BRAY v. ALEXANDRIA CLINIC

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ORAL ARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

Chief Justice Rehnquist: We will hear argument on No. 90-985, Jayne Bray v. Alexandria Women's Health Clinic.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

In the Eastern District of Virginia, what would have been a State action for trespass or public nuisance has now become a Federal case through the application of the Ku Klux Klan Act of 1871 to the petitioner's antiabortion protest activities.

The U.S. District Court for the Eastern District of Virginia now monitors State obstruction actions.

This case should not be in Federal court.

The Fourth Circuit holding rests on two faulty legal premises.

First, that opposition to abortion constitutes invidious discrimination against women, and that petitioners' activities violate the respondents' constitutional right to interstate travel.

The interpretation of the lower courts goes a long way in making 1985(3) the general Federal tort law that this Court has long counselled against.

There is redress available, and that is in the circuit courts of Virginia, for trespass, for public nuisance.

And 12 State court of appeals have reviewed injunctions involving these type of activities.

All of those courts of appeal have approved the injunctions which prohibited trespass and blockades, and basically word for word, comma for comma, with regard to the same substantive issue as the Federal courts here.

And that is prohibiting trespass.

We think it is important to point out that the court operated under the assumption that opposition to abortion constitutes invidious discrimination against women.

This despite the court's finding of facts.

Judge Ellis said that it is indisputable that all the defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization.

He stated that the defendants and their followers hope to prevent abortion, to dissuade women from seeking the clinic's abortion services, and to impress upon members of society the moral righteousness and intensity of their anti-abortion views.

The court, however, comes to an illogical conclusion of law that those purposes constitute invidious discrimination against women.

Our position is that that statement and that conclusion is wrong, and the Fourth Circuit should be reversed.

The issue of the application of this act to the petitioner's activities has been reviewed by numerous Federal courts.

And quite frankly, most courts have applied the act.

But we think the mistake that the lower courts have made is applying the act to an activity that is not within the scope of this statute as it relates to classifications protected.

Certainly gender, in and of itself, could be and would be protected under this act.

But here, the class has been defined not by gender, but rather by an activity; seeking abortion.

There is no doubt that the opposition that the petitioners have in this case is not to women, but rather to the activity of abortion.

The court's findings of fact are detailed on that.

The court itself stated that the petitioners engaged in these activities to rescue fetuses.

That's what the court below said.

And the illogical conclusion that was made was that constituted some form of invidious discrimination against women.

Mr. Roberts: Is it your point that a group who perform a particular activity cannot qualify as a group for purposes of the invidious discrimination necessary?

Mr. Sekulow: Your Honor, yes.

Our point is that it doesn't focus on activity.

To be a violation within the scope of this act, it would have to be a violation of the... animus, if you will, would have to be, in the petitioner's mind, against the class for who they are, not on something they want to do.

And here, it was the activity of abortion--

Mr. Roberts: Why is that?

Why couldn't you oppose, let's say you have an animus against all people who oppose the... oppose the war in Kuwait, or who opposed World War II, or whatever, why isn't that a group?

Mr. Sekulow: --That's a group not defined by any mutable characteristics.

It's not a group defined as a class by who they are.

It's defining the class by something they want to do.

This Court, in Griffin, focused in on the animus that the petitioners' actions would have to be taken against the particular respondents because of who they are.

And I think the analogy could be if in fact you had a group of individuals that blocked a polling booth, if you will, because blacks were voting, and they didn't want blacks voting.

Well, there the animus is not against the activity of voting, it is against their race.

That would clearly fall within this statute.

Also here, in order for there to be a violation of--

Mr. Roberts: Well, suppose they're just interested in a particular candidate and they don't want to see that candidate win and they know blacks are going to support the candidate.

Their interest is to keep this candidate from being elected, so they block blacks from coming to the polls.

What result then?

Mr. Sekulow: --I think there it would still be focusing on the activity.

The animus would be at the activity.

Now if they--

Mr. Roberts: And therefore no liability under this statute, that's your submission?

Mr. Sekulow: --I would think in that case there would not be, although if they were letting whites in... and I think under your hypothetical that they would be.

Mr. Roberts: Well, not's play with the hypothetical too much.

But it seems to me that the law often recognizes that it can reach a necessary or a direct consequence.

And here the consequence of blocking the candidate, or in your case, blocking the access to the clinic, is to impact directly on the protected group.

Mr. Sekulow: If it is because of, in your hypothetical, who they are, in this case it would be black, they could be covered under the statute.

But in this case, the classification that the respondents have designated, and the court below, has been women seeking abortion.

And as the facts of this case establish, the opposition by the petitioners to the activity of abortion was not just aimed at women.

It was aimed at everybody involved in the entire abortion process.

These petitioners... yes, Your Honor.

Justice O'Connor: But of course your argument would... would affect racial classifications as well.

I mean, if there were a group trying to prevent integration of a public school, for example, and blocked access to the schools, by your argument, it wouldn't be covered.

Mr. Sekulow: No, I think it would be in that case, Your Honor, because the animus, Justice O'Connor, would be because they don't want, I would take it in that case, a particular racial group not in that school.

And here, it is the entire incident of abortion that is the motivating factor that animates these petitioners.

It is not men, it is not women, it is all involved.

Mr. Roberts: But Counsel, supposing you had a class of women, all of whom want abortions.

And assume they wore little pins or something so they could be readily identified.

And supposing you blockaded the polls and said, don't let any women in who wear those pins.

Would that be a class protected by the statute?

Mr. Sekulow: I don't think so, Your Honor, because it would not be motivated by women, it was because of their activity of voting.

Mr. Roberts: What in the statute, what language in the statute supports your... your argument?

Mr. Sekulow: I think the term that would support it best is where the statute says that the purpose of depriving that class and then the equal protection of laws, equal privileges, and immunities has been interpreted by this Court as to require that invidious class-based animus aimed at the class.

And here it is the purpose.

What is the purpose that animates these petitioners?

And it's not their opposition to women, it's their opposition to abortion.

Mr. Roberts: It says the purpose of preventing or hindering the constituted authorities from so forth and so on.

The purpose of preventing the people in the voting polls from letting them vote.

That's not within the statute.

Mr. Sekulow: Well, that's the second part of the statute.

This case has been brought on the first part of the statute.

But even under the hindrance clause, there still has to be an invidious discriminatory animus.

But in this case, this Court's already viewed... has viewed previously classifications based on pregnancy and has not come to the conclusion that those constitute discrimination against gender.

Now it's true that Congress and the public in the Pregnancy Discrimination Act, amended, if you will, but here is still, even in the PDA, an exemption which does not require employers to fund abortion-related insurance needs.

And I think that points to that Congress certainly was not acting with an invidious discriminatory animus in passing the exemption, the exception of PDA.

Mr. Roberts: Of course, Mr. Sekulow, it's sort of hard to parse the statute too closely, isn't it, because even the requirement for any class-based animus is not to be found in this statute, is it?

Mr. Sekulow: The statute is not clear.

The legislative history--

Mr. Roberts: If there's any person or class of persons, and we've rather made up the requirement that there has to be a class-based animus.

Mr. Sekulow: --I don't think it was made up by this Court.

I think that the words, for the purpose, if you take the context of the whole, for the purpose of depriving that class.

I think the... and then the equal privileges and immunities, that's what this Court, looking at in the legislative history... which I'm hesitant to bring up, but I will bring up... pointed to.

Justice Scalia: It just doesn't say that classes.

It says any person or class of persons.

Mr. Sekulow: Yes, but it also says, Justice Scalia, purpose.

And it also says the word, equal.

And here, if in fact, since women are the only ones that can have abortions, and that's the position that the respondents have taken, there has been no denial of equality.

Certainly in this case, where no one is permitted to get in.

This is not a situation where only women, black women can get in, or Hispanic women can get in, or some subclass.

This is a situation where no one is permitted.

It has broken up the class, if you will, not into women and men, but those involving the abortion process and those that are not.

And here, there's been no denial of equality.

And without a denial of equality, there cannot be a violation--

Justice O'Connor: Well, by that argument, just because a mob tries to prevent both blacks and whites from entering an integrated school, you would say the statute wouldn't cover it.

That's a very strange argument.

And I don't think it's consistent with this Court's precedence.

What if we were faced with an inquiry on the facts of this case about the applicability of this provision in section 1985, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within the State the equal protection?

Mr. Sekulow: --Our position, Your Honor, Justice O'Connor, would be that it would still would not apply because there still would have to be a class-based animus.

And if you look at the purpose, the purpose was not to hinder.

Justice O'Connor: Even though it doesn't say that at all.

Mr. Sekulow: That's correct.

This Court has interpreted in Griffin, and in Scott--

Justice O'Connor: Not that clause.

Mr. Sekulow: --No, not that clause, but the wording, equal protection of the laws, is the provision on which this Court based its determination that animus was present.

And here--

Mr. Roberts: If we disagreed with you, is there evidence in the record that this was the necessary purpose and effect of the boycott?

Mr. Sekulow: --Absolutely, Your Honor.

Mr. Roberts: So that you'd lose.

Mr. Sekulow: No, no.

Not that there was the... no, excuse me.

Not that it was, the purpose was to hinder the police.

The purpose is in the record, and that is to prevent abortion, the entrance of women getting in.

If the hindrance argument was just going to be that police couldn't have done other things, well then any time someone has a ticket for speeding down an expressway, they would be deemed, quote, hindering police and in violation--

Mr. Roberts: Again, I think you're confusing the ultimate purpose with the intermediate purpose, and I think both are covered by the statute.

Mr. Sekulow: --And even if they were, Your Honor, even if they were, the animus is not towards women, it's towards an activity.

And 1985(3), this section of the Ku Klux Klan Act, section 2, does not provide substantive relief itself.

It is strictly a remedial statute.

And the substantive right, which respondents have relied on, is the right to interstate travel.

And clearly there we believe that there's no violation of interstate travel.

There's no proof that the petitioners would have engaged in their activities to deny women their right to interstate travel.

They did not ask what State they were from, they blocked all.

Not for the purposes of interfering with interstate travel, but rather to prevent the activity of abortion.

Mr. Roberts: But they did want to interfere with the interstate travel of those patrons of the facility that were from out of State, didn't they?

Mr. Sekulow: That would have been a mere effect.

Mr. Roberts: Well, maybe it was, but they did want those people not to get to the facility.

Mr. Sekulow: Yes, they wanted those people--

Mr. Roberts: And they knew in advance at least some of them crossed the State line from the District or from Maryland, didn't they?

Mr. Sekulow: --That's not established here at all.

Mr. Roberts: You don't think they knew anybody came from outside of Virginia?

Mr. Sekulow: I will assume... we can make that assumption.

It would not change, in our opinion, Justice Stevens, the test of whether there was a violation of interstate travel.

The respondents have alleged that if there's any effect on interstate travel, no mere effect would constitute a violation.

I think this Court's interpretation of interstate travel has looked more towards purposeful.

And I think in Griffin, specifically, at the end of... towards the end of the opinion, the Court looked at the interstate travel right and saying while private action against interstate travel is actionable, would be a constituted... could constitute a violation, the fact that interstate travel was prevented was not enough to be a violation of interstate travel.

The Court said what... would go back now... when this Court remanded it back down for determination, did these particular people intend to violate these rights.

Did they mean to keep out-of-state people out solely?

And in Griffin, there was an allegation that there was a distinction with the right to travel as it related to--

Mr. Roberts: Why do you say solely?

Supposing you close an airport.

You could prove that 80 percent of the people were making just intrastate flights, you don't think that would come under interstate commerce, when 20 percent come from England or someplace?

Mr. Sekulow: --It depends on the purpose for which in fact--

Mr. Roberts: Then is it entirely on the subjective purpose of the people who close down the airport.

Mr. Sekulow: --I think it is a subjective test, Your Honor.

I think the animus has to be subjective.

But even if it was an objective test, in the hypothetical that Your Honor's given, if they closed it down because of what they considered a traffic problem, or something else, that's where you have to take a look at what is motivating, what is animating these particular individuals.

And in the right to travel context, in Griffin, the allegation in the complaint was that these particular black people were not being treated equally with white people as it relates to interstate travel.

And the Court, this Court said that we need to send it back down for further factual development, that maybe they did purposely mean to do this.

And perhaps that fact and other evidence would constitute a violation of interstate travel.

But in this context, there is no evidence at all.

It was a mere conclusion of law.

I'd like to reserve the rest of my time for rebuttal.

Mr. Roberts: May I ask you one question before you do?

Mr. Sekulow: Yes, Your Honor.

Mr. Roberts: I was looking at the complaint, and correct me if I'm wrong.

Is it true that all of the defendants are nonresidents of Virginia?

Mr. Sekulow: That all of the defendants are non-residents?

I believe that's correct, Your Honor.

Mr. Roberts: So there would have been diversity jurisdiction in this case in any event.

Wouldn't there?

Mr. Sekulow: I don't think there would have been because there was no allegation that there were damages in excess of $50,000.

Mr. Roberts: I see.

Thank you, Mr. Sekulow.

We'll hear now from you, Mr. Roberts.

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

This case is not about whether respondents have a remedy for petitioners' tortious conduct.

They do, in State court under State law.

This case is about whether they also have, in addition, a Federal civil rights remedy for that same conduct.

Mr. Roberts: They would have a Federal remedy, would they not, if they had made the $50,000 jurisdictional amount allegation?

Mr. Roberts: Well, they would... assuming--

Mr. Roberts: Assuming he knows what the compliance is.

Mr. Roberts: --It would have satisfied the jurisdictional limit, and then could have sued under State law under diversity.

Mr. Roberts: And there the findings are a violation of State law here, aren't there?

Mr. Roberts: There are those findings.

But they--

Mr. Roberts: And they could give the same remedy under State law, couldn't they?

Mr. Roberts: --Under State law.

But they would not have had a Federal remedy.

Mr. Roberts: The Federal court would have had a duty to do that.

Mr. Roberts: Yes, assuming that requirements of diversity were met.

They still would not have had a Federal civil rights remedy under section 1985(3).

The reason is that section 1985(3) is not a general cause of action for the deprivation of Federal rights.

For example, there is a Federal constitutional right to carry a picket sign on a public sidewalk.

If I come upon a picketer, and I don't think there should be such a First Amendment right, and I assault him, that interferes with his exercise of his constitutional rights.

But my conduct is a simple assault redressable under State law.

If I come upon a picketer and assault him because he's black, and I don't believe that blacks should have equal First Amendment rights, then my conduct would satisfy the class-based invidiously discriminatory animus requirement.

It would have been based in part on who that person was, not simply what he was doing.

Mr. Roberts: Mr. Roberts, in your hypothetical you talk about one person.

What if two or more persons engage in conduct that prevented somebody from carrying a picket sign?

Mr. Roberts: That would be a conspiracy to deprive that person of constitutional rights.

Mr. Roberts: And that would be covered, wouldn't it?

Mr. Roberts: That would not be covered.

Section 1985(3) is directed to the discriminatory deprivation of rights, not simply the deprivation of rights.

That was the change that Congress made from the original bill that was introduced to the one they enacted.

The original bill made it unlawful to do any act in violation of the rights, privileges, or immunities of another person.

It would cover the picketer example.

The amended act, the one that was passed, focused on the discriminatory deprivation of rights.

The deprivation of equal protection, equal privileges and immunities.

And that, as this Court explained in Griffin, introduced the class-based animus requirement.

Now respondents' basic submission is that opposition to abortion is the same as discrimination on the basis of gender.

That's wrong as a matter of law and logic.

As a matter of law, this Court rejected that line of reasoning in the Geduldig case.

There Justice Stewart, writing for the Court, explained that a classification based on pregnancy was not the same as a gender-based classification, even though only women could become pregnant.

Accepting respondents' submission that opposition to abortion is the same as discrimination on the basis of gender, because only women can have abortions, would require overruling the rationale of Geduldig.

As a matter of logic, for a conspiracy to seek to deprive persons of the equal protection of the laws or equal privileges and immunities, the conspirators must seek to deny to some what they would permit to others.

Mr. Roberts: Is Geduldig in tension with Johnson Controls?

Mr. Roberts: I think not, Your Honor.

Johnson Controls, in that case the basic problem was that fertile women were barred from certain jobs because of the danger exposure to lead would have to their offspring, while fertile men were not barred from those same jobs, even though it was shown that the same exposure could affect their offspring.

Johnson Controls, as was noted in the majority opinion, was a gender classification.

And therefore, it's fully consistent with Geduldig.

Mr. Roberts: In other words... all right.

Mr. Roberts: Here petitioners do not seek to deny to some what they would permit to others.

They seek to prohibit the practice of abortion all together.

Respondents, in their amici, bring up the analogy that opposition to women seeking abortions is just like a conspiracy against blacks seeking to vote.

If you examine the analogy closely, it breaks down.

In the conspiracy against blacks seeking to vote, what animates it is opposition to a group on the basis of race.

It is blacks that they do not want to vote.

It's not opposition to the activity of voting.

Here it is solely opposition to the activity of abortion.

As a matter of logic, you cannot deprive a class of equal protection or equal privileges and immunities with respect to a right that only that class can exercise.

You can certainly conspire to deprive them of that right, but it is not a denial of equal protection or equal privileges and immunities.

Respondents also have no cause of action under section 1985(3) because the right for which they seek a remedy, the constitutional right to travel, is not implicated in this case.

This Court has never found a violation of the right to travel in the absence of either discrimination between residents, on the one hand, and nonresidents, or newcomers, on the other, as in Doe v. Bolton, Shapiro v. Thompson, Dunn v. Blumstein, or an actual purpose to interfere with the right to travel as such, as in the Guest case.

Here, of course, petitioners' activities fall into neither of those categories.

They do not discriminate between residents and nonresidents in blocking access to the clinics.

And they do not seek to interfere with the constitutional right to travel as such.

They don't seek simply to keep out-of-staters from coming in for abortions.

That's an inaccurate description of the conspiracy in this case.

Respondents would find a violation of the constitutional right to travel based solely on two facts.

One, some of the patients at these clinics come from out of State, and two, petitioners blocked access to the clinics.

That unlimited vision of the right to travel would find a violation in every case, almost every case, for example, of a picket line, so long as some of the workers or customers were from out of State.

This Court has never accepted such an unlimited view.

Justice O'Connor: Mr. Roberts, if the evidence established that one of the purposes was to prevent or hinder local police from putting an end to the demonstration and the blockade, do you think that 1985(3) in that second clause would cover it?

Mr. Roberts: No, I don't, Your Honor.

First of all, no such allegation was made in the complaint.

Justice O'Connor: I said if that... if the facts established that.

Mr. Roberts: If the facts established that, I think that we would still be back to the class-based animus requirement.

The prevent and hinder clause has, just as the immediately preceding clause, which is the one at issue in this case, the requirement that it be a deprivation of equal protection.

This Court, in Griffin, interpreted that language in the clause at issue here to require the class-based invidiously discriminatory animus.

And I think the word equal should carry the same meaning in the second clause.

Particularly since it was added in the amendment process, just as the words equal were added in the immediately preceding clause.

To continue, there were no such findings in this case.

And I also think it would be a difficult question whether under the facts that were alleged, you prevent or hinder State authorities when you simply are arrested.

That's not preventing them from doing their job, that's allowing them to do their job.

And what the prevent and hinder clause was directed to were the classic case of lynching, where there is affirmative disruption and interference with the State authorities.

That's not alleged and has not been found here.

Mr. Roberts: Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?

Mr. Roberts: No, Your Honor, the issue doesn't even come up.

Mr. Roberts: Well, that hasn't prevented the Solicitor General from taking that position in prior cases.

Three or four of them in a row.

Is it because you you're relying on Doe against Bolton here?

Mr. Roberts: We are not relying on Doe against Bolton.

We distinguish Doe against Bolton.

I believe my brother is the one relying on it.

And we distinguish it because that was an affirmative case of discrimination--

Mr. Roberts: But you cited it a little while ago affirmatively.

Mr. Roberts: --I cited it for the proposition that this Court's right to travel cases have hinged on discrimination and between residents and nonresidents.

And that's not at issue here.

If, for example, as Justice O'Connor has explained, the right to travel is based on the privileges and immunities clause, then I think it becomes quite clear that it's not implicated.

That clause states, to paraphrase, that a citizen of State A, when he moves into State B, or travels into State B, must have all the privileges and immunities of a citizen of State B.

Mr. Roberts: Of course if your office prevailed in its suggestion that Roe against Wade be overruled, Doe against Bolton would go with it, will it not?

Mr. Roberts: I'm not sure, Your Honor.

Doe against Bolton is a discrimination case.

Roe against Wade is an affirmative right case.

I think that's a separate question.

The right to an abortion is not implicated here.

Neither of the lower courts relied on that ground alleged in the complaint.

They relied solely on the constitutional right to travel, which, as I've indicated, is not implicated in this case.

Mr. Roberts: It seems to me you've slipped a stitch here somewhere.

Mr. Roberts, did your answer to Justice O'Connor's question depend on the size of the conspiracy?

For example, if you had a conspiracy of two people, only two people went to the clinic, you could answer quite plausibly as you did that they certainly were not conspiring to preclude the police from arresting them because they were easily arrestable and were arrested.

If you have 2,000 who go to the clinic, and the point of the conspiracy is to act in this massive fashion, then isn't it more reasonable to analyze the conspiracy as, one, in effect, to preclude the enforcement of laws against trespass, against assault, and so on?

And wouldn't your answer be different if you consider the size?

Mr. Roberts: If I may, the answer would be the same, Your Honor, because regardless of the size of the conspiracy, the class-based animus requirement continues under the prevent and hinder clause.

And in this case there was simply no class-based animus, either under the first clause under which the respondents have relied, or the prevent or hinder clause.

Thank you.

Mr. Roberts: Thank you, Mr. Roberts.

Mr. Schafer, we'll hear now from you.

ORAL ARGUMENT OF JOHN H. SCHAFER ON BEHALF OF RESPONDENTS

Mr. Schafer: Mr. Justice, and may it please the Court:

The question posed in this case is whether or not a Federal court has jurisdiction to protect Federal rights when because of mob violence and mob action, local law enforcement authorities are unable to maintain law and order.

It is precisely the situation for which the statute was written.

The analogy to the facts of 1865 to '71, say, when this statute was written, are striking.

There, as here, you had conspiratorial mass action which was intended to and did frustrate the exercise of Federal rights.

Local law enforcement authorities--

Justice O'Connor: Mr. Schafer, was any reliance ever placed in the courts below by your clients on this second clause of section 1985, for the purpose of hindering or preventing the constituted authorities from securing all laws?

Mr. Schafer: --This case, Justice O'Connor, was tried 9 days after the complaint was filed.

And the complaint did not make a hinder or prevent claim.

The evidence then developed it.

In my judgment, that claim is good.

Although courts below have not made findings on them, the Court may want to remand for findings on it.

But the evidence established a hinder... in my judgment... a hinder and prevent claim.

Mr. Roberts: Mr. Schafer, your position is that that hinder claim does not require any class-based animus.

Mr. Schafer: No, I would say it does.

Mr. Roberts: Oh, it does.

Mr. Schafer: No, I agree with that.

I agree with that.

I would not consent that it doesn't... I think Griffin--

Mr. Roberts: Because otherwise, the question I was going to ask you, if it doesn't require class-based animus, then I suppose you would have had to apply that clause to the freedom riders who went to the South in massive numbers violating trespass laws in the South, making it impossible--

Mr. Schafer: --Yes.

Mr. Roberts: --You wouldn't assert that it would apply to something like that?

Mr. Schafer: As I read Griffin, I think the class-based animus is written into the statute by the equal protection and equal privileges and immunities clause.

And I think that the evidence, as I say, the odd thing in this case is that under the Federal rules, we could amend our complaint today to accommodate the finding... the facts that were developed in a Court below, and we don't even have to amend a complaint under the Federal rules to make that claim, because the Federal rules provide that if the evidence establishes a claim, the pleadings will be deemed to be amended to encompass that claim.

And I think that we do have that claim based on these facts.

And these facts are basically, as I'm sure the Court knows, that the tactics of these people are to frustrate law enforcement.

They don't announce in advance where they're going to set up their blockades of clinics, which clinics are going to be blockaded.

They announce the dates, but they don't announce where, and so local police and authorities don't know where.

And so suddenly at some medical clinic someplace, there are hundreds and hundreds of people early in the morning around, blockading, and preventing ingress and egress from the clinic.

Mr. Roberts: Well, Mr. Schafer, if section 1985 does extend to gender-based class animus, how can you pick out a subset of that class and say that's the class?

Mr. Schafer: We don't do that, Your Honor.

They keep saying we do that, but that's not what we do.

Our contention is simply this; that when you target a right of a class and attempt to take away that class' constitutional right, you are discriminating against that class, the entire class.

And the class here is not women seeking abortions as they keep arguing.

The class is not defined by an activity or by an idea, or anything else.

It's defined simply by the Constitution.

All women have this right.

These people want to destroy that right.

And the way they do it is target the women who are exercising the right.

But the losers, if they win, the losers are all women.

All women.

The right of all women is lost.

And it's just like--

Justice Scalia: Excuse me, but that's not true.

The losers are not all women.

Surely the doctors who want to make a living performing abortion are deprived of their right to engage in that specialty.

They are kept out of the clinics, as well as the women, are they not?

Mr. Schafer: --Yes.

Justice Scalia: And does it not violate a right of theirs, or does it?

Mr. Schafer: In my judgment, as Novotny shows, they have their own independent cause of action for violation of 1985(3).

Justice Scalia: I think that's right.

So it is not directed just against the rights of women.

Mr. Schafer: Well, the purpose, though, the whole effort is to take away the right to choose.

Not the right of physicians to practice medicine.

Justice Scalia: The right of women to choose to have an abortion, but likewise the right of a physician to choose to give an abortion.

I gather their animus against those who perform the abortion is the same as their animus against those who receive it.

Mr. Schafer: Well, yes, Your Honor, Justice Scalia, I'm not at all sure that the doctors have a constitutional right to practice medicine, this kind of medicine.

I don't really know.

But the right that these people are targeting is a woman's right.

They are trying to destroy a woman's right.

And when you do that, just like in Johnson Controls, when an employer discriminates in the terms and conditions of employment between women and men by saying to women who are capable of bearing children, you may not have certain jobs, that's a discrimination not against just them, it's a discrimination against all women.

And in Satty, when the employer says when you get pregnant, you're going to lose your seniority rights, that's not just a discrimination against those directly impacted by the discrimination, it's a discrimination against women.

Mr. Roberts: Mr. Schafer, I have two questions that your answer raises.

The first is if the doctors themselves and the doctors alone had brought action under the statute, I think you said a moment ago that they indeed would have a separate and independent cause of action to bring under this statute.

Is that your position?

Mr. Schafer: Well, I'm not sure they do.

Novotny suggested he had one because of a violation of a Federal right.

But here, he only... under the words of the statute, they have a cause of action if they are denied any right or privilege of a citizen of the United States, or if they suffer injury by their person or property.

And if they suffer injury by their person or property via a class-based discriminatory effort to destroy the abortion right, I suppose yes, they do.

I don't know why they wouldn't, offhand.

Mr. Roberts: In other words, you could put them in the same position as the Republicans who were referred to as being one of the class to be protected by the statute at the time it was passed.

Kind of an ancillary category which essentially gets its foot in the door by being ancillary to a primarily protected category.

Mr. Schafer: As I... certainly as I read the legislative history, that was the intent there, as you, I guess suggest.

And I do think that there's no... I don't see any readings in the words of the statute.

I don't see that if that action were brought that it would be subject to a motion to dismiss by matter of course of this case.

Mr. Roberts: I'm sorry.

My second question goes back to Mr. Roberts' answer with respect to the applicability of Johnson Controls.

His response was that the... I think was that the class at Johnson Controls was the class of those who were fertile, and I guess in the broad sense of being able, being capable of engaging in the reproductive act.

And the distinction was made between women in that category and men in that category.

Do you think that's a proper answer to your claim that Johnson supports you?

Mr. Schafer: I really don't.

I don't think the Court put any emphasis on that.

I just don't think... I think the Court's analysis of Johnson Controls was that when you take this right away from fertile women, it's a discrimination against women and there's absolutely no--

Mr. Roberts: Didn't the Court also point out that men were not required, in fact, to make this election that women were?

Mr. Schafer: --It had... as I recall the opinion, one sentence referred to that fact, and I just don't know what the underlying facts were as to whether there was grounds for a distinction drawn between men and women in terms of the possibility of injury to a child or not.

But certainly the Court's opinion overall placed absolutely no emphasis on that fact.

Mr. Roberts: Was Johnson Controls a statutory case or a constitutional case?

Mr. Schafer: It was a statutory case.

Mr. Roberts: Title VII?

Mr. Schafer: Title VII case, yes, as was Satty.

So that in order to make out our cause of action here, as this Court well knows as was stated in Griffin, we have to show that there were acts done pursuant to a conspiracy and that it was animated by an invidious discrimination.

As I've tried to say, that when you target a right of women, you target all women, and that's the invidious discrimination that we rely upon.

We have never had any mention of that... it's just as if, just like Griffin, the case in Griffin, when you targeted three African-Americans who were thought to have been working for civil rights for African-Americans, that was a discrimination against all African-Americans, when you targeted three of them.

Mr. Roberts: Mr. Schafer, the courts below didn't rely on... rely on the right to an abortion, but the right to interstate travel, as the Federal right or privilege that was taken away.

Mr. Schafer: Yes.

Mr. Roberts: What would be your response to the hypothetical that was given to opposing counsel, if there... I think by Justice Stevens... if there is picketing of an airport, let's assume the employees of an airport picket unlawfully, it's trespassory picketing or something, would they be suable under 1985(3)?

Mr. Schafer: You have to show class-based animus in there someplace or other.

Mr. Roberts: You would have to show class-based--

Mr. Schafer: Animus against some group.

Mr. Roberts: --Okay.

Mr. Schafer: And our position here is--

Mr. Roberts: They would not be liable simply because they know that some people's interstate travel will be affected.

Mr. Schafer: --I think if you put a barricade against an interstate highway, you're not violating 1985(3), no.

Mr. Roberts: Even if they do it to such a degree that the police cannot enforce the law?

Mr. Schafer: Yeah, I accept the Griffin holding that this statute, as they argue, does require us to show a class-based animus... class-based discrimination, not animus, discrimination.

And as I say, I think we've shown it here when we show that women are the ones impacted by... that women's right is the one that's targeted here, and when you try to take away that right, you're trying to take away a woman's right, and you are therefore discriminating against women, just as in Griffin when you tried to take away the civil rights of African-Americans, you were discriminating against African Americans, and you had a cause of action under 1985(3).

Any conspiracy that's animated by an invidious discrimination for the purpose of depriving equal protection of the law or equal privileges and immunities is actionable by anyone injured thereby or deprived of exercising any Federal right.

We have... I think of those, as we've seen, of all those Griffin issues, the only two that are really at issue here are the discriminatory class-based animus and the travel right.

It seems to me worth at least noting that this Court is not yet directly confirmed that women are a recognizable class under this statute.

Our position is that the class... whatever class means in 1985(3), at least it means persons identifiable by immutable characteristics.

Particularly those persons historically disadvantaged in our society.

That includes women.

We don't have to go, for purposes of this case, anything beyond that.

The Court in Novotny did assume without deciding that women are a class for purposes of this statute.

And the dissent in Scott, four Justices noted that gender-based discriminations would form a class for the purpose of this statute.

And all of the lower courts that have dealt with this issue and attempted to forecast this Court's finding have forecast that this Court would confirm that women are a class.

But that's a predicate issue that's not put in issue here.

It's not one of the questions posed in petition for certiorari.

But it is a question, I think, in order to at least affirm, the Court is going to have to address.

Now the Government, of course, has relied upon Geduldig to say that targeting women seeking abortions is not an invidiously discriminatory action.

And of course, our position is (a), our class is not just women seeking abortions, but all women; but (b), Geduldig and Gilbert are really distinguishable cases.

Mr. Roberts: Would you explain to me why the class is all women and not just women seeking abortion?

I must say I don't follow.

I don't quite follow that.

Mr. Schafer: Well, it's just that the effort here is to destroy the right to choose, to frustrate it, to prevent it being exercised, hopefully to eliminate it.

Now when you do that, you're directly targeting a right of women, precisely the same as those persons who accosted those African-Americans on the highway in Alabama and went after them because of civil rights.

Mr. Roberts: You could say you're depriving a right of human beings, too, if you want to go up to the next generality.

But the fact is the narrowest class affected is simply, is pregnant women, not all women.

Mr. Schafer: Today's pregnant women, but not tomorrow's.

We're talking about a right.

Mr. Roberts: Well, I think so as far as blocking the current entrance to the facility is concerned.

Mr. Schafer: Yeah, but the purpose of this whole effort is, of course, to deprive the right of all women, not just the women who happen to want an abortion on Thursday, November 8, 1969... 1989 in Falls Church, Virginia, but all women everywhere in this country.

And it's a woman's right.

I'm not sure I understand what Your Honor alludes to when he says higher right of all people.

This is a right to choose which is peculiar to women, of course, because of their reproductive differences.

But it's a woman's right that's being targeted.

And it seems to me that it's perfectly clear that when you target a woman's right, you're targeting women.

You're discriminating against women.

It doesn't matter that they profess their love and admiration for women, the effect of their acts, and the purposeful deliberate effect of their acts is to make ineffective a woman's constitutional right.

Now if that isn't discrimination against women, it's hard for me to--

This is a statute that's aimed at the protection of rights.

It doesn't legislate love or hate, or anything like that.

It legislates for the protection of rights.

It doesn't matter if we love the people who are targeted.

The plaintiffs in these cases don't have to prove a subjective state of mind as to why they did these things.

The plaintiffs simply have to prove that what they're trying to do is take away my rights and the effect of their action is to take away my rights.

Mr. Roberts: Could a 65-year old woman bring this case?

Mr. Schafer: She'd be a peculiar plaintiff to choose, certainly, but I don't know why not, I guess, representing... particularly representing all women.

But it's hard to see--

Mr. Roberts: I mean, you have to answer that way, I suppose.

Mr. Schafer: --Yeah, I think that the Court would say, I guess the Court would say a woman who has no possibility of exercising the right probably doesn't have standing to maintain a cause of action.

I don't know.

Mr. Roberts: So this isn't a discrimination against all women.

Mr. Schafer: Well, I think it is.

I don't see why that destroys the discrimination against all women, because one woman can't sue.

I mean, I suppose that the child right out of the womb can't sue, either, but again, it's a right that if lost that's going to impact her.

Mr. Roberts: Or she might be the biblical character Sarah, too.

[Laughter]

Mr. Schafer: Now, tracking Griffin and Scott, then we do rely on the Federal right of travel, many times identified by this Court as a right or privilege of United States citizenship.

This right of travel formed the basis of the Griffin cause of action and was endorsed in the Scott decision.

We track that in this case, and we more than tracked it.

Here, the comparisons with Griffin are quite stark in our favor.

And though, although counsel misrepresented to you, in my judgment, one of the holdings of Griffin, the fact is we do not have to prove an intent to destroy this right.

Griffin itself noted on the remand that among the things that the plaintiffs would have to prove on remand would be simply whether or not they intended to travel interstate.

Then the Court went on to say, and you could also prove that the defendants tried to prevent traveling interstate.

But one... it was a disjunctive sentence, and one element of the sentence was that if you... if you simply intended, if you prove you intended to travel interstate, you've established this right.

And that to me, makes a lot of sense because this is, as I say, a basic constitutional right.

It should not depend upon the plaintiff being able to prove a defendant's subjective state of mind as to whether or not he cared about interstate travel or he didn't care about interstate travel; the effect is there.

When the effect is to prevent interstate travel, or to make interstate travel useless, then it seems to me the travel right has been established.

And we've done that here.

Mr. Roberts: Don't you go beyond Griffin when you characterize one possible sufficient proposition that it would be enough to prove that the conspirators would render the travel useless?

Griffin didn't go that far, did it?

Didn't Griffin require a proof either that the travel as such would be prevented or that individuals would be precluded from associating with those who did travel interstate?

Mr. Schafer: Yes, I think that's right, Your Honor.

But it seems to me that proving that travel would be useless is even more persuasive, if you will, than simply proving that the plaintiff might want to go... travel interstate.

The facts in Griffin were simply... the allegation was they were just driving around on interstate highways to visit friends and to do errands.

And it seems to me where you have a deliberate course of action, the purpose of which is to make useless interstate travel, which, as I say... and that that travel is for the purpose, as opposed to Griffin, that travel is for the purpose of exercising a core constitutional right, the right to choose.

If interstate travel isn't protected there, it's hard for me to understand what substance the travel right has.

Mr. Roberts: Well, doesn't the answer lie in the fact that to the extent that interstate travel would be rendered useless, so would intrastate travel be rendered useless.

And Griffin, whether with precision or not, tried to center on the peculiarity of the inter, interstate travel and the right to exercise it.

Mr. Schafer: I'm not sure I understand Your Honor's comment.

But the fact that intrastate travel may or may not be impacted, it seems to me that's not relevant.

The Government's plain wrong when it says that you don't violate the travel right unless you discriminate against intra, interstate travelers.

There's nothing to suggest that in the case.

Certainly nothing in Griffin to suggest that.

In Doe... when I talk about frustrating travel by making the travel useless, I have in mind particularly Doe v. Bolton, where basically the Court said... it said in effect, it didn't say it in these words, but people could not travel to Georgia to exercise their right to choose in Georgia, and the Court... because Georgia wouldn't permit them to do so, and the Court said that's in violation of interstate travel.

That's an impact on interstate travel, which is unconstitutional.

And it seems to me the whole thinking there is that by the Georgia statute doing what it did, it just made that interstate travel useless, so nobody's going to engage in it.

And that's what I'm talking about when I say that travel that is useless, as travel would be here if these people were allowed these blockades, it just... it just is a violation of the travel right.

And I would like, before I forget it, I'd like to--

Mr. Roberts: Mr. Schafer, it isn't just that is a violation, it has to be for the purpose of depriving them of that privilege.

That has to be the purpose.

The purpose is to--

Mr. Schafer: --To deny equal protection of the laws, right?

Mr. Roberts: --For the purpose of the depriving, either directly or indirectly, any person under the equal protection, or of equal privileges and immunities under the laws.

Mr. Schafer: Yes, that's right.

Mr. Roberts: Now here we're talking about the privilege of interstate travel.

Mr. Schafer: Yeah, right.

Mr. Roberts: So it has to be for the purpose of depriving them of that privilege.

Is that not right?

Mr. Schafer: You can... one purpose here was to satisfy... the denial of equal protections is satisfied when you show a purpose to deny the right to choose, which is the other right denied here.

And that's the discriminatory... that is a discriminatory violation.

Now in this case, you can also, if you want to say that you also have to show a purpose to implicate travel.

I don't think you really should, but even if you do, we have findings here that these people did intend to prevent interstate travel.

And as I say, our showing here of purpose, and there was a substantial volume of interstate travel involved here... 30 percent of these patients come from outside the State.

These petitioners knew that.

And the Court said--

Mr. Roberts: Suppose I kill somebody who I know is on the way to the railroad station, and he's going to be, you know, going to another State.

Am I interfering with his right to interstate travel for the purpose of this provision?

I mean, I know for a sure thing that if I kill him he's not going to be able to take the train and go to the next State.

And he has a ticket in his pocket.

I know that the effect is going to be to prevent that travel.

Have I violated 1985(3)?

Mr. Schafer: --Is your purpose invidiously discriminatory?

I mean is he... is there... no, without that, certainly not.

Mr. Roberts: All right, let's assume it's invidiously discriminatory.

Suppose I kill him because he's black and I don't like blacks, and I kill him and also know that he has in his pocket a railroad ticket, and that I'm going to prevent him from going to another State.

Mr. Schafer: We've thought about that, and I think that, of course, it's far beyond this case, but I suppose that you probably do have... you probably have violated 1985(3).

I'm not sure about that.

I think you have.

Mr. Roberts: I think for the purpose of depriving him of the privilege of interstate travel.

Mr. Schafer: That's right.

Mr. Roberts: Well, I don't know what the words for the purpose mean.

I mean, language no longer means anything anymore if that was for the purpose of--

Mr. Schafer: We have a finding here... we have a purpose here... we have a finding of purpose.

I couldn't hear, I'm sorry.

Mr. Roberts: --I may be wrong on this, but isn't the finding that you rely on a finding of impact, i.e., a high percentage of people who come to this clinic traveled in interstate commerce and the defendants knew it.

Isn't that a finding about impact, rather than a finding about... certainly it's not a finding directly about purpose.

Do you have anything more than that?

Mr. Schafer: When the Court dealt with necessary purpose for purposes of 1983, it said in Monroe v. Pape that the only intent you need to show for violation of 1985(3), of 1983, I'm sorry, is that a man intends the natural consequences of his acts.

And if you think that you need a showing of purpose here, clearly you have that in this case.

Mr. Roberts: I think your answer to my question is yes.

What you are saying is the purpose finding is essentially an impact finding.

Mr. Schafer: Yes, I think that's right, yeah.

I wouldn't stand here and argue that these people care whether these people travel interstate or not.

I'm not arguing that.

It would be silly to argue that.

I have a very short time left.

I want to say one thing.

There's been a lot of talk from the other side that this is a State case and it belongs in a State court.

It belongs in the Federal court, in our judgment, (a), because as I've tried to say, there's a Federal right that's being attacked here to the injury of a discrete class of people.

But secondly, State law... sure there's a trespass action, but would a young lady trapped in a car, bleeding in a parking lot outside of a medical clinic, unable to get in because of this action, would she have a trespass action?

It's not her property that they're on.

What kind of an action does she have?

Does she have some sort of interference with contract relationships argument?

Pretty tenuous.

And who does she sue?

She doesn't know who's surrounding the car.

I think it's a very false premise to come in here and tell this Court that this is a mere State trespass action and it ought to go back to the State courts.

Because there's no... for a number of reasons, State courts cannot afford adequate relief here, one of which I just pointed out.

Mr. Roberts: Mr. Schafer, can I ask... I mean, the most important relief here, I suppose, and most significantly, was injunction.

What's the authority for the issuance of the injunction, since as I read 1985(3), it only says that the parties may have an action for the recovery of damages?

Mr. Schafer: I think 1343 is adequate support.

Mr. Roberts: You're relying on 1343?

Mr. Schafer: Yes, I am.

Mr. Roberts: Do you know of any other instance where there's a statute that specifically says in only an action for damages it's parlayed into an injunction?

Mr. Schafer: No, I can't cite one to Your Honor.

Of course 1343 just says in terms of all actions brought under the civil rights statutes, and this is one, 1985(3) is one, the court has jurisdiction to award both damages and equity relief.

And I don't frankly feel that it's necessary to look further.

Again, a few words on the adequacies of State action.

Federal injunctions, frankly, mean more than State injunctions.

Federal injunctions are supported by more weight, by more marshals, by more people willing to make them work.

We have amicus briefs here in this case where States are asking you to complement State enforcement activity with Federal enforcement activity.

This is an exercise of complementary federalism.

The States want Federal help.

Wichita showed that this summer.

And there's no, it's just fallacious in my judgment to suggest to this Court that a State court can afford the kind of relief and the kind of protection of Federal rights that only a Federal court can do under this statute.

If there's nothing further, thank you, Your Honor.

Mr. Roberts: Thank you, Mr. Schafer.

Mr. Sekulow, you have rebuttal.

You have 4 minutes remaining.

REBUTTAL ARGUMENT BY JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

Mr. Sekulow: Thank you, Mr. Chief Justice, and may it please the Court:

Just a few points.

With regard to the issue in Johnson Controls, the basis of the Court's opinion, or a significant portion of that opinion states that the bias in Johnson Control's policy is obvious.

Fertile men, but not fertile women are given a choice as to whether they wish to risk their reproductive health.

The Court went on further; first Johnson Control's policy classifies on the basis of gender and child-bearing capacity rather than fertility alone.

Respondent, and this is from the quote, does not seek to protect the unconceived children of all its employees.

The petitioners in this case, seek to protect all unborn children through their activities.

And the animus itself, or the motivation, is aimed at the entire process, all that involved with it.

With regard to the right to privacy, counsel, my brother in bar, submitted at trial that there is no State action that may stand or fall on it.

So the right to privacy claim, we think, is without merit.

With regard to the issue of the right to travel, as Justice Scalia has said, it has to be purposeful because the statute in and of itself says that the activities have to be engaged in for the purpose of depriving a class, here described as women seeking abortion, their constitutional right to interstate travel.

So the purpose has to be clear.

And my brother at bar conceded that there is in fact no purpose.

That is, they do not seek to find a difference between out-of-town people and in-town people.

The last thing I'd like to say, Your Honor--

Mr. Roberts: May I ask you a question?

Mr. Sekulow: --Yes, sir.

Mr. Roberts: And I'm not sure of the significance of it, but I notice one of the findings was that these rescues have been taking place in many places across the country and have been enjoined in New York, Pennsylvania, Washington, Connecticut, California, as well as the Washington metropolitan area.

Does that have any relevance to the interstate aspect?

Mr. Sekulow: I do not think so, Your Honor, because again, I think we have to look at what this Court has said, plus the statute itself requiring purposeful action.

And here it's clear there was not.

And as the findings of fact point out, it was Judge Ellis' determination that the activities, if they were to have taken place, of the petitioners, would have had an effect on interstate travel, not that there was a purposeful violation of the right to interstate travel.

Mr. Roberts: Do you think respondents can prevail in this case without relying on the interstate travel?

Mr. Sekulow: Do I think that respondents can prevail?

No, Your Honor.

Mr. Roberts: Why not?

Mr. Sekulow: Because their sole independent right that is at stake here is interstate travel.

Plus they... the interpretation respondents have given, Justice White, to the statute is pre the limiting amendment.

That is they've eliminated the requirement of denial of equality.

It's any constitutional action and that is not what is at stake here.

And with regard to the State action issue, the State claims, as Judge Ellis pointed out, a public nuisance can be brought by a private party in a state circuit court in Virginia, and in fact, they have been brought in Virginia circuit courts, and they have been issued.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

JAYNE BRAY, et al., Petitioners v. ALEXANDRIA WOMEN'S HEALTH CLINIC, et al.

No. 90-985

October 6, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

JAY ALAN SEKULOW, ESQ., Washington, D.C.; on behalf of the Petitioners.

JOHN G. ROBERTS, JR., ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners.

DEBORAH A. ELLIS, ESQ., New York, New York; on behalf of the Respondents.

PROCEEDINGS

10:00 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in number 90-985, Jayne Bray versus Alexandria Women's Health Clinic.

Mr. Sekulow.

ORAL REARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF THE PETITIONERS

MR. SEKULOW: Mr. Chief Justice, and may it please the Court:

Through the misapplication of section 2 of the Ku Klux Klan Act of 1871, the U.S. District Court for the Eastern District of Virginia now monitors State trespass action. It has been our position from the outset of this litigation that this case should not be in Federal court.

The Fourth Circuit holding rests on two faulty legal premises. First, an opposition to abortion constitutes invidious discrimination against women, and secondly, the district court further compounded its error by misapplying this Court's jurisprudence with regard to the constitutional right to interstate travel by finding that petitioners' conduct would have an effect on interstate travel and thereby purposely violating the right to interstate travel.

The Fourth Circuit's position goes a long way in making 1985(3) the general Federal tort law that this Court has long counseled against. There is redress available, and that is in the Virginia Commonwealth courts. In fact, the circuit court in Norfolk, Virginia has issued injunctions which prohibits blockades and prohibit trespass activity.

The law does offer redress. This is not a case where redress is unavailable. It is. State court injunctions whose provisions mirror those of the Federal court here in significant areas have been upheld in numerous State courts on appeal.

This is a case of statutory construction and statutory interpretation. The question presented is, does section 2 of the Ku Klux Klan Act of 1871 cover the petitioners' activities? Our position is that it does not, and the Fourth Circuit is wrong and should be reversed.

In order for there to be a violation of section 2 of the act, there must be established, as this Court held in Griffin, a class-based, invidiously discriminatory animus behind the conspirators' actions. Here, the class has been defined as women seeking abortion. Simply put, women seeking abortion is not a valid class.

A class should be defined by who people are, not something they would like to do or an activity they would like to engage in. Respondents' class theory converts any group seeking to engage in any activity or conduct into a class, again creating a general Federal tort law.

Both the district court and the Fourth Circuit Court of Appeals entered over a dozen specific findings of facts dealing with the motivation or purpose of the petitioners' activities; yet despite these specific factual findings, the lower court came to the illogical conclusion of law that opposition to abortion constitutes invidious class-based discrimination against women.

That proposition has already been rejected by this Court in finding that classifications based on pregnancies do not constitute, per se, violations of equal protection and do not constitute invidious discrimination. That was in Geduldig.

This is especially so here, since the record establishes clearly what motivates the petitioners' conduct, and that is their opposition to the activity of abortion. This is not a case where the petitioners are using their opposition of abortion as a pretext to some type of gender discrimination.

The petitioners did not engage in their conduct, or nor would have they engaged in their conduct because of its effect on women. It is because of their opposition to abortion that these petitioners are motivated. Petitioners simply do not engage in the type of activity and do not conduct their activities with the invidious discriminatory animus required by section 2 of the Ku Klux Klan Act of 1871.

As I said, there's redress available. This is not a case where redress has been unavailable. Petitioners have been the subject of State court injunctions in other parts of the country.

There's also an issue I think that's equally important here, and that is the scope of the protections under section 1985(3), which is section 2 of the act -- of the Ku Klux Klan Act. There was a limiting amendment drafted by Representative Willard. The purpose of it was to mark a boundary with regard to the overall scope of the act.

Concerned over possible creations of a general Federal tort law, the drafters of the limiting amendment required that there not just be a deprivation of a right, but there be a deprivation of equality, of equal privileges and immunities, or equal protection of the law.

Thus, for a denial to be actionable pursuant to the act, to be a conspiratorial objective, the conspirators must seek to permit to some what they deny to others. Here, there's been no denial of equality. The scope of the petitioners' protest affects all involved in the abortion process.

As this Court recognized in Novotny, section 2 of the Ku Klux Klan Act itself is a remedial provision. It provides a remedy in damages. The rights, privileges, and immunities that it protects are to be found elsewhere.

Here, the respondents have asserted that petitioners violated their constitutional right to interstate travel. They base this assertion on the theory that by simply being engaged in interstate travel and having that right affected by petitioners' conduct, that the petitioners thereby purposely violated the respondents' constitutional right to interstate travel.

That theory of the respondents would turn any potential automobile accident involving an out-of-State driver into an interstate travel claim, because it would have an effect on interstate travel, and I would point out that the Fourth Circuit in its findings of fact held that petitioners' activities, if they were to have been engaged in, would have had an effect on interstate travel. They did not ever find under a finding of fact that there was a purposeful violation of interstate travel.

Our position is that the Fourth Circuit and the district court greatly expanded this Court's jurisprudence with regard to interstate travel. First, this is not a case where the petitioners discriminated against in-State residence versus out-of-State residence concerning access to the abortion clinic. Respondents conceded this during the previous argument.

Secondly, this Court's cases in the plain language of the statute itself require that for there to be an interstate travel violation there has to be a purposeful deprivation of the right. The purpose, as found by the district court and affirmed by the Fourth Circuit Court of Appeals here was that the petitioners engaged in their activities in order to express their opposition to abortion, not -- no findings of fact that there was purposeful deprivations of the right to interstate travel.

In fact, as I said, the trial court itself only held that petitioners, if they were to have engaged in their activities, would have had only an effect on interstate travel. There is no finding that here there was a purposeful action taken in deprivation of the right.

It is important to note again that in drafting the legislation the 42nd Congress made the determination in the concept of the limiting amendment that they were going to look at the issue through the lens of motivation and not impact. As I said, the language of itself, the statute itself requires that there must be a purposeful violation of the interstate travel right.

The question in one sense would be, did the petitioners conduct their activities for the purpose of depriving respondents of their right to travel? The record below supports that they did not.

The trial court's detailed findings of fact establishes what the animus and motivation of Jayne Bray and the other petitioners -- yes, Justice Stevens.

QUESTION: May I just ask you one question? You said that there was no district court finding with regard to intent to interfere with travel. I have before me the finding that petitioners engaged in this conspiracy for the purpose, either directly or indirectly, of depriving women seeking abortions and related medical and counseling services of the right to travel.

MR. SEKULOW: The court --

QUESTION: Isn't that a finding of fact?

MR. SEKULOW: No. That was a conclusion of law. The finding of fact here states -- and it's on page 22(a) of the joint -- the petition's appendix -- states, rescue demonstrations -- paragraph 28 specifically. Rescue demonstrations, by blocking access to clinics, therefore have the effect of obstructing and interfering with interstate travel of these women. The test, however, is that there must be purposeful activity, that their aim must have been not a mere consequence of it, which is what the -- where the illogical conclusion of law took place here.

QUESTION: But the district judge did draw the inference and stated in his conclusions of law that that was the purpose.

MR. SEKULOW: Yes. However, our position is that his -- that Judge Ellis, that the district court's findings of fact clearly cut against that, Justice Stevens, because his specific finding on right to travel talks about effect, and there is a difference between purpose and effect.

1985(3), section 2 of the Ku Klux Klan Act, requires that there be a purposeful deprivation of the right, not an impact, and that's what the motivation -- the view of what the motivation has to be on. What is it that motivated these petitioners? Here, it was clearly their opposition to the activity of abortion.

Mr. Chief Justice, I'd like to reserve the rest of my time for rebuttal.

QUESTION: Very well, Mr. Sekulow. Mr. Roberts, we'll hear from you.

ORAL REARGUMENT OF JOHN ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

MR. ROBERTS: Thank you, Mr. Chief Justice, and may it please the Court:

The United States appears in this case not to defend petitioners' tortious conduct, but to defend the proper interpretation of section 1985(3). As this Court explained in Griffin, the language of that section covering conspiracies whose purpose is to deprive people of equal protection or equal privileges and immunities, means that the conspirators must be motivated by a, quote, class-based invidiously discriminatory animus, end quote.

If a group of conspirators assault someone carrying a picket sign because they don't believe there should be a First Amendment right to picket, they certainly are guilty of a tort and they interfere with that individual's exercise of constitutionally protected rights, but in no sense do they deprive him of equal protection or equal privileges and immunities simply because they assault him and not everyone else.

But if the conspirators come upon a picketer and assault him because he's black and they don't believe that blacks should have equal First Amendment rights, then they satisfy the class-based invidiously discriminatory animus requirement.

That is not what is going on here. Petitioners do not interfere with respondents' rights because respondents are women. Petitioners do what they do because they're opposed to an activity, the activity of abortion. They target their conspirators not because of who they are, but because of what they are doing. Respondents now seem to recognize this. In their brief on reargument they say that this is, quote, unlike the usual section 1985(3) case, end quote.

But it is not a section 1985(3) case at all, and the reason is that section 1985(3) is not concerned simply with the deprivation of Federal rights, however fundamental, however important. It is concerned with the discriminatory deprivation of Federal rights, and petitioners are perfectly nondiscriminatory, nondiscriminating, in their opposition to abortion.

Respondents' answer to this argument is that only women can exercise the right to an abortion, and therefore petitioners' antiabortion activities have a discriminatory impact on women. People intend the natural consequences of their acts, and therefore respondents argue, you can infer from the discriminatory impact that petitioners have a discriminatory purpose.

A few examples will show that the logic of that doesn't hold up. Consider, for example, an Indian tribe with exclusive fishing rights in a particular river. A group of ecologists get together who are opposed to fishing in the river, because they think it disturbs the ecology. They interfere with the Indians' rights.

The impact of their conspiracy is on a particular Indian group, but it would be quite illogical to infer from that they have any animus against Indians. They're opposed to fishing in the river, not Indians, even though only Indians can fish in the river. Petitioners are opposed to abortion, not women, even though only women can exercise the right to an abortion.

Another example. Suppose a group of men and women get together who are opposed to the draft and they interfere with registration. The direct impact of their conspiracy will be felt only by men, since only men are eligible for the draft. But, again, it would be quite wrong to infer from that impact that the conspirators have any animus against men. They're opposed to the draft, not men, even though only men are eligible for the draft.

This Court has, in fact, already rejected respondents' logic in the Geduldig case. There Justice Stewart, writing for the Court 3 years after he wrote for the Court in Griffin, explained that classifications based on pregnancy are not the same as gender discrimination, even though only women can become pregnant. Accepting respondents' argument that activities in opposition to abortion are the same as gender discrimination, because only women can have abortions, would require overruling the rationale of Geduldig.

The decision below should be reversed for an independent reason, the reason that petitioners did not act with the purpose of interfering with respondents' right to interstate travel. This is respondents' logic. One, petitioners' purpose is to block access to abortion clinics. Two, some of those seeking access to the abortion clinics come from out of State. Three, petitioners know this. And four, therefore petitioners' purpose is to interfere with people from out of State getting access to the abortion clinics.

That confuses purpose, which is what the statute requires in plain terms, with incidental effect, which is insufficient under the statute. For example, under respondents' logic, consider a typical picket line. The union's purpose is to keep the customers out of a particular establishment. Some of the customers are black. The union knows this.

Under respondents' logic, you would say that the union's purpose is to keep out black customers, but that's an inaccurate statement of their purpose, just as it is an inaccurate statement of petitioners' purpose to say that they keep people from -- they want to keep people from out of State from gaining access to the abortion clinics.

Last year respondents' counsel said it would be silly -- his word, silly -- to argue that the petitioners care whether the people come from out of State or not. But if the people don't -- if the petitioners don't care whether the people are from out of State or not, you cannot say that their purpose is to keep out of Staters from obtaining access to the abortion clinic.

This Court's decisions on the right to travel recognize this distinction. The Court has found that right implicated only when there has been discrimination between residents, on the one hand and nonresidents or newcomers on the other, as in Shapiro against Thompson, or Dunn v. Blumstein.

QUESTION: Mr. Roberts, was there discrimination in the Griffin case?

MR. ROBERTS: The allegations were that the -- part of the motivation of the conspirators were to keep out of State civil rights workers from traveling on the interstate highways. The Court did not articulate in that case what would satisfy a claim under the right to travel. It indicated a number of points that were open to the plaintiffs to prove on remand, and then said this evidence and other evidence might suffice to show a right to travel.

So it may be that they would have made a discrimination claim in that case -- in that case, making it to be like the Guest case, where the specific allegation was that there was a right to interfere with interstate travel as such.

Both because there is no class-based invidiously discriminatory animus in this case, and because petitioners did not interfere with the purpose of interfering with the right to travel, the decision below should be reversed.

Thank you.

QUESTION: Thank you, Mr. Roberts.

QUESTION: Counsel, may I just ask one question? Did the municipality here of Alexandria, or any State officials, make a submission to the district court that their own law enforcement authorities were being overwhelmed?

MR. ROBERTS: There is an amicus brief before this Court from the Falls Church community saying that their resources were inadequate to deal with this particular predicament.

QUESTION: Did the Falls Church municipality make any request of the Governor of the State of Virginia for assistance?

MR. ROBERTS: I'm not aware that there was any such -- such request.

QUESTION: And did the Governor make any assistance -- request to the Attorney General of the United States for assistance?

MR. ROBERTS: I'm not aware. This was done, of course, in an injunctive capacity, so there wasn't a particular incident to respond to. So there wouldn't have been any of those sorts of requests.

The ability, of course, of the Federal Government to respond to such a situation is dealt with under section 3 of the act, entirely independent of the section before the Court today.

Thank you.

QUESTION: Thank you, Mr. Roberts. Ms. Ellis, we'll hear now from you.

ORAL REARGUMENT OF DEBORAH A. ELLIS ON BEHALF OF RESPONDENTS

MS. ELLIS: Thank you, Mr. Chief Justice, and may it please the Court:

Like the black students in Little Rock in 1957 who faced angry mobs as they walked up to the entrance of integrated schools, the women in this case, many of whom came from other States to Falls Church, Virginia, faced angry, intimidating mobs who physically obstructed their freedom of movement, blocking streets, parking lots, entrances, and exits.

This case presents the Court with an issue that arises infrequently but is vitally important: whether Federal law -- Federal law prohibits a mob from nullifying the constitutional rights of a class.

Section 1985(3) was enacted, as Representative Shellabarger explained in 1871, to provide a remedy against conspirators who trampled into dust the newly acquired political rights of the freedmen. This Court's section 1985(3) jurisprudence has strived both to give effect to congressional intent and to avoid making the statute into a Federal tort law.

Far from being mere torts, the acts of petitioners here are part of a nationwide systematic conspiracy to use force to deny women in America the equal protection of the laws, to do precisely what Congress sought to prevent in enacting section 1985(3).

All of the four elements that this Court has required to make out a section 1985(3) claim were proved here --

QUESTION: Excuse me. Suppose the same thing were done to prevent unionization? I mean, suppose you have a right-to-work group that nationwide seeks to prevent unionization? Would -- that would fit the description you've just given. Would that be covered by this statute?

MS. ELLIS: Well, Your Honor, in Scott this Court held that that kind of class-based animus is not cognizable under 1985(3).

QUESTION: Well, then what you've just said is not enough for a violation of 1985(3). The mere fact that your --

MS. ELLIS: I'm sorry, Your Honor, in this Court --

QUESTION: In organized fashion you seek to prevent people from exercising a constitutional right is -- is not alone enough.

MS. ELLIS: I'm sorry, I misspoke, Your Honor. In Scott, this Court recognized that animus against union activities or economic classes are not sufficient to form a class under 1985(3). Here --

QUESTION: Yet that is a right, the right to organize.

MS. ELLIS: Okay, assuming that this Court has held that antiunion animus is sufficient to form a class, then I do believe that blocking people from an activity that only that group can engage in does suffice to prove class-based animus, especially when the right they seek to block is a constitutional right of a class, an important constitutional right that only that class has, and especially as in this case, when this Court recently recognized in Planned Parenthood v. Casey that that right is necessary in order for that class to be equal citizens.

In this case, the two elements of the conspiracy -- of section 1985(3) are not at issue, the conspiracy and the act in furtherance of the conspiracy. Although there's no dispute about those elements, I would like to note that the mob characteristics of this case are particularly important. Congress enacted section 1985(3), called the Ku Klux Klan Act, because it understood that mobs could deprive individuals of rights in a way that single -- single individuals cannot.

The petitioners here, who operate systematically in large groups nationwide, are a much closer analog to the Ku Klux Klan than the two conspirators that this Court recognized could violate section 1985(3) in Griffin, for example.

Because there's no dispute about the conspiracy in the act, I will focus on the other two elements, that the conspiracy be motivated by class-based animus, and here, that the independent right, the right to travel, be violated.

To begin with class-based animus, we must first show that women are a protected class, and indeed, neither the petitioners nor the Solicitor General dispute that women are a class under 1985(3). The broad text and legislative history of section 1985(3) dictate that conclusion.

Instead, petitioners and the Government argue that here only a subset of women are affected. That subset distinction is false. Discrimination usually occurs against the subset of a class that is exercising its rights. For example, those who blocked African-American citizens from entering integrated schools targeted only some citizens but demonstrated invidious racial animus against an entire class.

The requirement of class-based animus was created by this Court in Griffin v. Breckenridge in order to prevent section 1985(3) from becoming a Federal tort law. Animus should not be confused with personal malice or hostility, especially because much of discrimination against women throughout history has been benign.

More specifically, womens' reproductive capacity has served as the benign rationale to deny women a host of equal opportunities, as this Court has recognized many times, most recently in Johnson Controls and in Casey.

Respondents admit that there are two kinds of class-based animus. In most situations, the conspirators deny to the class a right that is available to all, but here there is class-based animus for a different reason: because petitioners engaged in unlawful behavior that denies a right that is available only to the class.

This case is a particularly strong example of class-based animus, as I was saying before, because a right blocked here has been judicially recognized to be indispensable for the equality of the class. If equal protection of the law means anything, it must encompass knowing behavior to take away a liberty right that only the protected class has.

In Casey, this Court recognized that abortion is a unique act, and that women must have control over their reproductive lives in order to be equal and autonomous citizens.

QUESTION: What -- let me go back to that statement, that it must cover an effort to take away a right that only the protected class has.

What do you do with the hypothetical that Mr. Roberts gave us of an Indian tribe that has only -- has exclusive fishing rights and ecologists seek to stop the fishing? That fits exactly the description you've just given us. This is the only class that has the rights, and you're seeking to prevent those rights from being exercised. How -- are you saying that, indeed, in Mr. Roberts' example, that would be a violation of this statute?

MS. ELLIS: I think that would show class-based animus --

QUESTION: It would.

MS. ELLIS: If -- yes, Your Honor, although I don't think that a ruling in this case would need to reach that precise conclusion, because in this case we're only asking the Court to recognize that class-based animus is present when a constitutional right is taken away. So --

QUESTION: But it seems to me you're fighting the hypothetical. The hypothetical is, ecologists want to protect fish. They don't care who's fishing.

MS. ELLIS: Uh-huh.

QUESTION: So you changed the hypothetical. If you stick with the hypothetical, then what's your answer?

MS. ELLIS: I'm sorry, Your Honor, I didn't mean to change the hypothetical. I do agree that --

QUESTION: I mean, because there's just -- it's common sense, we know there's no animus against Indians, so what result in that case?

MS. ELLIS: They are depriving Indians of a right that only that class has. Class-based animus would be present.

This Court has not required personal malice or hostility. For example, the segregationists were blocking the entrance to an integrated school, and doing that because they opposed the activity of integration, not because they opposed blacks as a class. I believe this Court would find class-based animus.

QUESTION: Well, that's -- it seems to me, that definition of animus is a legal fiction.

MS. ELLIS: I do not believe so, Your Honor. I believe that if a class has -- if there's a constitutional right that only that class has, that that must violate equal protection to take away that right.

Now, of course, in the fishing hypothetical, the class there is not exercising a constitutional right. They're exercising only an activity that that class wishes to engage in. This Court does not need to go that far in answering this case.

This case presents the question of a class such as women or African-American citizens trying to get into an integrated school exercising a fund -- an important constitutional right, and in this particular case, a constitutional right that the joint opinion in Casey recognized is crucial for women to be equal and autonomous citizens.

QUESTION: Of course, the school case is on the other end of the spectrum because there it was clear that there was an animus against people by reason of their race, an animus, a hostility.

MS. ELLIS: No, Your Honor, many segregationists say that they oppose not the black race, but they oppose the activity of integration, and even if they said that they loved the class but opposed -- physically obstructed the entrance of black children into Central High in Little Rock, I believe this Court should find class-based animus there, as it should here. I believe that taking away a right that only that class has must violate the animus requirement for section 1985(3).

The Solicitor General relies on Geduldig to argue that no class-based animus exists. Geduldig was decided in 1974 when this Court's gender-based equal protection standard was still evolving.

Geduldig differs dramatically from this case, because there the Court was asked to interpret the Constitution to provide mandatory benefits.

As recognized by Chief Justice Rehnquist in the 1977 Nashville Gas Company v. Satty decision, Geduldig by its own terms is limited to cases dealing with the distribution of benefits, not the imposition of burdens.

Here, women are asking for statutory protection from the complete denial of their rights, and they are not seeking any monetary or other benefits.

As this Court recently reaffirmed in Casey, the denial of womens' reproductive rights denies women the ability to control their destiny.

Turning to the right to travel, the independent right violated here, the right to travel here was violated in the most blatant way possible -- by actual, physical obstruction of movement.

Griffin is the only other case where this Court has addressed the right to travel under section 1985(3). The facts here track the unanimous decision of Griffin in three important ways, and in one way this case is much stronger than Griffin.

First, in both cases the defendants physically obstructed travel, although not at a State border. Here, in Griffin, there was a single episode of obstruction of travel on a public highway. Here, there was a pattern of blockades at a clinic in Falls Church, Virginia, less than 10 miles from the D.C. and Maryland borders.

The court below found that petitioners engaged in the conspiracy, as Justice Stevens noted before, for the purpose, either directly or indirectly, of depriving women of the right to travel.

Second, in Griffin the Court remanded to determine if there had been actual or intended interstate travel. And here there was a factual finding by the Court that a substantial number of respondents, in fact, engaged in interstate travel.

As the Griffin case came to this Court, there was very little evidence of interstate travel. In fact, the Solicitor General's brief in that case, which was filed on behalf of those people who had been deprived of their rights, noted in footnote 6 that they believed there had been no allegations of interference with interstate travel. That is why this Court, in Griffin, allowed the plaintiffs on remand to elect -- to prove some connection with interstate travel in a variety of ways.

QUESTION: Ms. Ellis, just out of curiosity because I don't remember, which side did the Solicitor General take in the Griffin case?

MS. ELLIS: The Solicitor General, in that case, took the side of the black plaintiffs who had been beaten up.

QUESTION: So they asked for an expansive interpretation of the statute.

MS. ELLIS: They did, Your Honor. And they said in that case that equal protection of the laws should be interpreted broadly to -- even if interstate travel wasn't violated, that because the plaintiffs there had been beaten up, their equal protection of the laws had been violated.

Third, in both Griffin and this case, the defendants blocked the travel, not because they cared about the travel per se, as we had said last time, but because they wanted to stop the activities the plaintiffs were traveling for. In Griffin it was civil rights activities, and here it was to exercise the right to privacy.

So this case tracks Griffin in the three ways of physical obstruction, actual interstate travel, and the fact that in both cases the people were traveling in order to exercise other constitutional rights.

Significantly, however, this case is stronger than Griffin because in Griffin there were only two conspirators, and here there was a mob. And as I've mentioned before, Congress was particularly concerned, in enacting section 1985(3), about the fact that mobs could deprive individuals of equal protection of the law in a way that a sole person cannot.

Nonetheless, the Solicitor General insists that respondents are opening a Pandora's box because, he argues, there's no showing that petitioners purposefully interfered with respondents' right to travel. Well here, of course, petitioners did physically block respondents' right to travel. There can be no more blatant obstruction of the right of travel. In this Court's -- in most of this Court's other travel cases, such as Shapiro v. Thompson, there is no direct interference with the right to travel. Only in Griffin and in this case was there physical obstruction.

The petitioners -- the Solicitor General's argument can be accepted only if this Court takes an unnaturally narrow view of the right to travel under section 1985(3) so that it is only violated when the defendants block only interstate travelers, and when they block them with the sole purpose to prevent crossing straight -- State lines.

That was not the case in the unanimous decision of Griffin v. Breckenridge, and yet this Court held the right to travel could be violated. This case is on all fours with Griffin.

QUESTION: Griffin, of course, involved unquestioned discrimination against -- an animus against a class, blacks, right? I mean that was just not an issue at all -- at all in Griffin.

MS. ELLIS: It was not an issue, Your Honor, because they inferred the animus from the fact that they beat them up. There was -- in Griffin in note 10, the Court said that animus should not be confused with scienter.

QUESTION: Well that's right, but they --

MS. ELLIS: And that also should not --

QUESTION: The purpose here was discrimination against blacks, the purpose in Griffin.

MS. ELLIS: That was -- that purpose was inferred from the fact that they beat them up.

QUESTION: And that's a part of it.

MS. ELLIS: They did not say that they hated blacks.

QUESTION: Well that's -- that's a big issue here.

MS. ELLIS: That's right, Your Honor.

QUESTION: Whether it is, indeed, a class of women that is the object of the activity, or whether a class of those seeking or assisting in abortion.

MS. ELLIS: Your Honor --

QUESTION: So I -- you know, I think that's a big difference between the two cases.

MS. ELLIS: Your Honor, there is no doubt that petitioners' purpose is to stop the activity of abortion. Abortion is a constitutional right of a class of women. That is the same as petitioners' -- if petitioners' were trying to block an integrated school, trying to block an activity that is a constitutional right of black citizens.

In doing that, they would also block other people coming into the school; they would block the teachers and block parents, custodians, just as here petitioners block others coming into the abortion clinic. Nevertheless, it is clear that the animus is directed towards women.

QUESTION: That's not the proper analog. It seems to me the proper analog is blocking everybody from going into the school, and then saying in blocking everybody you're also blocking blacks.

MS. ELLIS: I agree with that, Your Honor, that is a proper analog.

QUESTION: And you think that that would be a violation --

MS. ELLIS: I think --

QUESTION: If you said we don't want anybody to go to school?

MS. ELLIS: I think if the segregationists in Little Rock said that our object is to block anyone from going into this integrated school because the school is integrated, yes, Your Honor, I think that is class-based animus. In fact, I think many segregationists did try to do that. They didn't want anyone going into those integrated schools.

QUESTION: Yes, because the school is integrated.

MS. ELLIS: That's right.

QUESTION: But not because they don't want people to go to school.

MS. ELLIS: That's right. And here they're blocking because they don't --

QUESTION: The assertion here is that they're blocking because they don't want people to provide or receive abortions.

MS. ELLIS: That's right, Your Honor. And it's exactly parallel. There they did not want the class to exercise their constitutional right to an integrated education. Here, they do not want the class to exercise their constitutional right to an abortion.

QUESTION: In the one case it's because of race. In this case it remains to be established whether it's because of sex.

MS. ELLIS: Well, Your Honor, I think that the problem is it's always difficult to define -- to divine the actual malice or animosity that is motivating someone. That's why the Court said in Griffin that the class-based animus requirement should not be confused with a requirement of personal hostility.

We do not know what was in the heart of the segregationists. All we know is that they tried to block a constitutional right that that class has. Similarly, we do not know what is in the heart of petitioners, but we do know that they have a conceded purpose to block women from exercising a constitutional right.

While we believe that the violation of the right to travel is clearly sufficient to justify the injunction below, there are three other ways this injunction can be sustained.

First, respondents made a privacy claim which was not ruled on the court -- ruled on by the courts below.

Second, section 1985(3) jurisdiction is also sustained by petitioners' avowed purpose to hinder and prevent local authorities from enforcing the law, in violation of the second clause of section 1985(3), a claim which is proved below, but not fully briefed.

At this point, I would like to answer Justice Kennedy's question that you posed to opposing counsel. In this case, Your Honor, trial testimony has shown that between the time the complaint was filed and the time of the trial, that a blockade occurred at a Maryland clinic. And at that clinic the police could not guarantee safe passage to the patients who tried to get into the clinic, even though they had called on all the resources of the county and the State police.

QUESTION: Did you say the issue of interference was raised below?

MS. ELLIS: Of hindrance? The issue of hindrance, Your Honor, was proved below, but it was not fully briefed.

QUESTION: And it wasn't -- and it wasn't in the complaint, was it?

MS. ELLIS: No, Your Honor. The complaint is alleged, though, a violation of section 1985(3) generally.

QUESTION: Yes, yes. And you say it was -- you say it was litigated below?

MS. ELLIS: I'm sorry. It was proved below. The evidence showed a hindrance of the State police, of the local police.

QUESTION: But there were no findings of the district court with that -- in that respect.

MS. ELLIS: Well, the findings -- there were findings, not specifically directed towards a hindrance claim, but there findings --

QUESTION: And there was no -- but there was no conclusion of law that the second clause was violated.

MS. ELLIS: That's right.

QUESTION: And it was not addressed in the court of appeals.

MS. ELLIS: No, it wasn't, Your Honor. However, Your Honor, we do believe that under rule 15(b), the pleadings, of course, are amended to conform with the evidence, and that this question, should the Court choose to reach it, is fairly subsumed within the Fourth Circ -- question here, which was was the jurisdiction of the Federal court substantial enough to justify the injunction.

QUESTION: You want us to find that there was a purpose of hindrance?

MS. ELLIS: I think, Your Honor, the more appropriate case -- the more appropriate course in this instance would be to remand for full briefing on hindrance. But I do believe there is evidence in the record, should the Court want to address that question.

Finally, even if none of the section 1985(3) claims ultimately prevail on their merits --

QUESTION: What if we -- what if we reject your claims other than the hindrance claim, we just don't say anything about it? Let's assume we just don't say anything about hindrance, but otherwise you lose, is the case over?

MS. ELLIS: Your Honor --

QUESTION: I suppose -- I suppose the mandate would say, is remanded for further proceedings consistent with what we held.

MS. ELLIS: I think at the minimum the case should be remanded for briefing -- I'm sorry, for a decision on the privacy claim, which was alleged and briefed, but never addressed by either of the courts below. Here --

QUESTION: Oh, I thought it was addressed by the district court.

MS. ELLIS: No, Your Honor, the court decided not to reach that claim. It discussed it --

QUESTION: It thought it was problematic, I guess.

MS. ELLIS: It did say it was problematic, but it decided not to adjudicate --

QUESTION: Well, what about the hindrance claim?

MS. ELLIS: Pardon?

QUESTION: What about the hindrance claim? You say that the proper thing to do would be to remand on that.

MS. ELLIS: Mm-hum, I believe so, Your Honor, and I believe in any case that there is enough -- that the hindrance and the privacy claims are substantial enough so that jurisdiction exists and the injunction could be sustained on the pending State law claims which the Court found to be violated.

QUESTION: If the basis for our rejection of your other claims is the lack of -- in our view the lack of having established animus, then the hindrance claim is over as well.

MS. ELLIS: Your Honor, we have reconsidered our position on that.

QUESTION: Oh, you have reconsidered your position on that.

MS. ELLIS: We have reconsidered our position on that.

QUESTION: Last time, you said it would have been over as well.

MS. ELLIS: That's right, we did, Your Honor, and on reflection we have reconsidered our position on that. We believe that there are strong reasons that class-based animus should not be required for the hindrance claim because the class-based animus requirement was created by this Court in Griffin out of concern for not Federalizing section 1985(3) into a tort law.

Those same concerns do not exist with the hindrance claim, and we would say that this is more like Kush v. Rutledge, the case where this Court found no requirement of class-based animus for section 1985(2), and in Kush this Court also emphasized that in Griffin the Court was only addressing the clause of section 1985(3) --

QUESTION: Well, it may be -- even if you're right, there might still be a question of whether the protestors have the purpose of overwhelming city -- city police.

MS. ELLIS: That's right, Your Honor, but that was proved at trial. There was actually evidence in the record showing that one of their exhibits asked to have thousands of -- 1,000 or 1,500 people come because when that many people come there are too many people for the police to arrest --

QUESTION: Well, there may be evidence in the record to support a finding, but the finding hasn't been made.

MS. ELLIS: Well, Your Honor, in footnote 4 of the district court's opinion, the court talked about how the activities of petitioners overwhelmed the Falls Church police department and talked about a specific example.

QUESTION: That's the effect. There's no difference between purpose and effect. I mean, that's a common theme throughout your argument. The footnote you're referring to said that the effect was to overwhelm, but we're talking here about purpose. The statute requires that it be the purpose, doesn't it?

MS. ELLIS: Right, and there is evidence --

QUESTION: And there's no finding on that, is there?

MS. ELLIS: There's no finding on that. There is evidence in the record, though, to support that finding.

For the little children in Little Rock, this Court said in Cooper v. Aaron that the vitality of constitutional principles cannot be allowed to yield simply because of disagreement with them. Congress enacted section 1985(3) so that the mob no more than the State could nullify constitutional rights.

Like the plaintiffs in Griffin, women here invoke the core coverage of section 1985(3) so that they may be able to exercise their constitutional rights under the protection of the rule of law.

Thank you.

QUESTION: Just to clarify one thing in my own mind, was the injunction entered here as a preliminary injunction, or was it a final injunction?

MS. ELLIS: It was a permanent injunction that expired at a definite time. It has since been extended on five separate occasions and now is set to expire on January 8, 1993.

QUESTION: But as initially entered it was a final injunction.

MS. ELLIS: It was. The trial court consolidated the hearing -- the final hearing with a preliminary hearing.

QUESTION: The question I have is, I don't quite understand why you say that there's no danger with respect to the hinder clause of turning this provision into a general tort law and therefore we don't need to import the animus requirement. Surely, any time anyone bribed a policeman or conducted all sorts of activities that would impair law enforcement, wouldn't that be -- wouldn't that come under this provision?

MS. ELLIS: I think, Your Honor, it would have to be for the purpose of depriving an equal protection of the laws, and so I don't think bribing a policeman would come under --

QUESTION: Well, no, you're eliminating an animus requirement.

MS. ELLIS: Right.

QUESTION: You don't -- it doesn't have to be class-based. All you have to do is try to stop a policeman from protecting somebody else's rights isn't that right, so that would uniformly be covered.

MS. ELLIS: No, Your Honor, I think that hindrance should apply to acts that attempt to take away the equal protection of the laws by hindering the local authorities. It cannot just apply to bribing a policeman. The statute requires both --

QUESTION: Why not? You bribe him to do something. That is, to deprive someone of activity that he'd otherwise provide. I mean, that's the purpose of bribing.

MS. ELLIS: That is clearly not what Congress was concerned about --

QUESTION: Well, I'm sure that's true.

MS. ELLIS: -- in enacting section 1985(3).

QUESTION: I'm sure that's true, but I don't see how you avoid that without importing into the hindrance clause the same class-based animus requirement that you have imported into the other clause.

MS. ELLIS: I think the best way to avoid that is to require that you be hindering the police for the purpose of interfering with Federal constitutional rights, just as this Court has required a violation of the independent right under the first clause of 1985(3). I think that you'd also want to make sure that it was for the purpose of interfering with Federal constitutional rights, which I think is well-supported by the text of --

QUESTION: Not State constitutional rights? How can you eliminate State rights? Why do you limit the text just to Federal constitutional rights?

MS. ELLIS: Well, I think that either would be an acceptable course for this Court.

QUESTION: Do you think so?

MS. ELLIS: This Court has so far only specifically protected Federal constitutional rights under 1985(3). That, of course, is an open question.

QUESTION: Thank you, Ms. Ellis. Mr. Sekulow, you have 11 minutes remaining.

REBUTTAL REARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

MR. SEKULOW: Thank you, Mr. Chief Justice. Briefly, first, reliance on Kush v. Rutledge with regard to the hindrance claim is misplaced because the legislation requires, under the prevent and hinder clause, the same word equal. The amendment process required equal to be added. The word equal, in the statute, was where the animus language derived from, and that clearly has to be here.

I understand they're now trying to pull away from their previous admission on that point, but Kush v. Rutledge certainly doesn't point to that. In fact, Justice Stevens, in finding the claim could proceed under 1985(2) there noted that, specifically, the same language in 85(2) was not present in 85(3).

Secondly, the defendants or the petitioners' hearts were read, if you will, by the district court here, what their purpose was. The court stated -- the district court found it is undisputable that all defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization.

There is no animus against the class of women; it is an opposition to a specific activity. Secondly, to view animus in the way respondents have would be -- using an example, if, in fact, there was a disagreement or an opposition to affirmative action by a particular group, and that would -- if their view were to carry the day, would have an effect on affirmative action.

But to translate that effect into an invidious discriminatory animus, that that now means that the group that was gaining the benefit of the affirmative action project is now the target of their animus, would be incorrect unless it was some type of pretext for the objection.

For instance, in the school example that was given if, in fact, desegregation -- the integration of the school took place -- in the situation that was referred to in Little Rock there, it was clear that the objection -- the opposition was not to children going to school, it was the opposition of children going to school with black children. The modus -- the motive, the animus in that case clearly was the opposition to blacks going to the schools.

I'd also state that our position is that Satty certainly does not support the position on discriminatory -- invidious discrimination, because Satty was a title 7 case. This Court has required invidious discriminatory animus. Clearly here the animus, as I said, is to the opposition of abortion. The fact that it has an effect on women seriously mischaracterizes the nature of the dispute, and also, I think, mischaracterizes the nature of the issue presented to this Court.

This Court, in Casey, did not state that the right to abortion was essential to equality. I think that's important here. The fact that the -- this Court's jurisprudence with regard to reproductive freedom has had an effect on women's ability to participate equally in the Nation, in the social life of the country, does not become the legal equivalent of there now being an invidious discriminatory animus.

And I think Casey, to the contrary, clearly does not support the proposition that opposition to abortion constitutes invidious discrimination against women.

First, throughout its abortion jurisprudence this Court has not found the right to exist under the equal protection clause, which would be the normal place to find restrictions being reviewed as invidiously discriminatory under the equal protection analysis. That's not what this Court has cnose to do.

Secondly, I think significantly, that the Court's opinion in Casey points to the issue that opposition to an activity does not constitute invidious discrimination against women. Specifically in the joint opinion it is stated:

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage. Some of us, referring to members of the Court, as individuals find abortion offensive to our most basic principles of morality.

If men and women of good conscience can sincerely disagree over this issue, then how can opposition to abortion constitute per se invidious discrimination against women? It cannot.

The Court also recognized in Casey, specifically, that abortion is a unique act. And it said it is fraught with consequences for others, and included in those others was the life or potential life of the unborn child, the woman who undergoes the procedures, her family, and her spouse.

The Court further went on in Casey to recognize that there is, and I'm going to quote again:

As with abortion, reasonable people have differences of opinion. One view is based on such reverence -- excuse me -- for the wonder of creation that any pregnancy ought to be welcome and carried to full term, no matter how difficult it will be to provide for the child and ensure its well-being.

Another is that the inability to provide for the nurture and care of the infant is cruelty to the child and anguish to the parents. These are intimate views with intimate, infinite variations, and they are deep personal in character.

That -- those statements from the joint opinion in Casey clearly, unequivocally, do not support the proposition that opposition to abortion is the legal equivalent, per se, invidious discrimination against women. And I think, clearly, it cuts the other way. What this Court recognized in Casey is that the issue of abortion is one of profound national debate.

QUESTION: Of course, this case involves more than opposition to abortion.

MR. SEKULOW: I think not. Their opposition --

QUESTION: But don't you think your clients did something more than just let -- let it be known that they were opposed to abortion? Didn't they try, specifically, to interfere with people who crossed a State line to get abortions? That's more than opposition.

MR. SEKULOW: First, that -- I think that's the ultimate opposition to abortion, is interfering with abortion as the animus, the activity of abortion. It is their opposition, and it is unequivocal that that is their opposition. They seek to deter women.

And, of course, opposition is not for the purpose of keeping out of State people versus in State people. Clearly, that's not supported by this record, Justice Stevens.

But their opposition --

QUESTION: Well, would it be supported if all of the patients in the clinic came from out of State?

MR. SEKULOW: No, it would not. Because that is not the purpose of their activity. Now if it was -- I won't even speculate. But the truth here is that the animus is -- as this Court recognized, that men and women of good conscience will disagree on this issue -- these petitioners obviously take the position, and are opposed to the act, the conduct, as this Court said in Casey, of abortion.

QUESTION: They're opposed to an act that only members of the class can engage in.

MR. SEKULOW: They are -- precisely. And if that's the case, which it is only --

QUESTION: Which is entirely unlike the Indian example, because anybody can fish.

MR. SEKULOW: I don't think so. Because I think they're directly comparable. The fact that only women can exercise the right points to the fact that there cannot not be a denial of equality. And that is clearly required by the statute here. Plus the scope of the petitioners' conduct is aimed at the entire process of abortion. It is opposition to an activity of abortion. That's what is at issue here, and everyone involved in that process.

Thank you -- yes, Mr. Justice --

QUESTION: But the State causes of action --

MR. SEKULOW: There were claims here under the -- under trespass and --

QUESTION: Does the injunction rest on that?

MR. SEKULOW: Yes, there was independent grounds, the court said, for the injunction under State grounds.

QUESTION: So what would be do if we agree with you about the injunction?

MR. SEKULOW: I think that this Court would remand it to the -- back to the Fourth Circuit for determination whether there was sufficient subject matter jurisdiction. Our position is that the right to travel claim is so insubstantial not to confer it, but the issue that the injunction rests upon, and upon which attorneys' fees were issued, was the claim under 42 USC section 1985(3), which is the lineal descendant of section 2 of the Ku Klux Klan Act.

Thank you.

QUESTION: Thank you, Mr. Sekulow. The case is submitted.

(Whereupon, at 10:57 a.m., the case in the above-entitled matter was submitted.)

Print this transcript Transcript: 

Argument of Speaker

Mr. Roberts: The opinion of the Court in No. 90-985, Bray against Alexandria Women's Health Clinic will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case, originally argued in the October, 1991 term and reargued in this term, comes here on writ of certiorari to the Court of Appeals for the Fourth Circuit.

The petitioners are an association and individuals who organize and coordinate anti-abortion demonstrations that trespass upon and obstruct general access to the premises of abortion clinics in the Washington D.C. area.

Respondents include the abortion clinics and organizations supporting legalized abortion.

Respondents sued to enjoin petitioners from conducting their demonstrations invoking the first clause of Section 2 of the Civil Rights Act of 1871, 42 U.S.C. Section 1985(3).

That clause prohibits conspiracies "for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws".

The District Court ruled that petitioners had violated this federal statute by conspiring to deprive women seeking abortions of their right to interstate travel, and also rule for respondents on state law claims of trespass and public nuisance.

As relief, the court enjoined future demonstrations and, based on the Section 1985(3) finding, ordered petitioners to pay respondents attorney's fees and costs.

The Court of Appeals for the Fourth Circuit affirmed.

In an opinion filed with the Clerk today, we essentially reverse.

Respondents are not entitled to relief under the first clause of Section 1985(3).

Our precedents hold that to establish a violation of that Section a plaintiff must show that the conspirators acted with some racial or otherwise class-based invidiously discriminatory animus.

Our position to abortion does not qualify as a class-based animus, nor does our position to abortion reflect an invidiously discriminatory animus against women in general.

Men and women are on both sides of petitioner's demonstrations, and our precedents indicate that the disfavoring of abortion is not ipso facto invidious discrimination against women as a class.

Respondents also failed to establish a second requirement for a Section 1985(3) violation, namely, that petitioners intended to interfere with rights that are constitutionally protected against private and not merely official interference.

The District Court relied, as I have said, on the right to travel which is constitutionally protected against private interference in certain circumstances.

In our view it is clear, however, that petitioners had no intent to interfere with that right.

It was irrelevant to them whether the women whose access they impeded had traveled interstate or only intrastate to get to the clinics in question.

Petitioners did have the intent of interfering with the right to an abortion, but that right is constitutionally protected only against government interference and under our precedents, it cannot be the basis of a private conspiracy claim under Section 1985(3).

We do not reach the issue whether respondent could obtain relief under the second clause of Section 1985(3). the so-called prevention clause which prohibits conspiracies "for the purpose of preventing or hindering any state from giving or securing to all persons the equal protection of the laws."

Respondents did not state a prevention clause claim in their complaint, neither did the District Court nor the Court of Appeals reach the issue, and petitioners did not present this question in their petition for certiorari.

We note, moreover, that the language in the first clause that is the source of the class-based animus requirement is also found in the second clause, the prevention clause.

Moreover, to prevail with regard to this second clause, respondents would have to establish that unlike the first clause it applies to private conspiracies aimed at rights constitutionally protected only against government interference.

Because respondents were not entitled to relief under Section 1985(3), we vacate the award of attorney's fees.

We also conclude that prior to this decision respondents' claims were not so frivolous as to deprive the District Court of subject-matter jurisdiction, but on remand, the court should consider whether the state law claims alone can support the injunction.

The judgment of the Fourth Circuit is reversed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion.

Justice Kennedy joins the Court's opinion and has filed a concurring opinion; Justice Souter has filed an opinion concurring in the judgment in part and dissenting in part; Justice Stevens has filed a dissenting opinion in which Justice Blackmun joins; Justice O'Connor has filed a dissenting opinion in which Justice Blackmun joins.