Amicus Curiae Brief — Bray v. Alexandria Women's Health Clinic

Iu the Supreme Court of the Unit

OCTOBER TERM, 1990

JAYNE BRAY, ET AL., PETITIONERS

v.

ALEXANDRIA WOMEN’S HEALTH CLINIC, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

BARBARA L. HERWIG

LOWELL V. STURGILL, JR.

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

RFST AVAILABLE COPY am

QUESTIONS PRESENTED

1. Whether a conspiracy to deter pregnant women

from obtaining abortions involves the kind of class-based

animus required by 42 U.S.C. 1985(3).

2. Whether obstructing access to a medical facility de-

prives out-of-state patients of their constitutional right

of interstate travel.

(1)

TABLE OF CONTENTS

Interest of the United States _

Statement .. _

Summary of argument

Argument:

I. A conspiracy to deter pregnant women from

having abortions does not involve the kind of

class-based animus required by 42 U.S.C.

A. Sateeduction

B. Opposition to ehestion is net an \ fovidlens

class-based discrimination against women

under Section 1985(3) -

C. Defining the cateyory as : Craeein nites

abortions” does not further the correct anal-

ysis under Section 1985(3) ss sists

Ii. Obstructing access to a medical facility does net

without more deprive out-of-state patients of

the constitutional right of interstate travel _

A. The right to travel interstate is not violated

in the absence of proof that the defendant

has purposefully discriminated against per-

sons who travel interstate wae

B. Petitioners’ demonstrations did not etsiate

respondents’ right to travel interstate —__

eh acc rncinisinsceeeernercececeeses

TABLE OF AUTHORITIES

Cases:

Action V. Gannon, 450 F.2d 1227 (8th Cir. 1971).

Air Courier Conf. cf America Vv. American Postal

Workers’ Union, 1! S. Ct. 913 (1991) .

Aptheker v. Secretary of State, 378 US. 500

(1964) ... aiiicaiines m Git iltaleccdsicicieeseeemenanentmnana

(111)

Page

~]

13

20

23

s 88

24

IV

Cases—Continued: Page

Attorney General Vv. Soto-Lopez, 476 U.S. 898

as ...23, 24, 25, 27

Bigelow Vv. Virginia, 421 US. 809 (1975) pansain cali 28

Briscoe Vv. LaHue, 460 U.S. 325 (1983) . a 12

Califano Vv. Aznavorian, 439 U.S. 170 (1978) . 24

Chapman V. Houston Welfare Rights Org., 441

es ee I a a 12

Conroy V. Conroy, 575 F.2d 175 (8th Cir. 1978) 1l

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa.

1823) (No. 3,230) . 23

Cousins V. Terry, 721 F. “Supp. 426 (ND.N.Y.

1989) _. , 9-10, 21

Crandall v. ‘Nevada, ‘73 US. (6 Wall. ) 35 (1867) 23, 24

District of Columbia v. Carter, 409 U.S. 418

| SRR eraser aie SES tee as ‘12

Doe v. Bolton, 410 U.S. 170 (1973) . sale aS 28

Dunn V. Blumstein, 405 U.S. 330 (1972) . nit ab 25

Edwards Vv. California, 314 U.S. 160 (1941) 23, 24

Geduldig Vv. Aiello, 417 U.S. 484 (1974) __ 6, 16, 17, 18, 19

General Electric Co. v. Gilbert, 429 US. 125

SN aceiniinsiiistiatatieneaitiapnietii tei ieee oe 17-18

General Motors Corp. v. United States, 110 S. Ct.

2528 (1990) . 7

Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) 2

Gozlon-Peretz v. United States, 111 S. Ct. 840

GORI sseabicesoceiibiisiiceephee eee eae 7

Great American Federal Savings & Loan Ass’ nv.

Novotny, 442 U.S. 366 (1979) __. 1, 8, 9, 10, 11, 20

Griffin Vv. Breckenridge, 403 U.S. 88 (1971) eed passim

Haig Vv. Agee, 453 U.S. 280 (1981) - ewer 24

Harris Vv. McRae, 448 U.S. 297 (1980) _ ehien 6, 10, 19, 20

Hodgson V. Minnesota, 110 S. Ct. 2926 (1990). 20

Hooper V. Bernalillo County Assessor, 472 U.S. 612

(1985) . . 24, 25

IT vy. Vencap, Ltd., 519 F.2d 1001 (24 Cir. 1975). 24

International Union, United Automobile, Aero-

space & Agric. Implement Workers of America

Vv. Johnson Controls, Inc., 111 S. Ct. 1196

( ae shea 19

Vv

Cases—Continued : Pi >

Jones Vv. Alfred H. Mayer Co., 392 US. 409

IID cccieenenitetninesiinatietit tee er Saat ARTE eee 8

Kent v. Dulles, 357 U.S. 116 (1958). 24

Kush Vv. Rutledge, 460 U.S. 719 (1983) : 9

Lewis Vv. Pearson Foundation, Inc., 908 F.2d 318,

vacated, 917 F.2d 1077 (8th Cir. 1990) 10

Life Ins. Co. of N. Am. V. Reichardt, 591 F.2d 499

(9th Cir. 1979) . ll

Long V. Laramie County Community College Dist.,

840 F.2d 743 (10th Cir.), cert. denied, 488 U.S.

I I ic aac sr ee 11

Martinez Vv. Winner, 771 F.2d 424 (10th Cir.

aa CE SIE a Rs 2 RE I a 2

Memorial Hospital v. . Maricopa County, 415 U.S.

I I ee 25

Mississippi Women’s Medical Clinic Vv. McMillan,

866 F.2d 788 (5th Cir. 1989) 10, 18, 14

Mizell v. North Broward Hosp. Dist., 427 F.2d 468

(5th Cir. 1970) a ERE SIs Arner x

NOW v. Operation Rescue, 726 F. Supp. 300

I I cso ccrctineteeentriceteismansaeesereecna x

National Abortion Fed’n Vv. Operation Rescue, 721

F. Supp. 1168 (C.D. Cal. 1989) 10, 15, 21

New York State NOW V. Terry:

704 F. Supp. 1247 (S.D.N.Y.1989) 10

886 F.2d 1339 (2d Cir. 1989), cert. denied,

110 S. Ct. 2206 (1990) Laces 5, 9,11, 15

Newport News Shipbuilding & Dry Dock Co. v.

EEOC, 462 U.S. 669 (1983) . : 19

Novotny Vv. Great American Federal ‘Savings &

Loan Ass'n, 584 F.2d 1235 (3d Cir. 1978), rev'd,

a ce 1!

Paul Vv. Virginia, 75 U.S. (8 Wall.) 168 (1869) 23

Personnel Adm’r Vv. Feeney, 442 U.S. 256 (1979). c 16

Portland Feminist Women’s Health Center v. Ad-

vocates for Life, Inc., 712 F. Supp. 165 (D. Or.

1988) _ 10, 21

Roe Vv. Abortion Abolition Society, si F2d 931

(5th Cir.), cert. denied, 484 U.S. 848 (1987) 10, 21-22

Roe Vv. Operation Reseve, 710 F. Supp. 577 (E.D.

Pa. 1989) | sciarenineinadenmsestihemintbiladadtetnonden not tit 8, 10, 21

|

VI vit

Cases—Continued : Page Statutes—Continued : Page

Roe v. Wade, 410 U.S. 113 (1973) 10, 20 Adolescent Family Life Act, 42 U.S.C. 300 et seq.:

Russello Vv. United States, 464 U.S. 16 (1983). 7 42U.S.C.3002 1

Shapiro V. Thompson, 394 U.S. 618 (1968). 24, 25, 26, 28 2000¢

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 a gay an of SCS, — VI, 42 US.C. 200% 17,19

ERI UMTS coe Nh a ee oe 23

Sosna V. lowe, 419 U.S. 3938 (1975) 25 42 U.S.C. 20000 () nen 19

Southwestern Medical Clinics of Nevada, Inc. V. Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 7, 9, 20

Operation Rescue, 744 F. Supp. 230 (D. Nev. § 1, 17 Stat. 13 (42 U.S.C. 1983) 0. - 7

RRR SAC Si SE oateaet cape cece a eR ale 9 § 2, 17 Stat. 13-14 (42 U.S.C. 1985(3)) |. . Fla

Sullivan v. Little Hunting Park, Inc., 396 US. 229 Pregnancy Discrimination Act of 1978, Pub. L.

ERR a en oe a A eG 8 No. 95-555, 92 Stat. 2076 Se eideneaaial ....-- 18,19

The Passenger Cases, 48 U.S. (7 How.) 283 Se

REE SE eerie Sena a ele ee 24 20 U.S.C. 1688 ................ nieeiemeniia sukiemalaes tabaci acs 1

Twining V. New Jersey, 211 U.S. 78 (1908) 23 42 U.S.C. 300a-6 ae abbas 1

United Brotherhood of Carpenters & Joiners v. 42 U.S.C. 1982 | pee Seon x

Scott, 463 U.S. 825 (1983) _..... passim 42 U.S.C. 1983 eae de tere 7

United States v. Guest, 383 U.S. 745 (1966) ___. 1, 24, 25, SI Es Ss passim, la

26, 27, 28 :

Village of Arlington Heights v. Metropolitan Hous- Miscellaneous :

ing Dev. Corp., 429 U.S. 252 (1977) 16 Cong. Globe, 42d Cong., Ist Sess. (1871) 12

Volk v. Coler, 845 F.2d 1422 (7th Cir. 1988) __ 11

Washington Vv. Davis, 426 U.S. 229 (1976) 16

Webster v. Reproductive Health Services, 109

a I 10

Wickard v. Filburn, 317 U.S. 111 (1942). cians 27

Zobel v. Williams, 457 U.S. 55 (1982) ....23, 24, 25

Constitution and statutes:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) 23

Art. IV, §2 (Privileges and Immunities

AEM S artic ee en aN = 23

RL Sve eo ev nee Ee 10, 28

Amend. V (Due Process Clause). 1, 24

Amend. XIV:

pes Ca 24

Equal Protection Clause 6, 16, 17, 19, 24

Privileges and Immunities Clause 23

Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209,

Ree RE RA ik ana 1

Ju the Supreme Court of the United States

OcTorer Tex, 1990

No. 90-985

JAYNE BRAY, ET AL., PETITIONERS

v.

ALEXANDRIA WOMEN’S HEALTH CLINIC, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

Various acts of Congress exclude abortion services from

the ambit of federal medical assistance programs. See,

e.g, 20 U.S.C. 1688; 42 U.S.C. 300a-6 ‘Title X family

planning programs: ; 42 U.S.C. 300z ‘Adolescent Family

Life Act); Act of Sept. 30, 1976, Pub. L. No, 94-439,

$209, 90 Stat. 1434 ‘(Hyde Amendment). A deci-

sion by this Court that opposition to abortion is a for

of gender-based discrimination could bring those laws into

question, on the ground that they violate equal protection

principles underlying the Due Process Clause by diserimi-

nating against women. The United States also partici-

pated as amicus curiae in two earlier cases involving the

scope of 42 U.S.C. 198513), Griffin v. Breckenridge, 403

U.S. 88 (1971), and Great American Federal Savings &

Loan Ass'n Vv. Novotny, 442 U.S. 366 (1979), and was a

party in United States v. Guest, 383 U.S. 745 (1966),

‘1)

2

which involved a closely related federal criminal statute,

18 U.S.C. 241.'

STATEMENT

1. Petitioner Operation Rescue is an unincorporated

association with the principal goals of preventing abor-

tions and ending the legalization of abortion. Operation

Rescue seeks to achieve these goals by, among other means,

conducting “rescue’’ demonstrations at abortion clinics.

Petitioners also include six individuals who oppose abor-

tion and its legalization, and who participate in demon-

strations organized and planned by Operation Rescue.

Respondents are nine abortion clinics located in the greater

Washington, D.C., metropolitan area* and five organiza-

tions that seek to establish and preserve access to abor-

tion. Pet. App. 16a, 18a-20a.

During “rescue” demonstrations, petitioners obstruct

the entrances to and exits from an abortion clinic, thereby

effectively closing the clinic temporarily, preventing abor-

tions from being performed for that period, and “rescu-

ing” the fetuses that would otherwise have been aborted.

Pet. App. 18a. The purpose of these demonstrations, as

described in Operation Rescue’s literature, is to “inter-

vene between abortionists and the innocent victims,” by

“physically blockading abortion mills with {human}

bodies.” Jd. at 20a ‘quoting Operation Rescue, Na-

tional Day of Rescue—October 29, 1988 (1988)). During

' The United States, in addition, has particpated in the defense

of actions brought against federal officers and employees under 42

U.S.C. 1985(3). E.g., Martinez V. Winner, 771 F.2d 424 (10th Cir.

1985) (federal prosecutors); Jafree V. Barber, 689 F.2d 640 (7th

Cir. 1982) (FBI agents); Gillespie Vv. Civiletti, 629 F.2d 6837 (9th

Cir. 1980) (U.S. marshals).

* The Washington metropolitan area encompasses the Distriet of

Columbia; Prince Georges and Montgomery Counties in Maryland;

and Arlington County, Fairfax County, the City of Fairfax. the

City of Falls Church, Loudon and Prince William Counties, and the

City of Alexandria in Virginia. Pet. App. 17a n.2.

3

such a demonstration, no person—male or female—is

allowed by the demonstrators to enter the clinic.*

2. Respondents brought this action in the United States

District Court for the Eastern District of Virginia, seek-

ing, among other things, to enjoin petitioners from im-

peding access to certain medical facilities. In their com-

plaint, respondents asserted that petitioners had violated

42 U.S.C. 1985(3) by conspiring to interfere with re-

spondents’ rights to travel interstate and to obtain abor-.

tions. Respondents included in their complaint pendent °

state law claims for trespass, public nuisance, and tortious

interference with business relationships. Pet. App. 27a.

Following an expedited hearing, the district court en-

tered a temporary restraining order, barring petitioners

from conducting demonstrations at certain medical facili-

ties. Pet. App. 6a. After a trial, the court issued a

permanent injunction, barring petitioners from “trespas-

sing on, blockading, impeding, or obstructing access to or

egress from the |listed] premises.” /d. at lla. The court

found that “|s|ubstantial numbers of women seeking the

services of clinics in the Washington Metropolitan area

travel interstate to reach the clinics,” id. at 22a, and held

that petitioners had violated 42 U.S.C. 1985/3) by con-

spiring “for the purpose, either directly or indirectly, of

depriving women seeking abortions and related medical

and counselling services, of the right to travel,’’ Pet. App.

29a-30a.*

8 [While the child-killing facility is blockaded, no one is per-

mitted to enter past the rescuers, neither women nor men.

Doctors, nurses, patients, staff, abortion-bound women, families

of abortion-bound women—all are prevented from entering the

abortuary while the rescue is in progress.

J.A. 25 (Affidavit of Randall Terry) (emphasis added). The above

quotation also is included in the district court’s opinion, except

that the district court’s opinion omits the phrase “neither men nor

women.” See Pet. App. 20a.

* The dates for the demonstrations that petitioners had planned

for November 1989 had passed by the time that the district court

4

In reaching that conclusion, the district court acknowl-

edged that, under this Court’s decisions in Griffin v. Breck-

enridge, 403 U.S. 88 (1971), and United Brotherhood of

Carpenters & Joiners Vv. Scott, 463 U.S. 825 (1983)

(Carpenters Vv. Scott), a plaintiff must prove the follow-

ing four elements in order to establish a violation of Sec-

tion 1985/3): (1) the defendant engaged in a conspiracy;

(2) the defendant did so 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; (3) a co-conspirator took

some act in furtherance of the conspiracy; and (4) a per-

son was thereby injured in his person or property, or was

deprived of a right or privilege enjoyed by a citizen of

the United States. Pet. App. 27a-28a, citing Griffin v.

Breckenridge, 403 U.S. at 102-103, and Carpenters v.

Scott, 463 U.S. at 828-829. The court concluded that

respondents had easily satisfied the first, third, and fourth

elements of the Griffin test. Pet. App. 28a-3la. With

regard to the second element, the court held that “gender-

based animus satisfies the ‘purpose’ element of Section

i985'3),” and that “a conspiracy to deprive women seek-

ing abortions of their rights guaranteed by law is action-

able under Section 1985/3)” because respondents’ “mem-

bers and patients constitute a subset of a gender-based

class.” Pet. App. 28a-29a. The court did not decide

whether petitioners also had violated Section 198513) by

obstructing respondents’ right to obtain an abortion, noting

that respondents’ claim in this regard was “problematic”

hecause of the “likely absence of state action on these

facts,” Pet. App. 3la-32a. See also id. at 3la-33a. The

court also held that respondents were entitled to relief

under their state law trespass and public nuisance theo-

issued the permanent injunction. Nonetheless, relving on the

“capable of repetition, yet evading review” doctrine, the district

court ruled that the case was not moot. Pet. App. 25a-26a.

5

ries, but not on their ciaim for tortious interference with

business relationships. /d. at 33a-36a.°

3. Petitioners appealed, and the court of appeals af-

firmed in a per curiam opinion. Pet. App. la-9a.° The

court stated that the district court’s “holding that gender-

based animus satisfie{d|] the ‘purpose’ element of

§$ 198513) has been forecast by” earlier Fourth Circuit

case law. /d. at 8a. Moreover, agreeing with the Second

Cireuit, the court held that “biccking access to medical

services provided by abortion facilities which serve an

interstate clientele violates the constitutional right to

travel.” Pet. App. 8a, citing New York State NOW v.

Terry, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 110

S. Ct. 2206 (1990). The court did not decide whether

Section 1985/3) encompasses violations of a right to

privacy. Pet. App. 9a.’

SUMMARY OF ARGUMENT

I. In Griffin v. Breckinridge, 403 U.S. at 102, this

Court concluded that Section 1985/3) requires “some

racial, or perhaps otherwise class-based, invidiously dis-

criminatory animus behind the conspirators’ action.” No

such invidiously discriminatory purpose is present here.

Petitioners do not aim their anti-abortion demonstrations

exclusively at women; nor do petitioners harbor a gender-

based animus. Petitioners target their actions at anyone

5 The permanent injunction was originally set to terminate on

July 31, 1990, but the district court subsequently extended the order

on two occasions. Pet. App. 57a. The order is now scheduled to ex-

pire on September 24, 1991. By its own terms, however, the injunc-

tion may be extended for good cause shown. /d. at 60a.

® Respondents appealed the district court’s denial of broader in-

junctive relief. The court of appeals upheld the district court’s

judgment in this respect, Pet. App. 8a-9a, and respondents did not

seek review in this Court of that aspect of the judgment below.

7™The Fourth Circuit also upheld the district court’s refusal to

dismiss the state law claims and to award respondents attorneys

fees and costs. Pet. App. 9a.

6

—male or female—who is involved in the abortion proc-

ess. In fact, it is more accurate to say that petitioners’

demonstrations are targeted at abortion itself than at

persons of any particular gender.

Opposition to abertion is not a form of gender-based

discrimination, even though only women can have abor- ~

tions. Like the Equa! Protection Clause, Section 1985 (3)

does not provide a remedy for conduct that only has a

disproportionate effect on women; it requires proof of

invidious discrimination. Treating women differently be-

cause they seek an abortion is not a form of invidious

discrimination on the basis of gender. The Court has

held that treating women differently due to pregnancy is

not necessarily a form of gender discrimination. Gedul-

diq V. Aiello, 417 U.S. 484, 496-497 n.20 (1974). That

principle applies with greater force in the case of abor-

tion, since “|a]bortion is inherently different from other

medical procedures, because no other procedure involves

the purposeful termination of a potential life.” Harris v.

McRae, 448 U.S. 297, 325 (1980).

II. The Court has held that the Constitution protects

the right to travel interstate, and that Section 1985/3)

provides a damages remedy for a violation of that right

by private parties. The Court’s cases, however, have not

found that the right to travel interstate is violated in the

absence of purposeful conduct discriminating against that

right. In this case, the district court did not find that

petitioners hold demonstrations for the principal purpose

of preventing respondents from travelling interstate, nor

did the courts below hold that petitioners’ actions discrim-

inate against out-of-state residents. Respondents there-

fore have not proved a violation of their right to travel

interstate. .

7

ARGUMENT

I. A CONSPIRACY TO DETER PREGNANT WOMEN

FROM HAVING ABORTIONS DOES NOT INVOLVE

THE KIND OF CLASS-BASED ANIMUS REQUIRED

BY 42 U.S.C. 1985(3)

A. Introduction

Section 1985(3) of Title 42 does not provide a damages

remedy for all conspiracies that injure a person in the

exercise of legal rights.* By its terms, Section 1985/3)

* As noted above, the district court relied on Section 1985(23)

(along with ancillary state law claims) as a basis for enjoining

future demonstrations by petitioners. In entering that injunction,

however, the district court did not address the question whether

Section 1985(3) authorizes a district court to award injunctive

relief, as opposed to damages. In our view, it is doubtful that the

district court had the power under Section 1985(3) to enter an

injunction against petitioners.

By its terms, Section 1985(3) provides only that a plaintiff “may

have an action for the recovery of damages * * * against any one

or more of the conspirators” (emphasis added). In this regard,

Section 1985(3) differs sharply from 42 U.S.C. 1983, which also

derives from the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13.

See id. §1, 17 Stat. 13 (original version of Section 1983); id. § 2,

17 Stat. 13-14 (original version of Section 1985(3)). In contrast

to Section 1985(3), Section 1983 authorizes “action[s] at law,

suit|s| in equity, or other proper proceeding[s| for redress” (em-

phasis added). In light of the affirmative provision for damages

in Section 1985(3), the absence of any reference to injunctive relief

in that law, and the contrast between Sections 1983 and 1985/3)

with respect to the type of relief that can be awarded, it is unlikely

that Congress authorized the courts to award injunctive relief

when in 1871 it adopted what is now Section 1985(3). See Russello

Vv. United States, 464 U.S. 16, 23 (1983) (“[W here Congress in-

cludes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Con-

gress acts intentionally and purposely in the disparate inclusion

or exclusion.”); Gozlon-Peretz v. United States, 111 S. Ct. 840,

847 (1991); General Motors Corp. v. United States, 110 S. Ct.

2528, 2554 (1990). Moreover, this Court has made clear that Sec-

tion 1985(3) provides no substantive rights itself, and is only

8

applies only to those conspiracies whose “purpose [is to]

depriv{e] * * * any person or class of persons of the equal

protection of the laws, or of equal privileges and immuni-

ties under the laws.” Two decades ago, in Griffin V.

Breckenridge, this Court interpreted that clause to mean

that there must be “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the

conspirators’ action.” 403 U.S. at 102 & n.10. Griffin

remedial. Carpenters v. Scott, 463 U.S. at 833; Great American

Federal Savings & Loan Ass'n Vv. Novotny, 442 U.S. 366, 372

(1979). This situation is therefore quite unlike the one that this

Court addressed in Sullivan v. Little Hunting Park, Inc., 396 U.S.

229 (1969). There, this Court addressed the question whether a

remedy could be fashioned when a statute, 42 U.S.C. 1982, conferred

substantive rights without also authorizing a specific remedy. By

contrast, here the substantive right must be found elsewhere; the

only purpose of the statute is to provide a remedy; and that

remedy by its terms is limited to damages. Nonetheless, some

courts have held that injunctive relief is available under Section

1985(3). See Mizell vy. North Broward Hosp. Dist., 427 F.2d 468,

473 (5th Cir. 1970); Action v. Gannon, 450 F.2d 1227, 1237-

1238 (8th Cir. 1971) (en banc). Neither case, however, is persua-

sive. Mizell relied on a dictum in Jones v. Alfred H. Mayer Co.,

392 U.S. 409, 414 (1968), and on Sullivan vy. Little Hunting Park,

Inc., 396 U.S. at 238-240, which is inapposite, as explained above.

Action simply relied on Mizell. Several district courts in cases

like this one have entered preliminary injunctions, see, ¢.g.,

NOW v. Operation Rescue, 726 F. Supp. 300, 305 (D.D.C. 1989),

or permanent injunctions, see, e.g., Roe v. Operation Rescue,

710 F. Supp. 577, 589 (E.D. Pa. 1989), without addressing the ques-

tion whether injunctive relief is available under Section 1985(3).

This case does not require the Court to answer that question.

Neither court below addressed it; petitioners did not include it as a

Question Presented in their certiorari petition; and it does not go

to the jurisdiction of the federal courts to adjudicate this case.

Under these circumstances, there is no reason to resolve that ques-

tion here. See Air Courier Conf. of America Vv. American Postal

Workers’ Union, 111 8. Ct. 913, 917 (1991). Nonetheless, because

federal officers have been sued under Section 1985/3), see page 2

note 1, supra, we mention this question in order to ensure that this

Court does not inadvertently resolve it (or suggest that the Court

has resolved it) without the benefit of a complete presentation in

an appropriate case.

9

derived its construction of Section 1985(3) from its text

and from the legislative history of the Ku Klux Klan Act

of 1871, ch. 22, 17 Stat. 13, which revealed that Congress

did not intend Section 1985(3) to serve as a general fed-

eral tort law. 403 U.S. at 101-102 & n.10. Applying that

class-based animus requirement, Griffin concluded that

allegations of a conspiracy to deprive individuals, because

of their race, of equal protection of the law, or of equal

privileges and immunities under the law, are actionable

under Section 1985(3). 403 U.S. at 103. Since Griffin,

this Court reaffirmed the principle that Section 1985/3)

supplies a remedy only for conspiracies motivated by an

invidiously discriminatory animus, stating that this con-

clusion represents “the authoritative construction of the

statute.” Carpenters v. Scott, 463 U.S. at 835. See also

id. at 849 (Blackmun, J., dissenting). See Kush v. Rut-

ledge, 460 U.S. 719, 725-726 (1983); Great American

Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366

(1979).°

In this case, the district court took two steps in order

to characterize petitioners’ motives for its anti-abortion

demonstrations as an “invidiously discriminatory ani-

mus.” First, the court held that Section 1985/3) encom-

passes not only racial animus but gender-based animus

as well. Pet. App. 28a-29a. Second, the court ruled that

petitioners’ efforts to deter pregnant women from having

abortions constitutes gender-based animus for purposes

of Section 1985/3). Pet. App. 29a-30a. The court of ap-

peals endorsed both propositions, albeit in a summary

fashion. Jd. at 8a. Most of the other courts that have

addressed this question have followed the same analysis.'”

* The Griffin requirement that the defendant act with an invidi-

ously discriminatory animus does not also demand, for example,

that the plaintiff be a member of a racial minority. A white civil

rights worker could recover damages under Section 1985(3) if he

was the victim of an assault motivated by bias against blacks.

™ See, e.g... New York State NOW v. Terry, 886 F.2d at 12358-

1359; Southwestern Medical Clinics of Nevada, Ine. v. Operation

Rescue, 744 F. Supp. 230 (D. Rev. 1989); Cousins v. Terry, 721

10

This Court has never decided whether Section 1985/3)

reaches gender-based animus.'' Griffin expressly declined

F. Supp. 426, 430 (N.D.N.Y. 1989); Portland Feminist Women’s

Health Center v. Advocates for Life, Inc., 712 F. Supp. 165, 169

(D. Or. 1988) ; Roe v. Operation Rescue, 710 F. Supp. at 581; New

York State NOW v. Terry, 704 F. Supp. 1247, 1259 (S.D.N.Y.),

aff'd, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 110 S. Ct. 2206

(1990). Contra Mississippi Women's Medical Clinic Vv. McMillan,

866 F.2d 788 (5th Cir. 1989); National Abortion Fed'n Vv. Operation

Rescue, 721 F. Supp. 1168, 1171 (C.D. Cal. 1989). Cf. Roe v. Abor-

tion Abolition Society, 811 F.2d 931 (5th Cir.), cert. denied, 484

U.S. 848 (1987).

The courts below did not decide whether Section 1985(3) reaches

violations of a right to privacy. Pet. App. 9a, 3la-33a. That ques-

tion is materially different from the one that those courts discussed

in this case. This Court held in Carpenters v. Scott, 463 U.S. at

831-834, that a plaintiff must prove that a conspiracy involved state

action when the conspiracy is directed against a right (there, the

First Amendment) that by definition is protected only against state

action. “[T])he right to an abortion” discerned in Roe v. Wade

would also fit into that category since it was “derived from the Due

Process Clause,” Webster v. Reproductive Health Services, 109

S. Ct. 3040, 3058 (1989) (plurality opinion), citing Ree v. Wade,

410 U.S. 113, 164 (1973); see also Harris v. McRae, 448 U.S. 297,

312 (1980), which protects individuals only against state action,

Carpenters v. Scott, 463 U.S. at 831-832.

The lower courts are divided on that question. The district court

in New York State NOW v. Terry, 704 F. Supp. at 1260, held that

Section 1985(3) encompassed a conspiracy to deny women the right

to have an abortion. An Eighth Circuit panel came to the same

conclusion, Lewis Vv. Pearson Foundation, Inc., 908 F.2d 318, 322,

but that opinion was vacated when rehearing en banc was granted,

and the en banc court, by an equally divided vote, affirmed the

district court’s judgment dismissing the plaintiff's complaint,

917 F.2d 1077 (1990). Most district courts have held that Section

1985(3) does not reach a right to aBortion, or have not resolved the

issue. E.g., Portland Feminist Women’s Health Center Vv. Advocates

for Life, Inc., 712 F. Supp. at 168; Roe v. Operation Rescue, 710

F. Supp. at 583. The Court need not resolve that issue in this case,

however, because the lower courts did not do so.

1 Tve Members of this Court have divided over this question.

Comps re Great American Federal Savings & Loan Ass'# Vv. Novotny,

442 U.S. at 285 & n.7 (Stevens, J.. concurring) (Congress did not

envision that Section 1985(3) would reach claims of gender-based

11

to decide “whether a conspiracy motivated by invidiously

discriminatory intent other than racial bias would be ac-

tionable” under Section 1985/3). 403 U.S. at 102 n.9.

The Court again left that question open in Carpenters v.

Scott, which held that Section 1985/3) does not protect

workers who refuse to join a union. The Court wrote

that “it is a close question whether § 1985/3) was in-

tended to reach any class-based animus other than animus

against Negroes and those who championed their cause,

most notably Republicans.” 463 U.S. at 836.

On the one hand, nothing in the text of Section 1985

(3) indicates an affirmative intention to reach conspir-

acies based on gender, and it would be fanciful to ascribe

such an intent to the 1871 Congress. The immediate ob-

ject that Congress had in mind for this law was “to com-

bat the prevalent animus [in the South! against Negroes

and their supporters.” Carpenters v. Scott, 463 U.S. at

836. Beginning in 1866, the Ku Klux Klan conducted a

campaign of assault, terror, and murder against the

newly freed slaves and their sympathizers, and became

virtually a shadow government in the formerly rebellious

States because of the inability or unwillingness of state

officials to control the widespread violence. “The Klan’s

goal was to overthrow Republican Reconstruction policies

both by terrorizing local supporters of those policies in

animus), with id. at 389 n6 (White, J. dissenting) (Section

1985(3) reaches gender-based discrimination) and Carpenters v.

Scott, 463 U.S. at 853 (Blackmun, J., dissenting) (expressing the

view that gender-based animus was a “class trait! |” that met the

animus requirement). Several circuit and district courts have held

that Section 1985(3) reaches gender-based animus. New York

State NOW Vv. Terry, 886 F.2d at 1358-12359; Volk v. Coler, 845 F.2d

1422, 1434 (7th Cir. 1988); Life Ins. Co. of N. Am. V. Reichardt,

591 F.2d 499, 505 (9th Cir. 1979) ; Novotny Vv. Great American Fed-

eral Savings & Loan Ass'n, 584 F.2d 1235 (3d Cir. 1978) (en banc),

rev'd on other grounds, 442 U.S. 366 (1979); Conroy Vv. Conroy,

575 F.2d 175, 177 (8th Cir. 1978); pp. 9-10 note 10, supra (collect-

ing district court decisions). See Long v. Laramie County Com-

munity College Dist., 840 F.2d 743, 750-752 (10th Cir.) (implicitly

assuming that Section 1985(3) reaches gender-based animus), cert.

denied, 488 U.S. 825 (1988).

12

order to place sympathetic Democrats in office, and

when that failed by supplanting the authority of local

officials with mob violence.” Jd. at 850 n.15 ( Blackmun,

J., dissenting). For these reasons, the Court has ex-

pressed doubt that Section 1985(3) “went any farther

than its central concern—combating the violent and other

efforts of the Klan and its allies to resist and to frustrate

the intended effects of the Thirteenth, Fourteenth, and

Fifteenth Amendments.” Carpenters v. Scott, 463 U.S.

at 837. On the othr hand, the breadth of the terms used

in the statute—“[{a] 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’’—could be read to encompass gender-based animus."*

Here, as in Griffin and Carpenters v. Scott, there is

no need to answer that question in order to resolve this

case, because the judgment below must be reversed for

other reasons. Even if Section 1985/3) is broad enough

to reach gender-based animus, the actions taken by peti-

tioners are not a form of gender-based discrimination.

See pp. 13-20, infra. Moreover, describing the class here

12 See also, e.g., Briscoe v. LaHue, 460 U.S. 325, 337-340 (1983);

Chapman V. Houston Welfare Rights Org., 441 U.S. 600, 610-611

n.25 (1979); District of Columbia v. Carter, 409 U.S. 418, 425-429

(1973) ; Griffin Vv. Breckenridge, 403 U.S. at 99-102.

13 The Court has said that “there is some legislative history to

support the view that § 1985/3) has a broader reach” than racially

based animus alone. Carpenters v. Scott, 463 U.S. at 836. In this

regard, the Court has pointed to a floor statement of Senator

Edmunds, the manager of the bill on the Senate floor, that “if a

conspiracy were formed against a man ‘because he was a Democrat,

* * * or because he was a Catholic, or because he was a Methodist,

or because he was a Vermonter, .. . then this section could reach

it.” Jd. at 836-837, quoting Cong. Globe, 42d Cong., Ist Sess. 567

(1871). At the same time, the Court has noted that “{t)he provi-

sion that is now § 1985/3), however, originated in the House. The

narrowing amendment, which changed § 1985/3) to its present

form, was proposed, debated, and adopted there, and the Senate made

only technical changes to the bill.” Carpenters v. Scott, 463 U.S.

at 837.

13

as the class of “women seeking abortions” does not further

the analysis under Section 1985/3). See pp. 20-23, infra.

The courts below therefore erred in concluding that re-

spondents stated a claim against petitioners that could

be redressed under Section 1985(3).

B. Opposition To Abortion Is Not An Invidious Class-

Based Discrimination Against Women Under Sec-

tion 1985(3)

1. Operation Rescue and its members do not aim their

anti-abortion activities exclusively at women. Rather, as

the district court found, petitioners direct their actions

at anyone, whether male or female, who assists or is in-

volved in the abortion process—doctors, nurses, counsel-

lors, boyfriends, husbands and family members, staff,

and others. Pp. 3-4, supra. Indeed, it is more accurate

to say that petitioners’ activities are targeted at the

abortion process itself, rather than at persons of any

particular gender. Petitioners’ goal, the district court

noted, is to ‘intervene between abortionists and the inno-

cent victims.” Pet. App. 20a (quoting Operation Rescue,

National Day of Rescue—October 29, 1988 (1988)). The

fact that Operation Rescue’s demonstrations are directed

toward and operate against both men and women is a

strong indication that its actions do not constitute the

type of “discrimination” at which Section 1985(3) was

aimed.

The Fifth Circuit’s decision in Mississippi Women’s

Medical Clinic v. McMillan, 866 F.2d 788 (1989),

is instructive in this respect. There, abortion pro-

testors picketed a medical clinic that performed abor-

tions, and the clinic sought to enjoin the picketing under

Section 1985/3). The court concluded that the clinic was

not entitled to an injunction, because the clinic did not

show that the protestors acted with “an invidious dis-

criminatory animus.” 866 F.2d at 794. As the court

explained, “the record indicates that the protestors do not

target their pro-life advocacy at any particular group.

The protestors (‘who are made up ot both men and

women) confront and try to persuade to their point of

14

view all groups—men, women of all ages, doctors, nurses,

staff, the female security guards, ete.” Ibid. “In fact,”

the Fifth Circuit pointed out, “the animus of the protes-

tors is to dissuade anyone who contributes to the inci-

dence of abortions.” Jbid. For these reasons, the Fifth

Circuit concluded that the clinic had failed to show that

the abortion protestors were motivated by a class-based

animus, as required by Griffin and Carpenters v. Scott.

That is likewise the case here, in light of the district

court’s factual findings. “The purpose of these ‘rescue’

demonstrations,” the district court found, “is to disrupt

operations at the target clinic and indeed ultimately to

cause the clinic to cease operations entirely.” Pet. App.

20a. “By disrupting and blockading family planning and

abortion clinies,” the district court also found, “[peti-

tioners] and their followers hope (i) to prevent abortions,

(ii) to dissuade women from seeking a clinic’s abortion

services, and (iii) to impress upon members of society

the moral righteousness and intensity of their anti-

abortion views.” /bid. Those factual findings, which were

not disturbed by the court of appeals, reveal that the

demonstrations conducted by Operation Rescue have as

their motive an opposition to abortion and thus are con-

ducted for a purpose other than animosity toward women.

Petitioners’ opposition to abortion also cannot be char-

acterized as gender-based discrimination because that op-

position does not implicate all women. Rather, as the

district court recognized, petitioners’ opposition to abor-

tion implicates only a “subset” of women: those women

who seek an abortion or abortion counselling. Pet. App.

29a. That “subset” is in fact a minority of the class of

all women, since the district court did not find that most

women seek an abortion or abortion counselling. What

is more, it is a matter of common knowledge that a

considerable number of women share petitioners’ moral

obieetions to abortion, and petitioners’ demonstrations cer-

tainly cannot be viewed as discriminating against those

women. For these reasons, the actions petitioners take to

prevent clinics from performing abortions are not moti-

15

vated by a bias against women and do not invidiously

discriminate against women as a class within the mean-

ing of Section 1985/3). As one court has put it: “([I]|f

the animus is directed at a particular class of women,

then, by definition, it is not directed at other classes of

women or at women as a class. If that is so, then the

discrimination cannot be gender-based, because it sepa-

rates persons of the same gender from each other and,

obviously, on a basis other than by gender.” National

Abortion Fed’n v. Operation Rescue, 721 F. Supp. 1168,

1171 (C.D. Cal. 1989). Just as there is no gender-

specific position concerning other moral questions, so,

too, there is no specifically “male” or “female” point of

view with respect to abortion.

2. Respondents contend it is irrelevant that petition-

ers’ demonstrations adversely affect only women who seek

abortions or abortion counselling, instead of substantially

all women. Analogizing petitioner's actions to a hypo-

thetical conspiracy involving racial discrimination, re-

spondents note that obstructing access to the polls could

not be defended on the ground that it was directed at

only those blacks who seek to exercise their right to vote.

Br. in Opp. 10. See New York State NOW v. Terry,

886 F.2d at 1359-1360. That analogy is erroneous, how-

ever, for several reasons.

As explained above, petitioners’ demonstrations are

not directed exclusively at the women who seek an abor-

tion or abortion counselling; these demonstrations are

targeted at everyone—male or female—involved in the

abortion process. Respondents also overlook that a sub-

stantial number of women oppose abortion. That fact dis-

tinguishes this case from Griffin v. Breckenridge, in which

there was no suggestion that a substantial number of

blacks opposed granting blacks the right to vote. In other

words, petitioners’ anti-abortion demonstrations are not

a form of gender-based discrimination because they are

aimed at a practice, not at a type of person.

3. The Second Circuit in New York State NOW v.

Terry, 886 F.2d at 1359-1360, and most district courts

16

that have addressed this question appear to have believed

that opposition to abortion is necessarily a form of

gender-based discrimination because only women can

have abortions. That conclusion, however, rests on a

mistaken assumption—that actions with a dispropor-

tionate effect on women inevitably discriminate invid-

iously on the basis of gender. What is true for purposes

of the Equal Protection Clause is also true in the case

of Section 1985(3): What transforms action having a

disproportionate effect on women from the byproduct of

otherwise legitimate conduct into invidious discrimina-

tion against women per se is the intent to disadvantage

women as a class of individuals. See Washington v.

Davis, 426 U.S. 229 (1976); Village of Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S.

252, 264-268 (1977); Personnel Adm’r v. Feeney, 442

U.S. 256, 278-279 (1979). Section 1985/3) does not re-

quire a “specific” or “willful” intent to harm class mem-

bers, as this Court noted in Griffin, 403 U.S. at 102 n.10.

At the same time, Section 1985(3) is violated only when

an individual acts, with or without “scienter,” 403 U.S.

at 102 n.10, for the purpose of injuring a member of a

protected ciass. The “discriminatory purpose” relevant

for the Equal Protection Clause and Section 1985(3)

“implies more than intent as volition or intent as aware-

ness of consequences. It 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.” Personnel

Adm’r v. Feeney, 442 U.S. at 279 (citation and footnote

omitted). That is what Griffin meant by its requirement

that there must be “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the

conspirators’ action.” 403 U.S. at 102 & n.10.

Two eases in which this Court has addressed whether

pregnancy-ba-cd discrimination constitutes gender-based

dis-vimina‘ion supp'y a useful illustration of this point.

For examp'e, in Geduldig Vv. Ai lo, 417 U.S. 484 (1974),

this Court rejected the contention that a state disability

17

insurance program violated the Fourteenth Amendment

Equal Protection Clause by excluding from coverage

pregnancy-related disabilities, even though only women

can become pregnant. The Court found that the program

was “a far cry from cases like Reed v. Reed, 404 U.S. 71

(1971), and Frontiero v. Richardson, 411 U.S. 677

(1973), involving discrimination based upon gender as

such.” Geduldig v. Aiello, 417 U.S. at 496-497 n.20.

This Court reasoned as follows, ibid. :

The California insurance program does not exclude

anyone from benefit eligibility because of gender but

merely removes one physical condition—pregnaney—

from the list of compensable disabilities. While it is

true that only women can become pregnant, it does

not follow that every legislative classification con-

cerning pregnancy is a sex-based classification like

those considered in Reed, supra, and Frontiero, supra.

Normal pregnancy is an objectively identifiable physi-

eal condition with unique characteristics. Absent a

showing that distinctions involving pregnancy are

mere pretexts designed to effect an invidious discrimi-

nation against the members of one sex or the other,

lawmakers are constitutionally free to include or ex-

clude pregnancy from the coverage of legislation

such as this on any reasonable basis, just as with

respect to any other physical condition.

The lack of identity between the excluded disability

and gender as such under this insurance program be-

comes clear upon the most cursory analysis. The pro-

gram divides potential recipients into two gronps—

pregnant women and nonpregnant persons. While the

first group is exclusively female, the second includes

members of both sexes. The fiscal and actuarial bene-

fits of the program thus accrue to members of both

sexes.

Two years later, in General Electric Co. v. Gilbert, 429

U.S. 125 (1976), the Court relied on Geduldiq’s reason-

ing in the course of rejecting a challenge based on Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 20000 et

seq., to a comparable private disability plan. The Court in

18

Gilbert interpreted Geduldig as having held that “an ex-

clusion of pregnancy from a disability-benefits plan pro-

viding general coverage is not gender-based discrimina-

tion at all.” 429 U.S. at 136. See also id. at 134-135.

Although Geduldig did not involve Section 1985(3),

the Court’s reasoning in that case is applicable here. In

fact, this Court’s analysis in Geduldig applies even more

forcefully in the abortion context. Here, as in Geduldig,

there are two relevant categories—persons involved in

the abortion process, and everyone else—and neither class

is exclusively female; each category includes both women

and men. The analysis in Geduldig therefore strongly

shows that petitioners’ demonstrations are attributable to

a factor other than gender-based animus, and, perhaps

not surprisingly, as discussed above the district court’s

factual findings confirm that hypothesis. In sum, just as

the insurance programs in Geduldig did not discriminate

on the basis of gender even though only women can be-

come pregnant, petitioners’ opposition to abortion is not

gender-based even though only women can have abor-

tions."

To be sure, Congress overruled General Electric Co. v.

Gilbert, supra, by adopting the Pregnancy Discrimina-

tion Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076,

4A different question would be presented if respondents proved

that petitioners directed their anti-abortion efforts specifically and

exclusively at women because petitioners held an invidiously dis-

criminatory animus against women as a class. Were that true, the

demonstrations put on by petitioners would be simply a pretext for

discriminating against women, and Geduldig v. Aiello, 417 U.S. at

496-497 n.20, indicates that such conduct would amount to gender

discrimination. Accord General Electric Co. v. Gilbert, 429 U.S. at

135-136. But respondents made no such allegation in this case; the

district court made no such finding; and none of the findings that

the district court did make would support a claim of pretext. In

fact, the district court expressly found that petitioners were sin-

cerely committed to protecting the fetus and did not find that

petitioners harbored any animosity toward women as such. In the

district court’s words: “It is indisputable that all [petitioners]

share a deep commitment to the goals of stopping the practice of

abortion and reversing its legalization.” Pet. App. 20a. Given that

finding, no claim of pretext can be made in this case.

19

which prohibits employment discrimination on the basis

of pregnancy. 42 U.S.C. 2000e(k) (defining discrimina-

tion “because of sex” and “on the basis of sex’* under

Title VII to include discrimination “because of or on the

basis of pregnancy, childbirth, or related medical condi-

tions’). See International Union, United Automobile,

Aerospace & Agric. Implement Workers of America V.

Johnson Controls, Inc., 111 S. Ct. 1196 (1991); New-

port News Shipbuilding & Dry Dock Co. v. EEOC, 462

U.S. 669 (1983). Congress has therefore drawn a line

for purposes of Title VII that differs from the one that

this Court drew for equal protection purposes in Gedul-

dig. For several reasons, however, the rationale of

Geduldig is still applicable in this context.

First, the Pregnancy Discrimination Act of 1978 by its

express terms did not modify Section 1985/3), which this

Court has understood to be aimed at the same kind of

invidious discrimination at which the Equal Protection

Clause is directed. See Griffin v. Breckenridge, 403 U.S.

at 102: Carpenters v. Scott, 463 U.S. at 829. Accord-

ingly, the decision in Geduldiq, 417 U.S. at 496-497 n.20,

is still directly relevant. Moreover, regardless of how the

Equal Protection Clause should be applied in other set-

tings, this case invo'ves abortion, which is critical to any

proper analysis. Even if the Pregnancy Discrimination

Act tells us that pregnancy-based decisions that adversely

affect women are discriminatory per se, there certainly

can be no doubt that opposition to abortion is not, with-

out more, gender-hased discrimination. The reason is

that “lalbortion is inherently different from other medi-

cal procedures. hecause no other procedure involves the

purposeful terminetion of a potential life.” Harris v.

McRae, 448 U.S. 297, 325 (1980). The Pregnancy Dis-

crimination Act itself recognizes that point, because it

does not generally compel employers to subsidize abor-

tions for their female employees. 42 U.S.C. 2000e(k)

(“This subsection shall not require an employer to pay

for health insurance benefits for abortion, except where

the life of the mother would be endangered if the fetus

20

were carried to term, or except where medical complica-

tions have arisen from an abortion * * *.”).

There are more interests at stake in the abortion deci-

sion than those of the pregnant woman. The govern-

ment has a legitimate interest in pretecting both the

unborn child and the health of the mother, Harris v.

McRae, 448 U.S. at 324-325; Roe v. Wade, 410 U.S. 113,

162, 164-165 (1973); the parents of a pregnant minor

have a valid interest in participating in their daughter’s

decision whether to carry her pregnancy to term, Hodq-

son V. Minnesota, 110 S. Ct. 2926 (1990); and the father

of the child has a personal interest in the pregnant

woman’s decision. Thus, unlike the condition of being

pregnant, the “right” to have an abortion is not a fact

that is specific to one gender. Instead, it is a legal right

as to which the law can properly assign different inter-

ests to various parties.

4. Finally, there can be no serious argument that the

42nd Congress, which passed the Ku Klux Klan Act of

1871, would have believed that Section 1985/3) could be

used to obtain damages for actions like those challenged

here. The abortion of a fetus after “quickening” was a

crime at common law, and state laws condemning or

limiting abortion were common when that Act was

adopted. In 1871, 28 of 37 States and 8 Territories had

such laws. Roe v. Wade, 410 U.S. at 132-136: id. at 174-

176 & n.1 (Rehnquist, J., dissenting). Under oe

f

cumstances, it is safe to say that “the constructioff o

the statute adopted by the Court of Appeals ‘would have

amazed the legislators who voted for it.’” Great Amer-

ican Federal Savings & Loan Ass’n Vv. Novotny, 442 U.S.

at 385 n.7 (Stevens, J., concurring) (citation omitted).

C. Defining The Category As “Women Seeking Abor-

tions” Does Not Further The Correct Analysis Un-

der Section 1985(3)

The district court’s opinion also could be read as hold-

ing that the class of “women seeking abortions” is a pro-

tected class under Section 1985/3). Pet. App. 29a

21

(“‘{ Respondents’] members and patients constitute a subset

of a gender-based class meeting these requirements [of

Griffin|.”). Other courts have also defined the protected

class in that manner.'® That description of the class of

individuals affected by petitioners’ anti-abortion demon-

strations, however, does not further analysis of the Sec-

tion 1985/3) question in this case.

If a Section 1985(3) class could be defined by what its

members do rather than by who its members are, as the

’ district court concluded, a plaintiff could always (and

easily) allege that he is a member of a class protected by

Section 1985(3) merely by claiming that he belongs to

a “class of persons who seek to engage in some action

that the defendants have combined to resist through

tortious means.” For example, animal rights advocates

could become a class protected by Section 1985(3) by

defining themselves as “individuals who seek to prevent

animal cruelty.” Likewise, female military personnel

could bring themselves under the protection of Section

1985(3) merely by defining themselves members of a

subclass of “women who seek to participate in combat.”

No material difference exists between the hypothetical

classes mentioned above and the class recognized by the

district court of “women seeking abortions.” A class of

“women” describes a group with an immutable charac-

teristic, but a class of “women seeking abortions” is de-

fined in part by reference to the actions of its members,

those who seek abortions. That definition is an insuffi-

cient basis for allowing a person to obtain relief under

Section 1985/3). This Court has determined that a class

may not be defined simply by reference to the fact that

its members are victims of a conspiracy or hold beliefs

that differ from ones held by the co-conspirators. Car-

penters Vv. Scott, 463 U.S. at 834-835. See Roe v. Abor-

15 See, e.g., Cousins V. Terry, 721 F. Supp. 426, 430 (N.D.N-Y.

1989); Portland Feminist Women’s Health Center v. Advocates for

Life, Inc., 712 F. Supp. at 168; Roe v. Operation Rescue, 710 F.

Supp. at 581. Contra National Abortion Fed'n Vv. Operation Rescue,

721 F. Supp. at 1171-1172.

22

tion Abolition Society, 811 F.2d 931 (5th Cir.), cert.

denied, 484 U.S. 848 (1987). The Court wrote in Car-

penters V. Scott, 463 U.S. at 850 (citation omitted), that

“the intended victims must be victims not because of any

personal malice the conspirators have toward them, but

because of their membership in or affiliation with a par-

ticular class. Moreover, the class must exist independently

of the defendants’ actions; that is, it cannot be defined

simply as the group of victims of the tortious act.” The

approach endorsed below, however, allows a plaintiff to

circumvent that rule by alleging, not that she is the vic-

tim of the defendant’s tortious acts, but that she engaged

in conduct that (coincidentally) caused her to fall vic-

tim to the defendant’s tort.

Petitioners’ opposition to abortion in this respect re-

sembles the class rejected in Carpenters vy. Scott: work-

ers who refused to join a union. 463 U.S. at 839. That

category, like the class of “women seeking abortions” as-

serted here, was defined by nothing more than a mutual

desire to exercise a legal right, rather than an immutable

characteristic, such as race. To permit such a “class” to

invoke Section 1985(3) clearly would reduce the class-

based animus requirement adopted in Grijfin and reaf-

firmed in Carpenters vy. Scott to nothing more than a

rule of artful pleading, and in the process would make

Section 1985(3) a “general federal tort law,” contrary to

that statute’s language, purpose, and history. See Car-

penters V. Scott, 463 U.S. at 834-836; Griffin v. Breck-

enridge, 403 U.S, at 102.

In sum, defining the class as “women seeking abor-

tions” does not further the analysis, since petitioners

conduct demonstrations for the purpose of stopping clin-

ies from performing abortions, not to injure women be-

cause of their gender. Even if women are a class pro-

tected by Section 1985/3), defining the releyaptuelass in

terms of an activity in which women alone/can engage

does not prove that petitioners’ intent is invidious. The

fact remains that abortion is a medical procedure that

fits into a category all by itself, and it is for the pur-

pose of bringing that singular procedure to a halt that

petitioners hold their demonstrations. That intent does

not satisfy the animus requirement of Griffin and Car-

penters V. Scott.

Il. OBSTRUCTING ACCESS TO A MEDICAL FACIL-

ITY DOES NOT WITHOUT MORE DEPRIVE OUT-

OF-STATE PATIENTS OF THE CONSTITUTIONAL

RIGHT OF INTERSTATE TRAVEL

A. The Right To Travel Interstate Is Not Violated In

The Absence Of Proof That The Defendant Has

Purposefully Discriminated Against Persons Who

Travel Interstate

1. In Griffin v. Breckenridge, this Court ruled that the

right to travel interstate—what the Court there termed

“the ‘right to pass freely from State to State’ "—was pro-

ected by the Constitution. 403 U.S. at 106, quoting

Twining V. New Jersey, 211 U.S. 78, 97 (1908). Accord-

ing to Griffin, this Court’s decisions have “firmly estab-

lished that the right of interstate travel is constitution-

ally protected,” that this right “does not necessarily rest

on the Fourteenth Amendment,” -and that it “is assert-

able against private as well as governmental interfer-

ence.” 403 U.S. at 105."° Finally, Griffin also concluded

'* Griffin's statement that the right to travel interstate “does not

necessarily rest on the Fourteenth Amendment,” 403 U.S. at 105.

understates the uncertainty in this Court's decisions about the

source of this constitutional right. Various decisions have located

this rig!’ ‘n the Privileges and Immunities Clause of Art. IV, § 2,

see Corfield Vv. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823)

(No, 3,230) (Washington, J., Circuit Justice) ; Crandall v. Nevada.

73 U.S. (6 Wall.) 35, 43-49 (1867); Paul v. Virginie, 75 U.S. (8

Wall.) 168, 180 (1869); Slaughter-House Cases, 83 U.S. (16 Wall.)

36, 79 (1873); Twining Vv. New Jersey, 211 U.S. 78, 97 (1908):

Zobel V. Williams, 457 U.S. 55, 78-81 (1982) (O'Connor, J., con-

curring in the judgment); Attorney General v. Soto-Lopez, 476

U.S. 898, 920 (1986) (O'Connor, J., dissenting) ; the Privileges and

Immunities Clause of the Fourteenth Amendment, see Edwards v.

California, 314 U.S. 160, 177, 181-182 (1941) (Douglas and Jackson,

JJ., concurring); the Commerce Clause of Art. I, § 8, Cl. 3, see

24

that the right to travel interstate “is within the power

of Congress to protect by appropriate legislation.” Jd.

at 106, citing, inter alia, United States v. Guest, 383

U.S. 745, 759 (1966).

The district court held that petitioners’ demonstrations

violate the rights of women to cross state lines in order

to obtain abortions in the Washington, D.C., area, Pet.

App. 30a, and the court of appeals affirmed that holding,

id. at 8a. Significantly, however, there is no factual find-

ing below that one of petitioners’ principal goals is di-

rectly to interfere with respondents’ right to travel inter-

state, or that interfering with respondents’ right to travel

interstate is a conscious part of petitioners’ strategy of

opposing abortion. Nor did the courts below conclude

that petitioners’ actions in any way discriminated

against out-of-state residents.

By finding a violation of the right to travel interstate

in the absence of any of the above elements, the courts

below expanded that right beyond anything previously

recognized in this Court’s decisions. Most of this Court's

The Passenger Cases, 48 U.S. (7 How.) 283 (1849); Crandall v.

Nevada, 73 U.S. (6 Wall.) at 49 (opinion of Clifford, J.) ; Edwards

v. California, 314 U.S. 160 (1941); the Due Process Clauses of the

Fifth and Fourteenth Amendments, see Kent v. Dulles, 357 U.S. 116,

127 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505-506

(1964); Shapiro v. Thompson, 394 U.S. 618, 671 (1969) (Harlan, J.

dissenting) ; cf. Califano Vv. Aznavorian, 439 U.S. 170, 176 (1978);

Haig Vv. Agee, 453 U.S. 280, 306-307 (1981); and the Equal Protec-

tion Clause of the Fourteenth Amendment, see Zobel v. Williams,

457 U.S. at 60 n.6; Hooper v. Bernalillo County Assessor, 472 U.S.

612, 618 n.6 (1985). See generally Shapiro v. Thompson, 394 U.S.

at 630 n.8; id. at 666 (Harlan, J., dissenting); United States v.

Guest, 383 U.S. at 762-770 (opinion of Harlan, J.). See Attorney

General V. Soto-Lopez, 476 U.S. at 902 (“The textual source of the

constitutional right to travel, or, more precisely, the right of free

interstate migration * * * has proved elusive.”); Zobel v. Williams,

457 US. at 60 n.6 (“The right te travel and to move from one

state to another has long been accepted, yet both the nature and

the source of that right have remained obscure.”). In sum and in

truth, to borrow a metaphor from Judge Friendly, the constitutional

right to travel is a legal Lohengrin: no one knows from whence it

came. Cf. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).

recent interstate travel cases “have dealt with state laws

that, by classifying residents according to the time they

established residence, resulted in the unequal distribu-

tion of rights and benefits among otherwise qualified

bona fide residents.” Attorney General v. Soto-Lopez,

476 U.S. 898, 903 (1986) (plurality opinion), citing

Hooper v. Bernalillo County Assessor, 472 U.S. 612

(1985); Zobel v. Williams, 457 U.S. 55 (1982): Sosna

Vv. lowa, 419 U.S. 393 (1975); Memorial Hospital v.

Maricopa County, 415 U.S. 250 (1974); Dunn v. Blum-

stein, 405 U.S. 330 (1972); Shapiro v. Thompson, 394

U.S. 618 (1969). Yet as noted above, respondents did

not allege that petitioners’ activities somehow classify

women seeking abortions according to their residence, or

result in the unequal] distribution of abortions performed

in and among the various States represented in the Dis-

trict of Columbia metropolitan area.

In the absence of discrimination against out-of-state

residents, this Court has found a violation of the right

of interstate travel only when it was proven that a de-

fendant intended to violate that right as one of his prin-

cipal goals. For example, the Court in Griffin v. Breck-

enridge, 403 U.S. at 106 (emphasis added}, allowed

plaintiffs to take their interstate travel claim to trial

because it was open for them to prove at trial that “their

federal right to travel interstate was one of the rights

meant to be discriminatorily 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.”

Similarly, in United States v. Guest, supra, this Court up-

held an indictment under 18 U.S.C. 241 that alleged a

'T 18 U.S.C. 241 generally tracks Section 1985/3). It provides:

If two or more persons conspire to injure, oppress, threaten,

or intimidate any inhabitant of any State, Territory, or Dis-

trict in the free exercise or enjoyment of any right or privilege

secured to him by the Constitution or laws of the United States,

or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on

the premises of another, with intent to prevent or hinder his

26

conspiracy to interfere with the right to travel. See 383

U.S. at 757. In so doing, the Court explained, id. at 760

‘emphasis added) :

[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.

Under 18 U.S.C. 241, as under Section 1985/3), an effect

on individuals travelling interstate does not suffice to

state a claim based on interference with the right to

travel interstate."

It is easy to understand why the Court has been care-

ful to limit the right to interstate travel in the above

manner. If that right encompassed any activity that had

any effect on interstate travel, almost every public or

private action could be transformed into a violation of

the federal constitutional right. For example, a health

code inspector and restaurant owner who conspire to close

a competitor’s restaurant allegedly for health code viola-

tions, or two arsonists who conspire to destroy a restau-

rant, evidently would be trenching on the right to travel

interstate, because they would have made it impossible

for out-of-state customers to enter a State to do business

free exercise or enjoyment of any right or privilege so secured—

They shall be fined not more than $10,000 or imprisoned not

more than ten years, or both; and if death results, they shall be

subject to imprisonment for any term of years or for life.

™ See also Shapiro v. Thompson, 394 U.S. at 629, 631 (“the pur-

pose of deterring the in-migration of indigents cannot serve as

justification for the classification created by the one-year waiting

peried, since that purpose is constitutionally impermissible.” ).

27

with the restaurant owner. Airline travelers would have

a constitutional cause of action for damages against air-

line companies each time two companies conspire to hike

their fares on interstate flights, since higher fares make

it more expensive and, hence, more difficult to travel in-

terstate. Similarly, lifeguards who go on strike in order

to close a summer beach resort violate the constitutional

rights of every person who would otherwise have traveled

across state lines to spend a vacation at the beach. The

potential for such claims is limitless. Cf. Wickerd v.

Filhurn, 317 U.S. 111 61942).

Although Griffin acknowledged that the actions of pri-

vate parties can give rise to a damages action under Sec-

tion 1985/3), it would be a mistake to equate the actions

of private parties with those of the State in all instances.

Cf. United Stetes v. Guest, 383 US. at 772 (Harlan, J.,

concurring in part and dissenting in part) (“There is a

difference in power between States and private groups

so great that analogies between the two tend to be mis-

leading. If the State obstructs free intercourse of goods,

people, or ideas, the bonds of the union are threatened;

if a private group effectively stops such communication,

there is at most a temporary breakdown of law and order,

to be remedied by the exercise of state authority or by

appropriate legislation.”) That is not to say that a plain-

tiff must prove he was in fact deterred from travelling

interstate, or that temporary deprivations are permissi-

ble. On the contrary, “even temporary deprivations of

very important benefits and rights can operate to penalize

migration.” Attorney General Vv. Soto-Lopez, 476 U.S. at

907 ‘plurality opinion), citing Shapiro, Memoriai Hos-

pitei Vv. Maricopa County, and Dunn, all of which involved

residency requirements. The point is that ordinary torts

should not be deemed to give rise to a constitutional claim

simply because they may have some effect on persons who

travel interstate.

2. The cases in which the Court has found a violation

of the right to travel in the abortion context are consist-

ent with the limitations that the Court has imposed on

that right elsewhere. For example, Doe v. Bolton, 410

U.S. 179 (1973), held invalid a Georgia law excepting

from the State’s general criminal abortion law abortions

performed on state residents. /d. at 184, 200. Because

the statute in Doe discriminated against out-of-state resi-

dents, that case, like Soto-Lopez, Hooper, Zobel and the

other cases cited above, involves the unequal distribution

of rights based on residency classifications.

In Bigelow v. Virginia, 421 U.S. 809 (1975), the Court

struck down under the First Amendment a Virginia stat-

ute prohibiting any person, by the sale or circulation

of any publication, to encourage the processing of an

abortion. The defendant in Bigelow was the managing

editor of a weekly newspaper that published, in Virginia,

a New York City organization’s advertisement that it

would arrange low-cost abortions in New York City. In

holding that law invalid, this Court stated that it was

lawful for Virginia residents to take advantage of the

abortion services advertised in petitioner’s newspaper

because, among other reasons, Virginia could not “pre-

vent its residents from traveling to New York to obtain

[abortion] services or * * * prosecute them for going

there.” 421 U.S. at 824, citing United States v. Guest,

383 U.S. at 757-759; Shapiro v. Thompson, 394 U.S. at

629-631: Doe v. Bolton, 410 U.S. at 200. For a State

either to “prevent” its citizens from travelling to another

State, or to prosecute them after-the-fact for making

such a trip, would directly and purposefully interfere

with their right of interstate travel ir a manner similar

to what transpired in Griffin and Guest. Indeed, it is

particularly noteworthy that Bigelow focused on those

forms of interference with the right to travel interstate.

Theoretically, a State could interfere with a woman’s

right to travel interstate to obtain an abortion in any

number of indirect ways, such as by raising highway

taxes, thereby making it more expensive to travel. But

this Court steered far clear from recognizing such an

indirect, nonpurposeful violation of the right to travel,

perhaps because virtually any State or private action

could trigger a damages action were such claims allowed.

B. Petitioners’ Demonstrations Did Not Violate

Respondents’ Right To Travel Interstate

In this case, the district court did not find as a fact

that petitioners hold demonstrations for the principal

purpose of directly preventing respondents from exercis-

ing their right to travel interstate, nor did either court

below conclude that petitioners’ actions discriminated

against out-of-state residents. Petitioners’ actions, ac-

cording to the court’s below, were tortious under Virginia

law, but those actions did not constitute a violation of

respondents’ right to travel interstate under the federal

Constitution. Accordingly, the judgment below should

be set aside.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. Roperts, JR.

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

BARBARA L. HERWIG

LOWELL V. STURGILL, JR.

Attorneys

APRIL 1991

APPENDIX

STATUTE INVOLVED

42 U.S.C. 1985(3), which was originally enacted as

Section 2 of the Ku Klux Klan Act of 1871, ch. 22, 17

Stat. 13, provides as follows:

(3) Depriving persons of rights or privileges

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 con-

stituted 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, intim-

idation, or threat, any citizen who is lawfully en-

titled 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 Presi-

dent 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 exer-

cising 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.

(la)

DH wv. S. Government rriwrine orrice, 1991 282061 20482