Carson v. American Brands, Inc. Brief for the United States as Amicus Curiae

    No. 90-985

In The

Supreme Court ot tbe Urn'teb States;
October Term, 1990

Jane Bray, Operation Rescue, et al.
Petitioners,

v.

Alexandria Women’s Health Clinic, 
National Organization for Women, et al. ,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

Julius L. Chambers 
Charles Stephen Ralston 

(Counsel of Record)
Eric Schnapper 
Charlotte Rutherford 
Cornelia T.L. Pillard 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

Attorneys fo r  Amicus Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................  ii

INTEREST OF A M IC U S ...................................................  v

SUMMARY OF A R G U M EN T.............................................  1

ARGUMENT ..............................................................   4

INTRODUCTION ..................................................  . 4

I. OPERATION RESCUE VIOLATED 42
U.S.C § 1985(3) BY CONSPIRING "FOR 
THE PURPOSE OF PREVENTING OR 
HINDERING" LOCAL AND STATE 
AUTHORITIES FROM "GIVING OR 
SECURING" TO THE PLAINTIFFS "THE 
EQUAL PROTECTION OF THE LAWS" 9

A. Defendants conspired to prevent 
police from equally enforcing state 
laws so as to protect women 
attempting to enter plaintiff clinics 10

B. Defendants’ conspiracy blocked
plaintiffs from exercising their 
federal constitutional right to 
abo rtion ............................................. 19

H. CLASS ANIMUS IS NOT A REQUIRED
ELEMENT OF A HINDRANCE CLAIM 27

in. OPERATION RESCUE’S INVIDIOUS
ANIMUS AGAINST WOMEN SATISFIES 
ANY CLASS ANIMUS REQUIREMENT
THAT MIGHT APPLY ...........................  34

C O N C L U SIO N ....................................................................  43



11

TABLE OF AUTHORITIES 

Cases

Adickes v. Kress & Co.,
398 U.S. 144 (1970) ................................................ ... . 19

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

Collins v. Handyman
341 U.S. 651 (1951) ..................... .. .............................  25

Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................ ... . 37

Geduldig v. Aiello,
417 U.S. 484 (1974) ............ ......................................... 37

General Electric Co. v. Gilbert,
429 U.S. 125 (1976) .............................. ... 37

Great American Savings &
Loan Assoc, v. Novotny,
442 U.S. 366 (1979) ................................  20, 24, 25

Katzenbach v. McClung,
385 U.S. 641 (1966) ..................... .. ....................  12, 37

Katzenbach v. Morgan,
384 U.S. 641 (1966) .............................................  12, 38

Kush v. Rutledge,
460 U.S. 719 (1983) ....................................... 1 9 ,3 2 ,3 3

Monell v. New York City Dept. 
ofSoc. Svcs, 436 U.S. 658 (1978).............................. ..  18

Nashville Gas Co. v. Satty,
434 U.S. 136 (1977) ...................................................... 38

National Organization fo r  Women v. Operation 
Rescue, 726 F. Supp. 1483 (S.D.N.Y. 1989) . . passim



Ill

New York State N. O. W. v. Terry,
886 F.2d 1339 (2d Cir. 1 9 8 9 ) ..............................  16, 36

Newport News Shipbuilding &
Dry Dock v. EEOC,
462 U.S. 669 (1983) ...................................................... 38

Pullman-Standard v. Swint,
456 U.S. 273, 288 (1982) .............................................  36

Texas v. Johnson,
109 S.Ct. 2533 (1990) ...................................................  17

U.S. v. Yellow Cab Co.,
338 U.S. 333 (1949) ...................................................... 35

United Bhd. o f  Carpenters and 
Joiners o f Am. v. Scott,
463 U.S. 825 (1983) .................................  20, 22-25, 34

United States v. Harris,
106 U.S. 629 (1882) ......................................................  11

United States v. Price,
383 U.S. 787 (1966) ............................................. 11, 20

Statutes

Fed. R. Civ. P. 5 2 ( a ) .........................................................36

18 U.S.C. § 2 4 1 ..................................................................19

42 U.S.C. §§ 1981 and 1982 ..........................................  27

42 U.S.C. § 1983 ............................................................... 10

42 U.S.C. § 1985(2) ......................................................... 32

42 U.S.C. § 1985(3) ................................................ passim



IV

42 U.S.C. §2000e-et seq...................................................... 37

Congressional Globe, 42d Cong.,
1st Sess........................................................................ passim



V

INTEREST OF AMICUS

The NAACP Legal Defense and Educational Fund, Inc., 

(LDF) is a non-profit corporation established to assist 

African Americans in securing their constitutional and civil 

rights. LDF has litigated civil rights issues in federal court 

since 1941, relying in many instances on the Reconstruction- 

era civil rights statutes. LDF seeks to ensure the continued 

vitality of 42 U.S.C. § 1985(3). The statute protects civil 

rights lawyers and other advocates who travel from state to 

state in the struggle for racial equality. It also guarantees 

that the legal rights of a minority, even when opposed and 

resented by the majority, will not be nullified at the will of 

a mob.

LDF supports the rights of women to reproductive 

health services, including access to abortion and abortion 

counseling. Most clinics affected by the injunction in this 

case serve Medicaid patients and have sliding fee schedules 

for low income women. Because of disproportionately high 

poverty rates among African Americans, many African 

American women in the northern Virginia area would not 

receive necessary reproductive health services if the clinics 

were closed by blockades.



No. 90-985

In The

Supreme Court of tfje flmteb States;
October Term , 1990

Jane Bray, Operation Rescue, et al.
Petitioners,

v.

Alexandria Women’s Health Clinic, 
National Organization for Women, et al. ,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

SUMMARY OF ARGUMENT 

Two separate substantive clauses of 42 U.S.C.

§ 1985(3) prohibit the conspiracy of the defendants in this 

case. The first clause — the "private deprivation clause" — 

forbids purely private conspiracies, motivated by invidious 

animus, that deprive persons of constitutional rights. 

Operation Rescue violated that clause by conspiring with



2

gender animus to deprive women of their constitutional right 

to travel. The second applicable clause of § 1985(3) — the 

"hindrance of the state clause" — forbids conspiracies that 

purposefully hinder the state’s ability to secure equal 

protection of the laws in order to deprive persons of 

constitutional rights. Operation Rescue also violated that 

clause, and it is this second type of violation which is the 

focus of this brief.

Operation Rescue violated the hindrance of the state 

clause of section 1985(3) by summoning hundreds of 

demonstrators to crowd tightly around the plaintiff clinics, 

purposefully outnumbering and refusing to cooperate with 

the police, in order to prevent the police from securing 

plaintiffs’ access to the clinics, thereby depriving plaintiffs 

of their constitutional right to abortion. In forming these 

blockades, defendants acted upon the state in precisely the 

manner prohibited by the hindrance clause. Because 

hindrance involves the state, the hindrance clause remedies 

constitutional rights guaranteed against state infringement, 

such as the plaintiffs’ right to abortion.

Unlike claims under the private deprivation clause of 

§ 1985(3), claims under the hindrance clause need not



3

include proof of invidious class animus. All persons are 

entitled to equal protection of state law without regard to 

whether they belong to a group that is otherwise granted 

heightened constitutional or statutory protection. Moreover, 

even if class animus is required, Operation Rescue’s anti- 

abortion efforts clearly amount to animus against women. 

The close nexus between women’s reproductive capacity and 

their gender identity has led Congress and this Court in 

other contexts to recognize discrimination based on 

reproductive capacity as sex discrimination. It would be 

consistent with the purposes of the statute to hold that 

Operation Rescue’s class animus against women seeking 

abortions is prohibited by § 1985(3) as well.



4

ARGUMENT

INTRODUCTION

At issue in this case is the illegality under 42 U.S.C. 

§ 1985(3) of blockades orchestrated by Operation Rescue 

during which mobs of people, often numbering in the 

hundreds, physically prevent women from entering or 

leaving reproductive health clinics and purposefully frustrate 

local police efforts to secure access to the clinics. Both the 

district court and the court of appeals properly held that such 

blockades violate § 1985(3) as interpreted in Griffin v. 

Breckenridge, 403 U.S. 88 (1971), and Respondents largely 

rely on the theory of Griffin in their brief urging affirmance. 

Amicus agrees that this Court should affirm on the basis of 

Griffin, because a conspiracy to block women from entering 

clinics to have abortions, like the conspiracy in Griffin to 

stop African Americans on a public road and beat them, 

deprives plaintiffs of their right to travel in violation of 

§ 1985(3).

Amicus submits this brief, however, in order to 

elaborate an additional ground upon which Respondents urge 

affirmance. See Respondents’ Brief, Point II.B. The second 

clause of § 1985(3), which was not applicable in Griffin,



5

specifically prohibits conspiracies like Operation Rescue’s

which hinder local law enforcement. Thus, if this Court

disagrees that affirmance is required under the first clause of

§ 1985(3), it should nonetheless affirm for independent

reasons under the second clause.

The first two clauses of § 1985(3), although similarly

worded, address distinct forms of illegal conspiracy, both of

which occurred in this case, but only tho, first of which was

at issue in Griffin and this Court’s other post-Griffin

§ 1985(3) cases. The first clause of § 1985(3) — the

"private deprivation clause" — prohibits conspiring

for the purpose of depriving, either directly or 
indirectly, any person or class of persons of the equal 
protection of the laws, or of equal privileges and 
immunities under the laws ... whereby another is 
injured in his person or property, or deprived of having 
and exercising any right or privilege of a citizen of the 
United States.

Defendants in this case conspired to deprive plaintiffs of 

their travel rights in violation of this clause. They also, 

however, prevented the police from securing access to the 

clinics, and thereby hindered state authorities from securing 

equal protection, in violation of the second clause of 

§ 1985(3) — the "hindrance of the state clause." This clause



6

prohibits conspiring

for the purpose of preventing or hindering the 
constituted authorities of any State or Territory from 
giving or securing to all persons within such State or 
Territory the equal protection of the laws ... whereby 
another is injured in his person or property, or deprived 
of having and exercising any right or privilege of a 
citizen of the United States.

The crucial additional element present here that supports 

application of the second clause is Operation Rescue’s 

organized attempt to overwhelm the police and temporarily 

to institute mob rule in order to prevent plaintiffs from 

exercising their constitutional rights.

The logic behind the hindrance clause is that the 

constitutional requirement that the state secure to all persons 

equal protection of the laws must not be circumvented by a 

private mob preventing the state from securing equal 

protection. It applies here because, for example, if  Falls 

Church, Virginia were voluntarily to withhold police 

protection from women seeking to visit the Commonwealth 

Women’s Center out of a desire to prevent women from 

having abortions, the city would have violated the women’s 

constitutional rights to abortion; where a mob seeks to 

achieve the same results — denying women their 

constitutional rights — by hindering and obstructing the city



7

from protecting people exercising those rights, the mob 

action violates the hindrance clause of § 1985(3).

A similar threat to state law enforcement would be 

posed by conspiratorial blockades that purposefully prevented 

African American and white children from attending 

integrated schools, kept members of a religious congregation 

from entering their temple, mosque, or church, or barred 

voters from the polls in a Hispanic neighborhood. Such 

blockades violate § 1985(3) because they constitute a 

conspiracy to nullify the constitutional rights of a disfavored 

class by overwhelming the state’s ability to protect that 

class’s rights. The role of state law in securing personal 

liberty and civil rights for all cannot be fulfilled when 

nationwide conspiracies are permitted purposefully to deny 

state-law protection to certain groups. Section 1985(3) thus 

complements state and local governments’ efforts to provide 

legal protection when their ability to do so is most 

challenged.

In this case, the Falls Church police did all they could 

to secure the protection of state law to women in this action 

as plaintiffs sought to enter Commonwealth Women’s Clinic 

to receive or render services there. Local and state efforts



8

proved inadequate, however, against the masses of people 

participating in the Operation Rescue blockade. The police 

force, even as supplemented at the city’s expense by county 

and state law enforcement officers, was unable to secure 

access to the clinic for as long as six hours. During that 

time many patients were unable to receive medical treatment, 

including scheduled abortions.

It has only been since the federal court in this case 

entered an injunction under § 1985(3) against the blockades 

that the protections of state law have again been equally 

secured for women seeking constitutionally protected 

services from Commonwealth Women’s Clinic. Operation 

Rescue now regularly conducts lawful, First Amendment- 

protected demonstrations outside the Commonwealth 

Women’s Clinic. With the support of the federal court 

injunction, those women who choose to seek services at the 

picketed clinics are now able to do so.

In order to affirm, this Court need only determine that 

there is a substantial federal question supporting federal 

jurisdiction. The district court entered its injunction based 

on both state and federal law. As long as the district court 

properly exercised its federal jurisdiction, its decision must



9

stand on the unchallenged state law grounds. Because there 

is at the very least a substantial federal question under one 

of the two prongs of § 1985(3) at issue here, the decision of 

the district court must be affirmed.

I. OPERATION RESCUE VIOLATED 42 U.S.C. 
§ 1985(3) BY CONSPIRING "FOR THE PURPOSE 
OF PREVENTING OR HINDERING" LOCAL AND 
STATE AUTHORITIES FROM "GIVING OR 
SECURING" TO THE PLAINTIFFS "THE EQUAL 
PROTECTION OF THE LAWS"

The Operation Rescue activities challenged in this case

are plainly prohibited by 42 U.S.C. § 1985(3). Defendants’

organized, conspiratorial efforts are designed expressly to

hinder and prevent the local and state police from securing

protection of the laws to plaintiffs that is equal to that

enjoyed by persons who are not seeking to exercise their

constitutional right to abortion. Section 1985(3) explicitly

forbids such a conspiracy to nullify federal rights by

frustrating state law enforcement. Operation Rescue’s

blockade was so effective that it completely prevented state

and local police from protecting the plaintiffs. Like the

inability of former Confederate states in the wake of the

Civil War to protect African Americans and their Republican



10

supporters in the face of Ku Klux Klan mobs, the inability 

of municipal and state police to protect plaintiffs, despite 

their best efforts, worked a deprivation of plaintiffs’ 

constitutional rights that is properly remedied under 

§ 1985(3).

A. Defendants conspired to prevent 
police from equally enforcing state 
laws so as to protect women 
attempting to enter plaintiff clinics

The hindrance clause of 1985(3) "deal[s] explicitly]" 

with "interference with state officials," or "interference with 

or influence upon state authorities." Griffin, 403 U.S. at 

98-99. The clause addresses the particular threat that 

private mob action poses to the rights of individuals when 

the mob prevents state governmental mechanisms from 

enforcing such rights. The clause is not directed at states’ 

active impairment of rights, which 42 U.S.C. § 1983 

addresses. Rather, Congress enacted it to provide a remedy 

where mob coercion renders state law ineffective. Newly 

elected Republican Southern state governments during 

Reconstruction faced precisely this problem from Ku Klux 

Klan-organized mobs: "The States themselves were



11

helpless" to enforce their laws. United States v. Price, 383 

U.S. 787, 804 (1966). The section’s second clause was 

written to respond to this problem. Thus, private 

conspirators’ liability under that clause for hindering state 

and local officials from enforcing state law does not depend 

on complicity of state governments, but rather depends on 

whether the private conspiracy effectively has obstructed the 

operation of state law.

This Court over a century ago acknowledged that the 

language of the hindrance clause covers private conspiracies 

that seek to block state law enforcement. Just sixteen years 

after the passage of § 1985(3), the Court in United States v. 

Harris, 106 U.S. 629 (1883), reviewed criminal convictions 

based in part on a criminal statute that paralleled verbatim 

the hindrance clause of § 1985(3). The Court found that the 

clause covered a conspiracy by twenty armed defendants to 

break into the county jail and attack four prisoners in 

violation of Tennessee law. The defendants were charged 

with "preventing and hindering the constituted authorities of 

the State of Tennessee, ” specifically the sheriff, from safely 

keeping the prisoners in custody pending their trials, i.e., 

from securing to them "equal protection of the laws of the



12

State of Tennessee." 106 U.S. at 631.1 The Court found 

that the allegations in the indictment were within the terms 

of the criminal statute corresponding to the hindrance clause 

of § 1985(3), but it struck the statute as unconstitutional on 

grounds not relevant today. Id. at 644.2

The district court in this case found that Operation 

Rescue sought to stop abortions by obstructing and 

interfering with local and state law enforcement to the point 

where plaintiffs enjoyed no protection of state law. As the 

court explained, "[a]t a ‘rescue,’ the demonstrators, called 

‘rescuers,’ intentionally trespass on the clinic’s premises for 

the purpose of blockading the clinic’s entrances and exits,

1 This Court has since confirmed that the statutory phrase "equal 
protection of the laws" includes the protections of state law. See 
Briscoe v. LaHue, 460 U.S. 325, 337-38 (1983); Griffin, 403 U.S, at 
103.

2The Court held that Congress did not have power to penalize all 
conspiracies to which the statute’s language might conceivably be 
applied, such as conspiracies in which no government authorities, 
however hobbled, are involved. The constitutional determination 
would, of course, be resolved differently today. Under current law, 
federal courts are obligated to construe statutes so as to avoid any 
constitutional issues. See, e.g., Griffin, 403 U.S. at 104 ("we need 
not find the language of § 1985(3) now before us constitutional in all 
its possible applications in order to uphold its facial constitutionality 
and its application to the complaint in this case"). There is no 
question, in light of current understandings of Congressional power, 
that Congress has the authority to reach the conduct of defendants in 
this case, whether under the Fourteenth Amendment, Katzenbach v. 
Morgan, 384 U.S. 641 (1966), or under the commerce clause, 
Katzenbach v. McClung, 379 U.S. 294 (1964).



13

thereby effectively closing the clinic." National 

Organization fo r  Women v. Operation Rescue, 726 F. Supp. 

1483, 1487 (E.D.Va, 1989). During a "rescue," plaintiffs 

do not enjoy the protection of state law. They cannot use 

their property free from trespass, enter contracts for medical 

service free from intentional interference and obstruction, 

or walk and drive on public roads unmolested.

The district court’s findings that Operation Rescue 

intentionally hindered the state from providing equal legal 

protection are amply supported by the record. As Operation 

Rescue’s own pamphlet explains: "1000 or 1500 peacefully 

praying around an abortion mill will be very difficult to 

arrest! In many cases like this in other movements, the 

officials did not arrest people because of the sheer numbers 

involved." R. 484 (emphasis in original).3 Operation 

Rescue vowed to close down the plaintiff clinics. R. 73, 

78. The clinics were "barraged by people" from Operation 

Rescue at least once a week. R. 70-71. "Rescue" 

participants blocked access to the clinics and assaulted staff, 

patients, and police trying to get through. R. 72. The

’Citations in the form "R. 
Court of Appeals Appendix.

" refer to the record pages in the



14

police were required to respond on numerous occasions, but

even "a concerted effort by the police department to arrest

these people" would take ”[h]ours," during which the clinic

would remain closed. R. 97. Joint efforts by local and

state law enforcement agencies were overwhelmed.

The "rescue" at Falls Church on October 29, 1988

followed Operation Rescue’s pattern:

Typical of most ‘rescue’ demonstrations, the 
rescuers outnumbered the Falls Church police 
officers on the scene that day. Even though 240 
rescuers were arrested, the police were unable to 
prevent the closing of the clinic for more than six 
(6) hours. Limited police department resources 
combined with the typical absence of any advance 
notice identifying a target clinic renders it difficult 
for local police to prevent rescuers from closing a 
clinic for some period of time.

Id. at 1489 n.4. Police Lieutenant Gregory King testified

that an Operation Rescue leader "told me that the rescue

mission would cease if I could guarantee that there would be

no abortions at the clinic that day. And of course I couldn’t

guarantee those kinds of things." R. 212. He described in

detail the hindrance that local and state police departments

experienced at the hands of Operation Rescue:

We have 30 sworn members. So, what that 
entails is getting together with four other agencies,
I use the Arlington County Sheriffs Department, 
the Arlington County Police Department, the



15

Virginia State Police and sometimes Virginia 
Department of Corrections to coordinate arrest 
procedures on the scene.

Any time we have over 100 people to arrest, 
it would require just about all those agencies being 
joined together to make it work....

[W]e knew that our clinic was going to be 
hit and we were able to plan and we were there 
long before it even got started. But [the clinic] 
still went down, yes.

R. 213-14. Notwithstanding some successful arrests and

prosecutions, the blockades continued to occur. R. 107.

Operation Rescue’s literature specifically urges local

officials not to provide legal protection to plaintiffs:

Our local civil authorities need not bow to Justice 
Harry Blackmun -  or for that matter, to our own 
abortion enthusiast, Barbara Mikulski. Our local 
authorities have responsibility for this 
municipality.... In defiance of Supreme Court 
edicts, our community can refuse to tolerate 
legalized childslaughter. That is only a starting 
point.

Pltfs. Exh. 11 (R. 472)/ Operation Rescue seeks to 4

4 Operation Rescue members make no secret of the fact that they 
place themselves above the law. One witness recalled remarks of 
Operation Rescue leader Patrick Mahoney at an Operation Rescue 
conference:

[Mahoney] mentioned the fact that there were 
injunctions out in the area and the emergency legislation 
that had passed in the D.C. area. And he said basically 
that these measures would not interfere with what they had 
come to do this weekend, which was to rescue on Friday 
and Saturday.



16

undermine federal protection for abortion rights by ensuring 

that state laws are not equally enforced on behalf of women 

seeking to use clinics where abortions are available.5

Violation of state law is not merely incidental to the

R. 232.

Operation Rescue’s direct assault on judicial enforcement of 
rights in this case is typical of its conduct elsewhere. In New York, 
Operation Rescue founder Randall Terry "acknowledged his intention 
to disobey the district court’s contempt order, and asked, ’[w]ill we let 
this N.Y.C. court intimidate us back into silent cooperation with the 
killing .... [o]r will we face down this judge’s order ...? ’" New York 
State NOW  v. Terry, 886 F.2d 1339, 1345 (2d Cir. 1989).

5Some Maryland law enforcement officials complied with 
Operation Rescue’s suggestion that they simply refrain from protecting 
the state-law rights of women seeking abortions and of the clinics that 
provide them. Police Sergeant Walker in Forestville, Maryland 
requested that clinic staff close the Hillview Medical Center in 
anticipation of an Operation Rescue onslaught. R. 262. The clinic 
administrators said they could not do that, and attempted to open the 
clinic. When Operation Rescue blockaded it, police Captain Downs 
stated "We’re outnumbered. There’s nothing we can do." R. 273.
He explained "I cannot pull all the resources from the county.... 
There’s no help. We have 80 men, and I’ve already pulled the 
resources from the county ... and the state police. And we’re doing 
all we can do." R. 276. A police liaison later concurred with 
Downs’ assessment that the officials were overwhelmed: "You have 
to close because there’s nothing we can do and it’s not going to 
disband." R. 278. Patients who had not eaten for several hours in 
anticipation of surgery, some of whom were bleeding and in need of 
immediate medical care, were blockaded in cars and inside the 
barricaded clinic while Operation Rescue prevented the surgical staff 
from entering. R. 271. A clinic administrator testified that the police 
"told me we were on our own" in getting patients safely out of the 
clinic past the Operation Rescue people. R. 278.

Similarly, in Dobbs Ferry, New York, Operation Rescue 
"entered into an express agreement with police officers that no 
demonstrators would be arrested so long as they agreed to leave the 
site by noon of that day." New York State NOW v. Terry, 704 
F. Supp. 1247, 1260 (S.D.N.Y. 1989), aff’d, 886 F.2d 1339 (2d Cir. 
1989), cert, denied, 110 S.Ct. 2206 (1990).



17

activities of Operation Rescue; the very purpose of its 

campaign is to overwhelm the capacity of the police to keep 

the facilities open. It is by frustrating police efforts to keep 

open the clinics and to protect plaintiffs’ lawful use of clinic 

facilities that Operation Rescue succeeds in stopping some 

planned abortions. As Operation Rescue founder Randall 

Terry explained, "over 15 years of education and political 

lobbying have gotten us virtually nowhere." Pltfs. Exh. 1 

(R. 444).6 Thus, instead of relying on speech and political 

persuasion, Terry organizes coercive blockades.

The hindrance clause of § 1985(3) is not limited to 

prohibiting conduct under color of law. This Court in 

Griffin unanimously rejected the requirement that the private 

deprivation there complained of be inflicted under color of 

state law, because "[t]o read any such a requirement into 

§ 1985(3) would ... deprive that section of all independent 6

6 The enjoined operations are distinct from First Amendment- 
protected activities by which participants attempt to change the conduct 
of others through symbolic or verbal persuasion. Cf. Texas v.
Johnson, 109 S.Ct. 2533 (1989). The distinct aim of a "rescue" 
operation is not simply to exercise rights of association and 
expression, but to outnumber the police and to flood the area 
surrounding a clinic so completely that women are prevented from 
entering not because they have been convinced to doubt their choice to 
go in, but because they physically cannot. When a rescue succeeds, it 
is because local law has been rendered ineffective to protect the 
women seeking to enter the clinics.



18

effect." 403 U.S. at 99; see also id., at 97 (holding that 

"there is nothing inherent in the phrase [‘equal protection of 

the laws’] that requires the action working the deprivation to 

come from the State"). As the Court noted in Monell v. 

New York City Department o f  Social Services, ”[§ 1985(3)] 

as passed, unlike [§ 1983], prosecuted persons who violated 

federal rights whether or not that violation was under color 

o f official authority, apparently on the theory that Ku Klux 

Klan violence was infringing the right of protection as 

defined by [Corfield v.] Coryell. [4 Wash CC 371 (CC ED 

Pa 1825)]" 436 U.S. 658, 670 n.21 (1978) (emphasis 

added).7

Griffin’s reasoning that the deprivation clause of 

§ 1985(3) must be read so as not to duplicate the coverage 

of § 1983 is equally true of the hindrance clause. Each of 

these contemporaneous statutory provisions prohibits a 

distinct kind of conduct. Section 1983 applies against 

deprivation of rights under color of state law. The first 

clause of § 1985(3) provides a remedy against private

7The 1871 Congress read Coryell as defining a Fourteenth 
Amendment right to "protection by the government," not limited to 
protection from unequal treatment but including affirmative rights to 
state protection of person and property.



19

conspiracies to deprive persons of their legal rights, and the 

second clause remedies deprivations of rights at the hands of 

private conspiracies that disable the state from protecting 

plaintiffs’ rights. Kush v. Rutledge, 460 U.S. 719, 724-25 

(1983). Where the deprivation is committed under color of 

law, § 1983 provides a remedy against public and private 

persons alike. Adickes v. Kress & Co., 398 U.S. 144, 152 

(1970). The distinct role of the hindrance clause of 

§ 1985(3) is to remedy deprivations carried out not under 

color of law, but by displacing the law with the force of 

mob rule.

B. Defendants’ conspiracy blocked 
plaintiffs from exercising their 
federal constitutional right to 
abortion

Operation Rescue infringed plaintiffs’ constitutional 

abortion rights in precisely the manner prohibited by 

§ 1985(3). The statute forbids conspiratorial action whereby 

a person is "deprived of having and exercising any right or 

privilege of a citizen of the United States." It thus applies



20

to all rights enjoyed by a United States citizen.8 Although 

it remains unsettled whether the statute also remedies 

violations of federal statutory rights or of rights created by 

the states, United Brotherhood o f Carpenters and Joiners o f  

America v. Scott, 463 U.S. 825, 833-34 (1983), it is clear 

that federal constitutional rights are protected.9 Thus, even 

in the view of those who would confine § 1985(3) coverage 

to "conspiracies to violate those fundamental rights derived 

from the Constitution," Great American Savings & Loan 

Association v. Novotny, 442 U.S. 366, 379 (1979) (Powell, 

J., concurring), defendants’ conspiracy to violate plaintiffs’ 

right to abortion is covered.10

8 Cf. United States v. Price, 383 U.S. 787, 800 (1966) (holding 
that the reference in 18 U.S.C. § 241 to rights secured by "the 
Constitution or laws of the United States" means that the statute 
embraces rights secured by "all of the Constitution and all of the laws 
of the United States”).

T he legislative history shows that the statute was aimed at 
remedying more than simply violations of federal constitutional rights. 
Cong. Globe, 42d Cong., 1st Sess. 375 (Rep. Lowe); id. at 428 (Rep. 
Beatty); id. at 506 (Sen. Pratt); id. at 514 (Rep. Poland).

“Another right at issue here, of course, is plaintiffs’ constitutional 
travel right. Amicus agrees with the position advanced in 
Respondents’ brief that defendants’ conspiracy violated plaintiffs’ right 
to travel. That right is assertible against purely private conspiracies, 
and defendants would be liable for violating it even had they not 
affected the government.

Because defendants did act upon the state, however, they are also 
liable for obstructing plaintiffs’ access to abortion. Application of the 
hindrance clause to abortion is exclusively discussed here because of



21

As the district court found, Operation Rescue 

intentionally prevented women from obtaining abortions. 

Operation Rescue members "trespass on to clinic property 

and physically block ingress into and egress from the clinic, 

[so] existing and prospective patients, as well as physicians 

and medical staff are unable to enter the clinic to render or 

receive medical or counselling services." 726 F. Supp. at 

1489. They do so in order "(i) to prevent abortions, [and] 

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

services ...."  Id. at 1488. The record shows that Operation 

Rescue participants in fact did prevent women from entering 

the clinic by blocking the doors to the clinics with their 

bodies and with trash dumpsters. R. 75.

The fact that the right to abortion has been the subject 

of much controversy only underscores the need for 

protection of its exercise under § 1985(3). When the statute 

was passed, the Thirteenth, Fourteenth, and Fifteenth 

Amendments were at least as controversial, as was the 

notion of extending other constitutional rights to African 

Americans. The Ku Klux Klan sought to prevent

the distinct issues it raises.



22

Republicans and African Americans from exercising their 

new constitutional rights by committing torts and crimes 

such as assault, battery and lynching. Congressional Globe, 

42nd Cong., 1st Sess. 157 (Sen. Sherman); id. at 320-21 

(Rep. Stoughton); id. at 412-13 (Rep. Roberts); id. at 444 

(Rep. Butler). It was precisely because the rights created by 

the Reconstruction Amendments were not universally 

accepted that Congress enacted the Civil Rights Act of 1871 

to enhance the remedies accorded for violations of such 

rights. Women’s reproductive freedom is similarly under 

broad attack by Operation Rescue, a nationwide conspiracy 

to undermine the exercise of abortion rights. Defendants in 

this case, like the conspirators at whom § 1985(3) originally 

was aimed, seek forcibly to revoke constitutional rights that 

they have been unable to repeal through legal and political 

processes.

The efforts of law enforcement authorities to prevent 

defendants’ interference with plaintiffs’ rights do not obviate 

the fact that Operation Rescue blockades "involve or affect" 

the state as required under the hindrance clause as 

interpreted in Carpenters, 463 U.S. at 831. In rejecting a 

claim that a conspiratorial deprivation of First Amendment



23

rights by purely private actors is redressable under 

§ 1985(3), the Court in Carpenters contrasted the conduct of 

the private defendants in that case with circumstances in 

which "the aim of the conspiracy is to influence the activity 

of the State," Id. at 830. In the latter situation, the state is 

sufficiently affected to sustain application of the hindrance 

clause of § 1985(3) to remedy violations of constitutional 

rights otherwise assertible only against the state. In his 

dissenting opinion in Carpenters, Justice Blackmun, joined 

by Justices Brennan, Marshall and O’Connor, agreed with 

the majority’s legal interpretation of the hindrance clause, 

explaining that:

The Court does not require that the conspirators be 
state officials or act under color of state law. 
Instead, the requirement is that the conspiracy 
intend to cause the State or a person acting under 
color of state law to deprive the victims of the 
conspiracy of their constitutional rights.

Id. at 840 n.2. What is needed under the hindrance clause

is "state involvement in the form of an intent [by private

defendants] to interfere with state officials." Id. at 848-49

and n.13. Thus, the intent of the private defendants is

sufficient, and need not be accompanied by invidious intent

on the part of the government.



24

The right to abortion that Operation Rescue obstructs is 

an independent right that supports a claim under § 1985(3). 

"Section 1985(c) provides no substantive rights itself; it 

merely provides a remedy for violation of the rights it 

designates." Novotny, 442 U.S. at 372. It "is a purely 

remedial statute, providing a civil cause of action when some 

otherwise defined federal right ... is breached by a 

conspiracy in the manner defined by the section." Id. at 

376. Because the rights infringed in Carpenters were First 

Amendment rights, and the First Amendment restrains only 

official conduct, the failure to show any effect on the state 

was fatal to plaintiffs’ claim. 463 U.S. at 833.

Operation Rescue, in contrast, did affect government 

actors. It sent people to glut the area surrounding 

reproductive health clinics with demonstrators so as to 

outnumber the police and prevent them from keeping the 

clinics open. This is just the kind of private action that 

Justice Stevens, concurring in Novotny, explained does 

involve the state:

if private persons take conspiratorial action that prevents 
or hinders the constituted authorities of any state from 
giving or securing equal treatment, the private persons 
would cause those authorities to violate the Fourteenth



25

Amendment; the private persons would then have 
violated § 1985(c).

442 U.S. at 384 (footnote omitted). The Court in Griffin 

similarly took for granted that either hindrance of law or 

massive private lawlessness would support § 1985(3) 

liability. 403 U.S. at 98-99. Where a private conspiracy 

acts on the state as described in Griffin, Novotny, and 

Carpenters, there is sufficient infringement of state 

protection of persons exercising constitutional rights to 

support a section 1985(3) remedy, even where the 

conspiracy impairs constitutional rights protected only 

against deprivation by the government.11 This result is 

required by the statute’s recognition, in the hindrance clause, 

of the practical equivalence between a state withholding its 

protection from people exercising certain rights and a private 

conspiracy coercing the state into not giving protection.

The legislative history clearly supports the view that 

active governmental complicity is not required.

nSee, also, Collins v. Handyman, 341 U.S. 651, 661 (1951) 
(finding no liability against private defendants because " [t]here is not 
the slightest allegation that defendants were conscious of or trying to 
influence the law, or were endeavoring to obstruct or interfere with 
it”).



26

Representative Poland argued:

if a state shall deny the equal protection of the laws and 
have proper officers to enforce those laws, and 
somebody undertakes to step in and clog justice by 
preventing the state authorities from carrying out this 
constitutional provision, then I do claim that we have 
the right to make such interference an offense against 
the United States.

Cong. Globe, 42d Cong., 1st Sess. 514 (Rep. Poland). 

Analogously, Senator Morton stated, "If a state fails to 

secure to a certain class of people the equal protection of the 

laws, it is exactly equivalent to denying such protection. 

Whether the failure is willful or the result of inability can 

make no difference." Id. at App. 251 (Sen. Morton). Many 

other members of Congress expressed similar views.12 The 

Court should give effect in this case to Congress’s clearly 

expressed intent to provide a remedy when an organized 

mob overwhelms law enforcment authorities and prevents 

them from protecting individual rights.

12See id. at 428 (Rep. Beatty) (stating that the State can deny equal 
protection through either lack of power or inclination); id. at 459 
(Rep. Cobum) (stating that a private conspiracy to fetter arrest denies 
equal protection); id. at 481-82 (Rep. Wilson) (stating that Congress 
has power to enact protective legislation when a State is unable to 
execute its laws equally); id. at App. 315 (Rep. Burchard) (stating that 
hindrance of state’s ability to secure equality of protection violates the 
statute).



27

II. CLASS ANIMUS IS NOT A REQUIRED ELEMENT
OF A HINDRANCE CLAIM

Defendants’ intent to deprive women of their 

constitutional right to abortion constitutes invidiously 

discriminatory class animus. Point III., infra. However, 

under § 1985(3)’s hindrance clause, class animus is not a 

necessary element of plaintiffs’ claim. Where a conspiracy 

acts against the state to impair any group’s equal enjoyment 

of the state’s affirmative legal protection, Congress provided 

a remedy in the hindrance clause of § 1985(3).

The class animus requirement is not explicit in the text 

of § 1985(3). Unlike 42 U.S.C. §§ 1981 and 1982, which 

grant all citizens the exercise of certain rights as are 

"enjoyed by white citizens," § 1985(3) does not by its terms 

prohibit only racial discrimination. The deprivation clause 

of § 1985(3) applies to "any persons or class of persons," 

and the hindrance clause protects "all persons."

The limitation of § 1985(3) coverage to purely private 

conspiracies acting with "some racial, or perhaps otherwise 

class-based invidiously discriminatory animus" is a judicial 

construction of the word "equal" in the first clause of 

§ 1985(3). Griffin, 403 U.S. at 102. In determining that



28

the language of the first clause of § 1985(3) did not preclude 

its application to purely private conspiracies, the Court in 

Griffin expressed concern about "[t]he constitutional shoals 

that would lie in the path of interpreting § 1985(3) as a 

general federal tort law." Id. The Court avoided such a 

sweeping interpretation of that clause by identifying in the 

legislative history some indications that, as to purely private 

conspiracies, a requirement of class animus inhered in the 

statute’s guarantee of "equal protection, or equal privileges 

and immunities." Id .13

Griffin's construction of the term "equal" in the 

deprivation clause as prohibiting only invidious class animus 

does not apply to the hindrance clause. This difference

13Griffin relied on legislative history in construing "equal 
protection" because the phrase is not defined in the text of § 1985(3). 
But that phrase is defined in another provision of the 1871 Act in a 
manner supporting the conclusion that no invidious animus need be 
shown for hindrance claims. Section 3 of the unconsolidated version 
of the 1871 Act "deemed” it to be "a denial ... of the equal protection 
of the laws” for a State to be unable to protect "any portion or class of 
the people" from a conspiracy to deprive them of their constitutional 
"rights, privileges, or immunities, or protection." Section 3 was 
aimed, among other things, at "insurrection, domestic violence, 
unlawful combinations or conspiracies" that "obstruct or hinder the 
execution of the laws," and authorized the President to use federal 
military force to suppress the insurrection. Thus, § 3 addressed 
circumstances more extreme than but parallel to those described in the 
hindering clause of § 2 of the 1871 Act, (§ 1985(3)). The statutory 
reference to a "portion" of the people suggests that all types of people 
— whether or not otherwise specially protected by the constitution or 
statutes — may seek remedies under the hindrance clause.



29

derives from the distinction between the constitutional 

concepts on which each clause is based. An obligation to 

give or secure "equal protection of the laws" is, in its most 

literal sense, an affirmative requirement that the state equally 

enact and apply its laws to all persons unless it has a 

legitimate reason for distinguishing among persons. It 

does not depend on invidious animus, whether based on 

race, gender, or some other "suspect" characteristic. This 

is the constitutional concept referred to in the hindrance 

clause of § 1985(3), and it applies only where the state is 

somehow involved. In contrast, the constitutional concept of 

refraining from depriving persons of "equal protection of the 

laws" is also applicable to purely private conduct, through 

legislation, as a negative prohibition on certain invidiously 

motivated action. This is the concept referred to in the 

private deprivation clause of § 1985(3). Thus, while private 

conspirators’ deprivation of rights are guaged by their 

animus, see Griffin, 403 U.S. at 102, conspiracies causing



30

the government to fail to secure legal protection should not 

be.w

The legislative history of § 1985(3) shows Congress’s

intent, where equality of legal protection by government was

at stake, to include all groups within the statute’s coverage.

Representative Buckley explained:

The proposed legislation is not intended to be partisan 
in its beneficent operations. It is not to protect 
Republicans only in their property, liberty, and lives, 
but Democrats as well, not the colored only, but the 
whites also; yes, even women and children, all races 
and all classes, will be benefitted alike, because we are 
simply contending for good government and righteous 
laws.

Id. at 190. Representative Lowe stated, early in the debates, 

"[e]very consideration of justice and good faith requires that 

protection be given to all classes in all States; to persons of 

every complexion and of whatever politics." Id. at 376 

(emphasis added). Representative (later President) Garfield 

spoke in favor of equal laws and equal administration of 

them in terms that reflect the right of all persons to equal 14

14The Court’s comment in Griffin that it "need not decide ... 
whether a conspiracy motivated by invidiously discriminatory intent 
other than racial bias would be actionable under the portion o f 
§ 1985(3) before us," 403 U.S. at 102 n.9 (emphasis added), suggests 
that the animus analysis differs under other portions of the statute, 
such as the hindrance clause at issue here.



31

governmental protection:

It is not required that the laws of a State shall be 
perfect. They may be unwise, injudicious, even unjust; 
but they must be equal in their provisions, like the air 
of heaven, covering all and resting upon all with equal 
weight. The laws must not only be equal on their face, 
but they must be so administered that equal protection 
under them shall not be denied to any class of citizens, 
either by the courts or the executive officers of the 
State.

Cong. Globe, 42d Cong., 1st Sess. App. 153 (emphasis 

added). Representative Barry, using the verb "to secure" 

which appears in the hindrance clause and not the 

deprivation clause, said that the Act sought broadly to 

”secur[e] to all men, white or black, native or adopted 

citizens, an entire, an inviolable, an unquestionable equality 

before the law .” Id. at 267 (Rep. Barry). Thus, where 

legal protection by the government is impaired, i.e. where a 

claim arises under the hindrance clause, invidious class 

animus is not required.

This interpretaion is consistent with the reasoning of 

Griffin. The risk of creating "a general federal tort law" 

prompted the Court in Griffin to emphasize that purely 

private conspiracies are only covered when they act out of 

invidious animus, 403 U.S. at 102. Prohibition of 

conspiracies that hinder the state, without regard to their



32

invidious animus, does not create this risk.

It was Griffin’s recognition that the deprivation clause 

reached private conspiracies that revealed such a threat. The 

hindrance clause, in contrast to the deprivation clause, 

applies only to conspiracies that prevent or hinder the state 

from securing legal protection to persons within its 

boundaries. The primacy of state law enforcement is thus 

explicitly recognized by the clause, and the § 1985(3) 

remedy is available only to supplement obstructed state 

efforts. Far from usurping state tort law, the hindrance 

clause thus acts as a federal safeguard against conspiratorial 

efforts to render state law ineffective.

The presence of the word "equal," from which the 

Court in Griffin derived the class animus requirement, in the 

hindrance clause’s reference to "equal protection of the 

laws" does not mean that class animus is also required under 

that clause. It is true that the Court in Kush v. Rutledge, 

460 U.S. 719, 726 (1983), viewed the absence of the word 

"equal" in the first part of § 1985(2) as "of greatest 

importance" in supporting its holding that no class animus is 

required under that portion of the 1871 Act; there surely can 

be no judicial construction applicable to a term that does not



33

appear. The question remains, however, whether the same 

construction is appropriate every time such term does 

appear.13 In Kush, as in Griffin, the Court’s analysis focused 

on the risk of "extending] federal authority and displacing] 

state control over private conduct." 460 U.S. at 726. 

Because the hindrance clause is aimed at enhancing the 

effectiveness of state law, Kush, like Griffin, suggests that 

the class animus limitation does not apply to hindrance 

claims. 15

15It is more noteworthy that the word "equal" precedes "privileges 
and immunities" in the deprivation clause than that it appears in the 
phrase "equal protection" in both the deprivation and hindrance 
clauses. These statutory terms derive from the Fourteenth 
Amendment, albeit loosely, see Griffin, 403 U.S. at 97, but there is an 
"extra equal" in the deprivation clause only, and not in the hindering 
clause.



34

ID. OPERATION RESCUE’S INVIDIOUS ANIMUS
AGAINST WOMEN SATISFIES ANY CLASS
ANIMUS REQUIREMENT THAT MIGHT APPLY

If the Court determines that class animus must be shown 

even under the hindrance clause, the decision below should 

be affirmed because Operation Rescue acted with animus 

against women seeking abortions. This Court has yet to 

define the precise scope of the class animus requirement 

under § 1985(3). The Court held in Griffin, 403 U.S. at 

102, that a conspiracy motivated by racial animus violated 

the statute, but held in Carpenters, 463 U.S. at 835, that a 

conspiracy motivated by economic animus against non- 

unionized workers did not. Griffin left open what kinds of 

non-racial animus might be actionable, 403 U.S. at 102, and 

Carpenters similarly dealt with the particular conspiracy 

before the Court without laying out general principles for 

evaluating defendants’ motivation under § 1985(3).

Carpenters explicitly declined to decide whether the statute 

forbids the conspiracies described by Senator Edmunds in 

the congressional debates, such as those directed at classes 

because of their political views or religion. 463 U.S. at



35

837.16 Instead, the Court found no evidence that the Klan 

"had a general animus against either labor or capital, or .... 

against enterprising persons trying to better themselves," id. 

at 838, and out of reluctance to "extend § 1985(3) into the 

economic life of the country in a way that we doubt the 

1871 Congress would have intended," id. at 837, refused to 

read the statute to prohibit defendants’ pro-union animus. 

Id.

The district court in this case found invidious class 

animus on the ground that "[plaintiffs’ members and 

patients constitute a subset of a gender-based class," with 

discrete, insular and immutable characteristics. National 

Organization fo r  Women v. Operation Rescue, 726 F. Supp. 

at 1492. The court also described Operation Rescue’s 

conduct as "a conspiracy to deprive women seeking

16Senator Edmunds explained, in now-familiar terms, his 
understanding of

that equality of protection ... which the Constitution of the 
United States gives.... [I]f, in a case like this, it should appear 
that this conspiracy was formed against this man because he was 
a Democrat, if you please, or because he was a Catholic, or 
because he was a Methodist, or because he was a Vermonter ... 
then this section would reach it.

Cong. Globe, 42d Cong. 1st Sess. 567. In his view, only in instances 
of purely personal malice, such as "a neighborhood feud of one man 
or set of men against another," would the statute not apply. Id.



36

abortions of their rights guaranteed by law Id. at 1493. 

The Fourth Circuit properly upheld the finding of gender- 

based animus, recognizing that "animus against classes 

defined by ‘race, national origin and sex’ meet [the] 

requirement of class-based animus within [the] meaning of 

1985(3)," 914 F.2d at 585, (following Buschi v. Kirven, 775 

F.2d 1240, 1257 (4th Cir. 1985)). Findings of class animus, 

like findings of intent, are "peculiarly factual issues for the 

trier of fact." Pullman-Standard v. Swint, 456 U.S. 273, 

288 (1982), (quoting U.S. v. Yellow Cab Co., 338 U.S. 338, 

341 (1949)). The district court’s findings, affirmed by the 

court of appeals, are not "clearly erroneous" and must 

therefore be accepted by this Court. Fed. R. Civ. P. 52(a).

The class animus motivating Operation Rescue’s 

conspiracy meets even the most restrictive class-animus test 

that could fairly be derived from the statute, this Court’s 

prior § 1985(3) cases, and the legislative history. At a 

minimum, § 1985(3) prohibits conspiracies motivated by 

animus toward groups, including women, that are specially 

protected under the Fourteenth Amendment. Neither 

Petitioners nor the United States contends that conspiracies 

motivated by animus against women are not covered. The



37

1871 Act was written in part to enforce the Fourteenth 

Amendment, which affords special protection to women.17

The distinction that petitioners, and amici in their 

support, attempt to draw between animus against women and 

animus against abortion is both factually and legally 

untenable. As a factual matter, only women have abortions. 

Women’s procreative capacity is a fundamental aspect of 

their gender identity. In recognition of this close nexus 

between pregnancy-related conditions and gender, Congress 

in the context of Title VII of the Civil Rights Act of 1964 

has as a matter of law defined discrimination based on 

preganancy-related conditions as sex discrimination. Under 

Title VII, discrimination because of "pregnancy, childbirth, 

or related medical conditions" is discrimination "because of 

sex." 42 U.S.C. §2Q00e(k).18

17The Court’s failure in Griffin, 403 U.S. at 102, to assume that 
gender bias, too, would necessarily be prohibited under a statute 
enforcing the Fourteenth Amendment may be explained by the fact that 
at that time the Court had not yet recognized women as a class entitled 
to special constitutional protection. See, Frontiero v. Richardson, 411 
U.S. 677 (1973).

l8In am ending Title V II to prohibit discrimination based on 
pregnancy-related conditions, Congress expressly rejected the 
contention defendants here advance that abortion is an "activity" 
somehow separable from the gender of women who seek it. In 
overturning General Electric Company v. Gilbert, 429 U.S. 125 
(1976), Congress codified the "commonsense [notion] that since only 
women can become pregnant, discrimination against pregnant people is



38

Because it is a question of statutory construction 

whether anti-abortion animus is sex-based animus under the 

Civil Rights Act of 1871, the Congressional definition of 

sex discrimination in the context of Title VII should be 

applied. Abortion is a pregnancy-related condition. It is 

inconceivable that Congress would prohibit an adverse 

employment action on the basis of abortion, yet permit it as 

the basis for conspiratorial mob action.19

Griffin looked to the legislative history of § 1985(3) 

when it identified the requirement class animus, 403 U.S. at 

102. That history is an additional source of guidance in 

identifying the requirement’s scope. The Congressional 

debates identified in Griffin as the source of the class animus

necessarily discrimination against women...." Newport News 
Shipbuilding & Dry Dock v. EEOC, 462 U.S. 669, 679 n.17 (1983) 
(quoting 123 Cong. Rec. 10581 (1977) (remarks of Rep. Hawkins)).

19The Solicitor General’s reliance on Geduldig v. Aiello, 417 U.S. 
484 (1974), is inappropriate for three reasons. First, the Fourteenth 
Amendment does not place a ceiling on what Congress can do to 
redress inequality, Katzenbach v. Morgan, 384 U.S. 641 (1966), so 
the meaning of class animus is a matter of statutory, not constitutional, 
interpretation. Second, the Court in Geduldig granted deference to the 
state’s interest in maintaining an economically viable insurance 
program, and no similar deference is owed to a private conspiracy 
seeking to impede the exercise of fundamental rights. Third, that case 
involved withholding benefits, not affirmatively interfering with the 
exercise of a right. The "distinction between benefits and burdens is 
more than one of semantics," Nashville Gas Co. v. Satty, 434 U.S. 
136, 142 (1977). If a government employer had discharged Aiello for 
becoming pregnant, it would have violated equal protection.



39

requirement, see 403 U.S. at 102, were those discussing

Representative Shellabarger’s amended version of § 1985(3).

These debates reflect Congress’ understanding that the

classes protected by the statute encompass more than racial

classes. Definitions of class animus tied to any number of

invidious distinctions, such as a group’s historical experience

of discrimination, its political vulnerability, or even the

constitutional importance of the rights it seeks to exercise are

all consistent with the legislative history of the statute.

Representative Shellabarger introduced the Bill as

amended to reflect Congress’s intention that the deprivation

clause remedy not all conspiratorial deprivations of rights,

but only those with invidious animus:

The object of the amendment is, as interpreted by its 
friends who brought it before the House, so far as I 
understand it, to confine the authority of this law to the 
prevention of deprivations which shall attack the 
equality of rights of American citizens; that any 
violation of the right, the animus and effect of which 
is to strike down the citizen, to the end that he may not 
enjoy equality of rights as contrasted with his and other 
citizens’ rights, shall be within the scope of the 
remedies of this section.

Cong. Globe, 42d Cong., 1st Sess. 478 (Rep. Shellabarger) 

(emphasis added). No representative ever sought to 

enumerate, much less circumscribe, the classes that would



40

have standing under § 1985(3) for invidiously motivated 

deprivations of their rights. Representative Dunnell listed 

some of the types of invidious animus with which Congress 

was then concerned:

This law is asked for the protection of every class of 
citizens. We demand it not simply for the black man, 
but for the Union men of the South, and even for the 
ex-rebels who would now yield obedience to the 
Government.

Id. at App. 262. Senator Boreman discussed the groups 

which the Fourteenth Amendment empowered the Congress 

to protect by enacting remedies for conspiratorial violations 

of their rights:

It is not restricted to guarantying [aTc] the right of a 
"citizen" of a northern State to go into the South, the 
citizen of a southern State to go into the North, and be 
shielded and protected as such, but it extends to every 
"person," whether he has come from another State or 
not, to every person residing anywhere, everywhere, 
within the United States. So that while, before this 
amendment, if there was any question whether there 
were any class of persons in this country over whom the 
protection of the Constitution of the United States was 
not extended, there cannot now be any longer any 
question on that subject.

Id. at App. 229. The few Congressmen who objected to the 

apparent breadth of the protected classes did not attempt to 

amend the Bill to protect against racial discrimination only, 

or to cover only those groups the Ku Klux Klan was actually



41

attacking at the time, but simply advocated that the Bill not 

be passed.20

The understanding of Congress, both supporters and 

detractors, was that the 1871 Act would prohibit invidious 

animus against members of any vulnerable class or group, 

whether its vulnerability derived from immutable 

characteristics, a history of oppression, or a precarious grasp 

on newly bestowed rights, as was true for the freed slaves, 

or from a functional position as a political and cultural 

minority in the midst of a hostile majority, as was true of 

the Northern Republicans. The efforts of Operation Rescue 

to wrest women’s abortion rights from them by mob action 

undermine legal protection when women need it most. 

Women as a class are afforded special protection under the 

federal Constitution and other civil rights statutes. The 

immutable characteristic that distingushes them as a class is 

their procreative capacity. A conspiracy that seeks to

Representative Harris, opposing the Bill, said "[t]here is one 
good feature in this bill; that is, it applies to all." Id. at 484.

For objections to the breadth of the Bill on other bases, see, 
e.g., id. at App. 139 (Rep. McCormick); id. at 572 (Sen. Stockton); 
id. at 576 (Sen. Trumbull).



42

deprive them of legal protection on that ground should not 

go unchecked under § 1985(3).



43

CONCLUSION

For the reasons stated in the foregoing brief of Amicus

Curiae the NAACP Legal Defense and Educational Fund,

Inc., the decision of the United States Court of Appeals for

the Fourth Circuit Court should be affirmed. The LDF

advocates reliance on law to protect equal enjoyment of civil

and constitutional rights. The hindrance clause is a crucial

safeguard for the enforcement of state and local law against

private persons seeking to take law into their own hands

through mob force. The injunction in this case has enhanced

the equal enforcement of state law to all persons in Virginia

without regard to their gender and their exercise of

unpopular rights, and should not be disturbed.

Respectfully submitted,

Julius L. Chambers 
Charles Stephen Ralston 

(Counsel of Record)
Eric Schnapper 
Charlotte Rutherford 
Cornelia T.L. Pillard 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

Attorneys fo r  Amicus Curiae