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SUPREME COURT OF THE UNITED STATES
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No. 90-985
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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
[January 13, 1993]

  Justice O'Connor, with whom Justice Blackmun joins,
dissenting.
  Petitioners act in organized groups to overwhelm local
police forces and physically blockade the entrances to
respondents' clinics with the purpose of preventing women
from exercising their legal rights.  Title 42 U. S. C. 1985-
(3) provides a federal remedy against private conspiracies
aimed at depriving any person or class of persons of the
``equal protection of the laws,'' or of ``equal privileges and
immunities under the laws.''  In my view, respondents'
injuries and petitioners' activities fall squarely within the
ambit of this statute.
                            I
  The Reconstruction Congress enacted the Civil Rights Act
of 1871, also known as the Ku Klux Act (Act), 17 Stat. 13,
to combat the chaos that paralyzed the post-War South.
Wilson v. Garcia, 471 U. S. 261, 276-279 (1985); Briscoe v.
LaHue, 460 U. S. 325, 336-339 (1983).  Section 2 of the Act
extended the protection of federal courts to those who
effectively were prevented from exercising their civil rights
by the threat of mob violence.  Although the immediate
purpose of 1985(3) was to combat animosity against blacks
and their supporters, Carpenters v. Scott, 463 U. S. 825, 836
(1983), the language of the Act, like that of many Recon-

struction statutes, is more expansive than the historical
circumstances that inspired it.  The civil-remedy component
of 2, codified at 42 U. S. C. 1985(3), speaks in general
terms, and provides a federal cause of action to any person
injured or deprived of a legal right by
    ``two or more persons in any State or Territory [who]
    conspire or go in disguise on the highway or on the
    premises of another, [first] for the purpose of depriving,
    either directly or indirectly, any person or class of
    persons of the equal protection of the laws, or of equal
    privileges and immunities under the laws; or [second]
    for the purpose of preventing or hindering the consti-
    tuted authorities of any State or Territory from giving
    or securing to all persons within such State or Territo-
    ry the equal protection of the laws . . . .''
  The Court's approach to Reconstruction Era civil rights
statutes has been to ``accord [them] a sweep as broad as
[their] language.''  United States v. Price, 383 U. S. 787, 801
(1966); accord, Griffin v. Breckenridge, 403 U. S. 88, 97
(1971); Jones v. Alfred H. Mayer Co., 392 U. S. 409, 437
(1968).  Today, the Court does just the opposite, precluding
application of the statute to a situation that its language
clearly covers.  There is no dispute that petitioners have
``conspired'' through their concerted and unlawful activities.
The record shows that petitioners' ``purpose'' is ``directly'' to
``depriv[e]'' women of their ability to obtain the clinics'
services, see National Organization for Women v. Operation
Rescue, 726 F. Supp. 1483, 1488 (ED Va. 1989), as well as
``indirectly'' to infringe on their constitutional privilege to
travel interstate in seeking those services.  Id., at 1489.
The record also shows that petitioners accomplish their
goals by purposefully ``preventing or hindering'' local law
enforcement authorities from maintaining open access to
the clinics.  See ibid., and n. 4.  In sum, petitioners'
activities fit precisely within the language of both clauses
of 1985(3).
  Yet the Court holds otherwise, and it does so primarily on
the basis of an ``element'' of the 1985(3) cause of action
that does not appear on the face of the statute.  Adhering
adamantly to our choice of words in Griffin v. Breckenridge,
supra, the Court holds that petitioners did not exhibit a
``class-based, invidiously discriminatory animus'' against the
clinics or the women they serve.  I would not parse Griffin
so finely as to focus on that phrase to the exclusion of our
reasons for adopting it as an element of a 1985(3) civil
action.
                            A
  As the Court explained in Griffin, 1985(3)'s ``class-based
animus'' requirement is derived from the statute's legisla-
tive history.  That case recounted that 2 of the original
Civil Rights bill had proposed criminal punishment for
private individuals who conspired with intent -`to do any
act in violation of the rights, privileges, or immunities of
another person.'-  403 U. S., at 99-100 (quoting Cong.
Globe, 42d Cong., 1st Sess., App. 68 (1871)).  The bill was
amended to placate those who believed the proposed
language was too sweeping.  Id., at 100.  Accordingly, the
amendment narrowed the criminal provision to reach only
conspiracies that deprived ``any person or class of persons
of the equal protection of the laws, or of equal privileges
and immunities under the laws. . . .'' Cong. Globe, 42d
Cong., 1st Sess., at 477 (emphasis supplied).  The amend-
ment also added a civil remedy for those harmed by such
conspiracies, which is now codified at 1985(3).  Looking to
the ``congressional purpose'' the statute's legislative history
exhibited, the Court concluded that ``there must be some
racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action.  The
conspiracy, in other words, must aim at a deprivation of the
equal enjoyment of rights secured by the law to all.''
Griffin, 403 U. S., at 102 (footnotes omitted).
  Griffin's narrowing construction of 1985(3) was a
rational effort to honor the language of the statute without
providing a federal cause of action for ``all tortious, conspir-
atorial interferences with the right of others.''  Id., at 101.
The ``class-based animus'' requirement avoids the constitu-
tional difficulties of federalizing every crime or tort commit-
ted by two or more persons, while giving effect to the
enacting Congress' condemnation of private action against
individuals on account of their group affiliation.  Perhaps
the clearest expression of this intent is found in the
statement of Senator Edmunds, who managed the bill on
the floor of the Senate, when he explained to his colleagues
that Congress did not ``undertake in this bill to interfere
with what might be called a private conspiracy growing out
of a neighborhood feud . . . [but, if] it should appear that
this conspiracy was formed against this man because he
was a Democrat, if you please, or because he was a Catho-
lic, or because he was a Methodist, or because he was a
Vermonter, . . . then this section could reach it.''  Cong.
Globe, 42d Cong., 1st Sess., at 567.  Indeed, Senator
Edmunds' comment on the scope of 2 of the Act is illustra-
tive of a more general concern in the 42nd Congress for
extending federal protection to diverse classes nationwide.
See, e.g., id., at App. 153-154 (Rep. Garfield) (legislation
protects ``particular classes of citizens'' and ``certain classes
of individuals''); id., at App. 267 (Rep. Barry) (``white or
black, native or adopted citizens''); id., at App. 376 (Rep.
Lowe) (``all classes in all States; to persons of every com-
plexion and of whatever politics''); id., at App. 190 (Rep.
Buckley) (``yes, even women'').
  Griffin's requirement of class-based animus is a reason-
able shorthand description of the type of actions the 42d
Congress was attempting to address.  Beginning with
Carpenters v. Scott, 463 U. S. 825 (1983), however, that
shorthand description began to take on a life of its own.  In
that case, a majority of the Court held that conspiracies
motivated by bias toward others on account of their
economic views or activities did not constitute class-based
discrimination within the reach of the statute.  Id., at
837-839.  I agreed with the dissent, however, that ``[i]n-
stead of contemplating a list of actionable class traits, . . .
Congress had in mind a functional definition of the scope of
[1985(3)],'' and intended to ``provide a federal remedy for
all classes that seek to exercise their legal rights in unpro-
tected circumstances similar to those of the victims of Klan
violence.''  Id., at 851 (Blackmun, J., dissenting) (emphasis
deleted).  Accordingly, I would have found that 1985(3)
provided a remedy to nonunion employees injured by mob
violence in a ``self-professed union town'' whose residents
resented nonunion activities.  Id., at 854.
  For the same reason, I would find in this case that the
statute covers petitioners' conspiracy against the clinics and
their clients.  Like the Klan conspiracies Congress tried to
reach in enacting 1985(3), ``[p]etitioners intended to hinder
a particular group in the exercise of their legal rights
because of their membership in a specific class.''  Ibid.  The
controversy associated with the exercise of those rights,
although legitimate, makes the clinics and the women they
serve especially vulnerable to the threat of mob violence.
The women seeking the clinics' services are not simply ``the
group of victims of the tortious action,'' id., at 850; as was
the case in Carpenters, petitioners' intended targets are
clearly identifiable-by virtue of their affiliation and
activities-before any tortious action occurs.
                            B
  Even if I had I not dissented in Carpenters, I would still
find in today's case that 1985(3) reaches conspiracies
targeted at a gender-based class and that petitioners'
actions fall within that category.  I agree with Justice
Stevens that ``[t]he text of the statute provides no basis for
excluding from its coverage any cognizable class of persons
who are entitled to the equal protection of the laws.''  Ante,
at 13 (dissenting opinion).  At the very least, the classes
protected by 1985(3) must encompass those classifications
that we have determined merit a heightened scrutiny of
state action under the Equal Protection Clause of the
Fourteenth Amendment.  Classifications based on gender
fall within that narrow category of protected classes.  E.g.,
Mississippi Univ. for Women v. Hogan, 458 U. S. 718,
723-726 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976).
Not surprisingly, the seven federal courts of appeals to have
addressed the question have all reached the conclusion that
the class of ``women'' falls within the protection of the
statute.  Stathos v. Bowden, 728 F. 2d 15, 20 (CA1 1984);
New York State National Organization for Women v. Terry,
886 F. 2d 1339, 1359 (CA2 1989), cert. denied, 495 U. S.
947 (1990); Novotny v. Great American Fed. Sav. & Loan
Assn., 584 F. 2d 1235, 1244 (CA3 1978) (en banc), vacated
on other grounds, 442 U. S. 366 (1979); National Organiza-
tion for Women v. Operation Rescue, 914 F. 2d 582, 585
(CA4 1990); Volk v. Coler, 845 F. 2d 1422, 1434 (CA7 1988);
Conroy v. Conroy, 575 F. 2d 175, 177 (CA8 1978); Life Ins.
Co. of North America v. Reichardt, 591 F. 2d 499, 505 (CA9
1979).  As Justice White has observed, ``[i]t is clear that
sex discrimination may be sufficiently invidious to come
within the prohibition of 1985(3).''  Great American Fed.
Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 389, n. 6
(1979) (dissenting opinion).
  If women are a protected class under 1985(3), and I
think they are, then the statute must reach conspiracies
whose motivation is directly related to characteristics
unique to that class.  The victims of petitioners' tortious
actions are linked by their ability to become pregnant and
by their ability to terminate their pregnancies, characteris-
tics unique to the class of women.  Petitioners' activities are
directly related to those class characteristics and therefore,
I believe, are appropriately described as class based within
the meaning of our holding in Griffin.
  Petitioners assert that, even if their activities are class
based, they are not motivated by any discriminatory animus
but only by their profound opposition to the practice of
abortion.  I do not doubt the sincerity of that opposition.
But in assessing the motivation behind petitioners' actions,
the sincerity of their opposition cannot surmount the
manner in which they have chosen to express it.  Petition-
ers are free to express their views in a variety of ways,
including lobbying, counseling, and disseminating informa-
tion.  Instead, they have chosen to target women seeking
abortions and to prevent them from exercising their equal
rights under law.  Even without relying on the federally
protected right to abortion, petitioners' activities infringe on
a number of state-protected interests, including the state
laws that make abortion legal, Va. Code Ann. 18.2-72,
18.2-73 (1988), and the state laws that protect against
force, intimidation, and violence, e.g., Va. Code Ann.
18.2-119 (Supp. 1992) (trespassing), 18.2-120 (1988)
(instigating trespass to prevent the rendering of services to
persons lawfully on the premises), 18.2-404 (obstructing
free passage of others), 18.2-499 (conspiring to injure
another in his business or profession).  It is undeniably
petitioners' purpose to target a protected class, on account
of their class characteristics, and to prevent them from the
equal enjoyment of these personal and property rights
under law.  The element of class-based discrimination that
Griffin read into 1985(3) should require no further
showing.
  I cannot agree with the Court that the use of unlawful
means to achieve one's goal ``is not relevant to [the] discus-
sion of animus.''  Ante, at 8.  To the contrary, the deliberate
decision to isolate members of a vulnerable group and
physically prevent them from conducting legitimate activi-
ties cannot be irrelevant in assessing motivation.  Cf.
Maher v. Roe, 432 U. S. 464, 475 (1977) (noting the ``basic
difference,'' in constitutional Equal Protection analysis,
between ``direct . . . interference with a protected activity''
and ``encouragement of an alternative activity'').  The clinics
at issue are lawful operations; the women who seek their
services do so lawfully.  In my opinion, petitioners' unlawful
conspiracy to prevent the clinics from serving those women,
who are targeted by petitioners by virtue of their class
characteristics, is a group-based, private deprivation of the
``equal protection of the laws'' within the reach of 1985(3).
  The Court finds an absence of discriminatory animus by
reference to our decisions construing the scope of the Equal
Protection Clause, and reinforces its conclusion by recourse
to the dictionary definition of the word ``invidious.''  See
ante, at 6-8.  The first step would be fitting if respondents
were challenging state action; they do not.  The second
would be proper if the word ``invidious'' appeared in the
statute we are construing; it does not.  As noted above,
Griffin's requirement of ``class-based, invidiously discrimi-
natory animus'' was a shorthand description of the congres-
sional purpose behind the legislation that became 1985(3).
Microscopic examination of the language we chose in Griffin
should not now substitute for giving effect to Congress'
intent in enacting the relevant legislative language, i.e.,
``that any violation of the right, the animus and effect of
which is to strike down the citizen, to the end that he [or
she] may not enjoy equality of rights as contrasted with . . .
other citizens' rights, shall be within the scope of the
remedies of this section.''  Cong. Globe, 42d Cong., 1st Sess.
478 (1871) (Rep. Shellabarger).
  Because 1985(3) is a statute that was designed to
address deprivations caused by private actors, the Court's
invocation of our cases construing the reach of the Equal
Protection Clause of the Fourteenth Amendment is mis-
placed.  The Court relies on Geduldig v. Aiello, 417 U. S.
484 (1974), in which we maintained that, for purposes of
the Fourteenth Amendment, ``not . . . every legislative
classification concerning pregnancy is a sex-based classifica-
tion.''  Id., at 496, n. 20.  But that case construed a constitu-
tional provision governing state action, which is far differ-
ent than determining the scope of a statute aimed at
rectifying harms inflicted by private actors.  In fact, in
stark contrast to our constitutional holding in Geduldig,
Congress has declared that, for purposes of interpreting a
more recent antidiscrimination statute, a classification
based on pregnancy is considered a classification ``on the
basis of sex.''  See Pregnancy Discrimination Act, Pub. L.
95-555, 92 Stat. 2076, codified at 42 U. S. C. 2000e(k);
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U. S. 669, 678 (1983).  Similarly, although we have deter-
mined that a successful constitutional challenge to a
regulation that disproportionately affects women must show
that the legislature ``selected or reaffirmed a particular
course of action at least in part `because of,' not merely `in
spite of,' its adverse effects upon an identifiable group,''
Personnel Administrator of Mass. v. Feeney, 442 U. S. 256,
279 (1979), Congress recently has made clear its position
that showing subjective intent to discriminate is not always
necessary to prove statutory discrimination.  See Civil
Rights Act of 1991, Pub. L. 102-166, 105(a), 105 Stat.
1074.
  In today's case, I see no reason to hold a 1985(3)
plaintiff to the constitutional standard of invidious discrimi-
nation that we have employed in our Fourteenth Amend-
ment jurisprudence.  To be sure, the language of that
Amendment's Equal Protection Clause and 1985(3) are
similar, and ``[a] century of Fourteenth Amendment
adjudication has . . . made it understandably difficult to
conceive of what might constitute a deprivation of the equal
protection of the laws by private persons.''  Griffin, 403
U. S., at 97.  The Court resolves that difficulty by constru-
ing the two provisions in tandem, although there surely is
no requirement that we do so.  Cf. Romero v. International
Terminal Operating Co., 358 U. S. 354, 378-379 (1959) (ex-
plaining that statutory grant of ``arising under'' jurisdiction
need not mirror the reach of Art. III ``arising under''
jurisdiction).
  I would focus not on the similarities of the two provisions,
but on their differences.  The Equal Protection Clause
guarantees that no State shall ``deny to any person within
its jurisdiction the equal protection of the laws.''  U. S.
Const., Amdt. 14, 1 (emphasis added).  In my view,
1985(3) does not simply repeat that guarantee, but
provides a complement to it:  no private actor may conspire
with the purpose of ``depriving . . . any person or class of
persons of the equal protection of the laws.''  (Emphasis
added.)  Unlike ``deny,'' which connotes a withholding, the
word ``deprive'' indicates an intent to prevent private actors
from taking away what the State has seen fit to bestow.
  The distinction in choice of words is significant in light of
the interrelated objectives of the two provisions.  The
Fourteenth Amendment protects against state action, but
it ``erects no shield against merely private conduct, however
discriminatory or wrongful.''  Shelley v. Kraemer, 334 U. S.
1, 13 (1948).  Section 1985(3), by contrast, was ``meant to
reach private action.''  Griffin, supra, at 101.  Given that
difference in focus, I would not interpret ``discriminatory
animus'' under the statute to establish the same high
threshold that must be met before this Court will find that
a State has engaged in invidious discrimination in violation
of the Constitution.  As the 42d Congress well appreciated,
private actors acting in groups can be as devastating to the
exercise of civil rights as hostile state actors, and they pose
an even greater danger because they operate in an unregu-
lated realm divorced from the responsibilities and checking
functions of government.  In recognition of that danger, I
would hold that Griffin's element of class-based discrimina-
tion is met whenever private conspirators target their
actions at members of a protected class, by virtue of their
class characteristics, and deprive them of their equal
enjoyment of the rights accorded them under law.
  This case is not about abortion.  It most assuredly is not
about ``the disfavoring of abortions'' by state legislatures.
Ante, at 7 (discussing Maher v. Roe, 432 U. S. 464 (1977);
Harris v. McRae, 448 U. S. 297 (1980)).  Rather, this case
is about whether a private conspiracy to deprive members
of a protected class of legally protected interests gives rise
to a federal cause of action.  In my view, it does, because
that is precisely the sort of conduct that the 42d Congress
sought to address in the legislation now codified at 1985-
(3).  Our precedents construing the scope of gender discrimi-
nation under the Fourteenth Amendment should not
distract us from properly interpreting the scope of the
statutory remedy.
                           II
  The second reason the majority offers for reversing the
decision below is that petitioners' activities did not inten-
tionally deprive the clinics and their clients of a right
guaranteed against private impairment, a requirement that
the Court previously has grafted onto the first clause of
1985(3).  See Carpenters, 463 U. S., at 833.  I find it
unnecessary to address the merits of this argument,
however, as I am content to rest my analysis solely on the
basis that respondents are entitled to invoke the protections
of a federal court under the second clause of 1985(3).
Whereas the first clause of the statute speaks of conspira-
cies whose purpose is to ``depriv[e], either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws,'' the second clause address conspiracies
aimed at ``preventing or hindering the constituted authori-
ties of any State or Territory from giving or securing to all
persons within such State or Territory the equal protection
of the laws.''
  Respondents attempted to brief the issue for the Court in
a supplemental brief on reargument, but the effort was
rejected by a majority of the Court.  See 505 U. S. ___
(1992).  Although the issue is open to be decided on remand,
I agree with Justice Stevens that -[r]espondents have
unquestionably established a claim under the second clause
of 1985(3), the state hindrance provision.-  Ante, at 33
(dissenting opinion).  We have not previously had occasion
to consider the scope of the statute's ``prevention or hin-
drance'' provision, but it is clear that the second clause does
not require that actionable conspiracies be ``aimed at inter-
fering with rights'' that are ``protected against private, as
well as official, encroachment.'' Carpenters, supra, at 833.
Rather, it covers conspiracies aimed at obstructing local law
enforcement.  See Griffin, 403 U. S., at 98-99 (second
clause of 1985(3) prohibits -interference with state
officials-); Great American Fed. Sav. & Loan Assn. v.
Novotny, 442 U. S., at 384 (Stevens, J., concurring).  Like
Justice Stevens, I am satisfied by my review of the record
that the District Court made findings that adequately
support a conclusion that petitioners' activities are class
based and intentionally designed to impede local law
enforcement from securing ``the equal protection of the
laws'' to the clinics and the women they serve.  See 726 F.
Supp., at 1489, and n. 4, and 1496.
                           III
  In Griffin, this Court ``resurrect[ed]'' 1985(3) ``from its
interment under Collins v. Hardyman, 341 U. S. 651
(1951),'' to hold that the statute provided a federal remedy
for those injured by purely private conspiracies.  Novotny,
supra, at 395, n. 19 (White, J., dissenting).  That resurrec-
tion proved a false hope indeed.  The statute was intended
to provide a federal means of redress to the targets of
private conspiracies seeking to accomplish their political
and social goals through unlawful means.  Today the Court
takes yet another step in restricting the scope of the
statute, to the point where it now cannot be applied to a
modern-day paradigm of the situation the statute was
meant to address.  I respectfully dissent.