BRAY ET AL. v. ALEXANDRIA WOMEN‘S HEALTH CLINIC ET AL.
No. 90-985
Supreme Court of the United States
January 13, 1993
Argued October 16, 1991—Reargued October 6, 1992
506 U.S. 263
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 Wetherfield, 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-
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 National 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 J. Wilder.
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.
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether the first clause of
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
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
A
In Griffin this Court held, reversing a 20-year-old precedent, see Collins v. Hardyman, 341 U. S. 651 (1951), that
States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.”
We have not yet had occasion to resolve the “perhaps“; only in Griffin itself have we addressed and upheld a claim under
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
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
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.
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
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 322-323 (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
B
Respondents’ federal claim fails for a second, independent reason: A
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’
“[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
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-
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
Two of the dissenters claim that respondents have established a violation of the second, “hindrance” clause of
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), which is alone enough to exclude it from our consideration.10 Nor is it true that “[t]he
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.
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-
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
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 rights-guaranteed-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. ThisEqually 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
III
Because respondents were not entitled to relief under
Petitioners seek even more. They contend that respondents’
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.
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,
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.
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,
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
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.”
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
“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
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
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-
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
A
The amalgam of concepts reflected in
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 class-based, 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; Cong. Globe, 42d Cong., 1st Sess., App. 188 (remarks of Rep. Willard); Cong. 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
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).
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.” Cong. 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
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
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
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-
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
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
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-Carpenters 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 extratextual limitation 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
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
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-
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 rational-basis 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
The only remaining question is whether respondents have demonstrated, and the District Court has found, a conspiracy thus actionable under the prevention clause.11 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 with
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
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 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
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 any one 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
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-
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.10
“[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-
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-
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 any one 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
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
For present purposes, it is important to note that in each of these cases the Court narrowly construed
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
“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, [Cong. 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-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
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
The concerns that persuaded the Court to adopt a narrow reading of the text of
“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.
IV
The question left open in Griffin—whether the coverage of
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.” Cong. 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).
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 class-based 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-
The second proposition deserves more than the Court‘s disdain. It plausibly describes an assumption that intent
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
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 eyes—wholly 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
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
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.
Central to the holding in Geduldig was the Court‘s belief that the disability insurance system before it was a plan that
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
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
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
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
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-
“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
“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-
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 class-based 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.” Id., at 106. 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 in-terstate travel. The defendants in Griffin, for example,
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
Respondents have unquestionably established a claim under the second clause of
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
We have not previously considered whether class-based animus is an element of a claim under the second clause of
Kush suggests that Griffin‘s strictly construed class-based animus requirement, developed for the first clause of
“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
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
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
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
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.
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. Wilson 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
“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.
Yet the Court holds otherwise, and it does so primarily on the basis of an “element” of the
A
As the Court explained in Griffin,
Griffin‘s narrowing construction of
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
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
B
Even if I had not dissented in Carpenters, I would still find in today‘s case that
If women are a protected class under
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 state-protected interests, including the state laws that make abortion legal,
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
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
Because
In today‘s case, I see no reason to hold a
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.”
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
This case is not about abortion. It most assuredly is not about “the disfavoring of abortions” by state legislatures.
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
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
III
In Griffin, this Court “resurrect[ed]”
Notes
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
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. 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).
“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 or 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).
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 ...
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 sit-in would not have been actionable even if police had been overwhelmed 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, 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).
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-
“. . . 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).
JUSTICE 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.
In Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366 (1979), we held thatCarpenters 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
“[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 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.”
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 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.”
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
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
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