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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 263

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0061%3A09. Public record. Not legal advice.