deprive
members of a protected class of legally protected interests gives
rise to a federal cause of action. In my view, it does, because
that is precisely the sort of conduct that the 42d Congress sought
to address in the legislation now codified at § 1985(3). Our
precedents construing the scope of gender discrimination under the
Fourteenth Amendment should not distract us from properly
interpreting the scope of the statutory remedy.
II
The second reason the majority offers for reversing the decision
below is that petitioners' activities did not intentionally deprive
the clinics and their clients of a right guaranteed against private
impairment, a requirement that the Court previously has grafted
onto the
first clause of § 1985(3). See
Carpenters,
463 U. S., at 833. I find it unnecessary to address the merits of
this argument, however, as I am content to rest my analysis solely
on the basis that respondents are entitled to invoke the
protections of a federal court under the
second clause of §
1985(3). Whereas the first clause of the statute speaks of
conspiracies whose purpose is to "depriv[e], either directly or
indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws,"
the second clause addresses conspiracies aimed at "preventing or
hindering the constituted authorities of any State or Territory
from giving or securing to all persons within such State or
Territory the equal protection of the laws."
Respondents attempted to brief the issue for the Court in a
supplemental brief on reargument, but the effort was rejected by a
majority of the Court. See 505 U. S. 1240 (1992). Although the
issue is open to be decided on remand, I agree with JUSTICE STEVENS
that "[r]espondents have unquestionably established a claim under
the second clause of § 1985(3),
356
the state hindrance provision."
Ante, at 339 (dissenting
opinion). We have not previously had occasion to consider the scope
of the statute's "prevention or hindrance" provision, but it is
clear that the second clause does not require that actionable
conspiracies be "aimed at interfering with rights" that are
"protected against private, as well as official, encroachment."
Carpenters, supra, at 833. Rather, it covers conspiracies
aimed at obstructing local law enforcement. See
Griffin, 403
U. S., at 98-99 (second clause of § 1985(3) prohibits "interference
with state officials");
Great American Fed. Sav. &
Loan Assn. v.
Novotny, 442 U. S., at 384 (STEVENS,
J., concurring). Like JUSTICE STEVENS, I am satisfied by my review
of the record that the District Court made findings that adequately
support a conclusion that petitioners' activities are class based
and intentionally designed to impede local law enforcement from
securing "the equal protection of the laws" to the clinics and the
women they serve. See 726 F. Supp., at 1489, and n. 4, and
1496.
III
In
Griffin, this Court "resurrect[edJ" § 1985(3) "from
its interment under
Collins v.
Hardyman, 341 U. S. 651 (1951)," to
hold that the statute provided a federal remedy for those injured
by purely private conspiracies.
Novotny, supra, at 395, n.
19 (WHITE, J., dissenting). That resurrection proved a false hope
indeed. The statute was intended to provide a federal means of
redress to the targets of private conspiracies seeking to
accomplish their political and social goals through unlawful means.
Today the Court takes yet another step in restricting the scope of
the statute, to the point where it now cannot be applied to a
modern-day paradigm of the situation the statute was meant to
address. I respectfully dissent.
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