Bray v. Alexandria Women's Health Clinic National Organization for Women Motion for Leave to File Brief for Respondents on Reargument

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1992

No. 90-985

JAYNE 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

MOTION FOR LEAVE TO FILE BRIEF FOR 
RESPONDENTS ON REARGUMENT

Respondents respectfully move this Court for leave to 
file the attached Brief for Respondents on Reargument. On 
June 8, 1992, this Court restored this case to the calendar. 
119 L. Ed. 2d 561 (1992). Because of the potential 
significance of the recent decision in Planned Parenthood v. 
Casey, 112 S.Ct. 2791 (1992), to the issues in this case; 
because of the potential significance of questions raised at 
oral argument by several members of this Court regarding 
the second clause of 42 U.S.C. § 1985(3), the hindrance



2

clause, Tr. of Oral Arg. 9, 11-12, 22-23, 25, 27, and the 
availability of injunctive relief for violations of § 1985(3), 
Tr. of Oral Arg. 47; and because the briefs submitted prior 
to the argument had not addressed those questions, it would 
assist the Court and prejudice no one to consider this Brief 
for Respondents on Reargument. Accordingly, 
Respondents respectfully move this Court, pursuant to Rule 
25.6, for permission to file the attached Brief.

Respectfully submitted,

JOHN H. SCHAFER* 
LAURENCE J. EISENSTEIN 
STEVEN SEMERARO 
COVINGTON & BURLING 
1201 Pennsylvania Ave., N.W. 
P.O. Box 7566 
Washington, D.C. 20044 
(202) 662-6000

DEBORAH A. ELLIS 
MARTHA F. DAVIS 
SALLY F. GOLDFARB 
NOW LEGAL DEFENSE 
& EDUCATION FUND 
99 Hudson Street 
New York, NY 10013 
(212) 925-6635

Attorneys for Respondents 
*  Counsel o f Record

Date: August 14, 1992



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1992

No. 90-985

JAYNE BRAY, OPERATION RESCUE, et a l,
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 RESPONDENTS ON REARGUMENT



I

TABLE OF CONTENTS

SUMMARY OF ARGUMENT......................................  1

ARGUMENT .................................................................. 1
Introduction............................................................... 1
I. PLANNED PARENTHOOD v. CASEY

SUPPORTS RESPONDENTS’ ARGUMENT 
THAT A CONSPIRACY INTENDED TO 
DENY WOMEN CONSTITUTIONAL 
RIGHTS MEETS THE CLASS-BASED 
ANIMUS REQUIREMENT OF § 1985(3). . . 2

II. OPERATION RESCUE ACTS "FOR THE
PURPOSE OF PREVENTING OR 
HINDERING" LAW ENFORCEMENT 
AUTHORITIES FROM SECURING TO 
WOMEN EQUAL PROTECTION OF THE 
LAWS AND THUS VIOLATES THE 
HINDRANCE CLAUSE OF § 1985(3)............  4

III. FEDERAL COURTS HAVE AUTHORITY
TO GRANT INJUNCTIVE RELIEF FOR 
VIOLATIONS OF § 1985(3).............................  9

CONCLUSION 10



11

CASES:

Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873) . . . .  2

Brandon v. Holt, 469 U.S. 464 (1985) ........................... 6

Brewer v. Hoxie Sch. Dist. No. 46, 238 F.2d 91 (8th Cir. 
1956)...............................................................................  5, 9

Briscoe v. LaHue, 460 U.S. 325 (1983) . . ' ...................8

Chapman v. Houston Welfare Rights Org., 441 U.S. 600 
(1979) ..................................................................................  9

Geduldig v. Aiello, 417 U.S. 484 (1 974 )............................. 4

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 
366 (1979) ....................................................................  5, 6

Griffin v. Breckenridge, 403 U.S. 88 (1971)........... 5, 6, 8

Hoyt v. Florida, 368 U.S. 57 (1961) ..............................2

International Union v. Johnson Controls, Inc., I l l  S. Ct. 
1196 (1991)............................................................................ 4

Kush v. Rutledge, 460 U.S. 719 (1983)..................................6

Muller v. Oregon, 208 U.S. 412 (1908) ........................ 2

Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992) . 1-3

Roe v. Wade, 410 U.S. 113 (1973) .................................4

TABLE OF AUTHORITIES



I ll

Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), cert, 
denied, 489 U.S. 1065 (1989) ......................................... 8

Traggis v. St. Barbara’s Greek Orthodox Church, 851 F.2d 
584 (2d Cir. 1988) ............................................................ 8

United Bhd. o f Carpenters v. Scott, 463 U.S. 825 (1983)
7, 8

STATUTES:

Fed. R. Civ. P. 15(b)

28 U.S.C. § 1343 . .

28 U.S.C. § 1343(4)

28 U.S.C. § 1651 . .

42 U.S.C. § 1983 . .

42 U.S.C. § 1985(3)

OTHER AUTHORITIES:

Cong. Globe, 42nd Cong., 1st Sess.................................6-8

Eugene Gressman, The Unhappy History of Civil Rights 
Legislation, 50 Mich. L. Rev. 1323 (1952) ...................  1

Janis L. McDonald, Starting From Scratch: A Revisionist 
View o f 42 U.S.C. § 1985(3) And Class-Based Animus, 19 
Conn. L. Rev. 471 (1987)................................................. 8

. 6 

. 9 

. 9 

. 9 

. 8 

. 1

Ken Gormley, Private Conspiracies and the Constitution, 
64 Tex. L. Rev. 527 (1985).............................................. 8



1

Respondents submit this supplemental brief in 
connection with the reargument of this case in order to 
apply the Court’s decision in Planned Parenthood v. Casey, 
112 S.Ct. 2791 (1992), to the legal issues raised in this 
case and to address questions raised during oral argument 
that were not addressed in the parties’ original briefs.

SUMMARY OF ARGUMENT

ARGUMENT
Introduction

In the aftermath of the Civil War, Congress was 
confronted by lawless mobs seeking to prevent Blacks from 
exercising a wide range of political and economic rights. 
In 1871, Congress enacted the Ku Klux Klan Act ("the 
Act"), including the portion which is currently codified at 
42 U.S.C. § 1985(3), to assist state and local authorities in 
restoring the rule of law to protect newly freed slaves and 
their supporters from mob violence. As the text of § 
1985(3) indicates, Congress intended this section of the Act 
to afford federal protection against mob rule that would 
parallel and reinforce the limits on state power codified in 
the Reconstruction Amendments. See generally Eugene 
Gressman, The Unhappy History o f Civil Rights Legislation, 
50 Mich. L. Rev. 1323 (1952). In 1992, this Court is 
confronted by lawless mobs seeking to prevent women from 
choosing whether to have an abortion. The plain language 
of the Act vests federal courts with the power and the duty 
to assist state and local authorities in preserving the equal 
enjoyment of the rule of law.



2

I. PLANNED PARENTHOOD v. CASEY SUPPORTS 
RE S P O N D E N T S ’ ARGUMENT THAT A 
CONSPIRACY INTENDED TO DENY WOMEN 
CONSTITUTIONAL RIGHTS MEETS THE CLASS- 
BASED ANIMUS REQUIREMENT OF § 1985(3).

In Planned Parenthood v. Casey, this Court affirmed a 
woman’s right to terminate her pregnancy. 112 S.Ct. 2791 
(1992). As the Joint Opinion explained, "[t]he woman’s 
right to terminate her pregnancy before viability is . . .
a component of liberty we cannot renounce." Id. at 2817. 
This recent decision provides additional support for 
respondents’ argument that women are a class within the 
meaning of § 1985(3) and that Operation Rescue acts with 
discriminatory animus when it blocks women from 
obtaining abortions. Resp. Br. 16-35.

Casey demonstrates once again why women are a 
protected class under § 1985(3). Women’s reproductive 
capacity has long served as the rationale to deny women 
equal opportunities in the workforce and the political 
process. See Hoyt v. Florida, 368 U.S. 57, 62 (1961) 
(upholding exclusion of women from jury duty due to 
women’s "special responsibilities" as the "center of home 
and family life"); Muller v. Oregon, 208 U.S. 412, 421 
(1908) (upholding law restricting hours women could work, 
reasoning that, "[because] healthy mothers are essential to 
vigorous offspring, the physical well-being of women 
becomes an object of public interest"); Bradwell v. Illinois, 
83 U.S. (16 Wall) 130, 141 (1873) (Bradley, J.,
concurring) (upholding prohibition on women practicing law 
because "the paramount destiny and mission of woman are 
to fulfill the noble and benign offices of wife and mother"). 
In Casey, this Court recognized that "[tjhese views . . .  are 
no longer consistent with our understanding of the family, 
the individual, or the Constitution." 112 S.Ct. at 2831.



3

Indeed, the Constitution commands that control of 
reproductive capacity is essential in order for women to 
control their destiny:

[T]he liberty of the woman is at stake in a sense 
unique to the human condition and so unique to the 
law. The mother who carries a child to full term 
is subject to anxieties, to physical constraints, to 
pain that only she must bear . . . .  Her suffering is 
too intimate and personal for the State to insist, 
without more, upon its own vision of the woman’s 
role, however dominant that vision has been in the 
course of our history and our culture. The destiny 
of the woman must be shaped to a large extent on 
her own conception of her spiritual imperatives and 
her place in society.

Casey, 112 S.Ct. at 2807.

Casey also confirms that mob violence intended to 
prevent women from exercising a right guaranteed to them 
by the Constitution evinces a class-based animus against 
women. See Resp. Br. 24-35. In Casey, the Court 
recognized that a woman’s right to control her own body is 
a protected liberty interest in part because such control is 
vital if women are "to participate equally in the economic 
and social life of the Nation." 112 S.Ct. at 2809; see also 
id. at 2846 (Blackmun, J., concurring) ("restrictions on a 
woman’s right to terminate her pregnancy also implicate 
constitutional guarantees of gender equality"). When, as 
here, a mob knowingly engages in unlawful activity 
designed to prevent the exercise of the right to control 
one’s body, it strikes at the heart of the effort to make 
women truly "equal." Unlike the usual § 1985(3) case 
where a right available to all is selectively denied to a few 
because of their characteristics, this case involves a right



4

that is uniquely available to the members of the victim 
group because of, and as a counter-weight to, the very 
characteristic that renders the victim group vulnerable to 
being treated unequally in the first place.1 Operation 
Rescue’s conspiracy is an exercise in class-based animus 
because it is intended to perpetuate, by force rather than 
law, the unequal status of women that Roe v. Wade, 410 
U.S. 113 (1973), and Casey sought to ameliorate. See 
International Union v. Johnson Controls, Inc., I l l  S. Ct. 
1196 (1991) (discrimination against women of childbearing 
capacity is discrimination against women).2

II. OPERATION RESCUE ACTS "FOR THE PURPOSE 
OF PREVENTING OR HINDERING" LAW 
ENFORCEMENT AUTHORITIES FROM SECURING 
TO WOMEN EQUAL PROTECTION OF THE LAWS 
AND THUS VIOLATES THE HINDRANCE 
CLAUSE OF § 1985(3).

Two clauses of § 1985(3) apply on the record in this 
case. The arguments have thus far concentrated on the first 
clause of § 1985(3), the deprivation clause, rather than the

1 The fact that not all women would have standing to challenge a 
particular restriction, see Tr. of Oral Arg. 37-39, does not change the 
fact that the targeted class consists of all women. The question of 
standing is distinct from the nature of the class affected and the 
discriminatory animus directed at that class. If the Ku Klux Klan 
blockaded the entrance to an integrated school, only students who were 
registered at that school would have standing to challenge the blockade, 
despite the fact that the class to whom the animus is directed is more 
broadly defined as Blacks and their champions.

2 Casey, like Johnson Controls, addressed burdens imposed on women, 
and thus is distinct from Geduldig v. Aiello, 417 U.S. 484 (1974), 
which dealt only with benefits to pregnant employees. See Resp. Br. 
26-27.



5

second clause of § 1985(3), the hindrance clause, which 
prohibits the hindrance of local authorities:

If two or more persons in any State or Territory 
conspire . . .  for the purpose of preventing or 
hindering the constituted authorities of any State or 
Territory from giving or securing to all the persons 
within such State or Territory the equal protection 
of the laws . . . [any person injured thereby shall 
have a cause of action],

42 U.S.C. § 1985(3) (emphasis added).

Like the deprivation clause, the hindrance clause 
provides a cause of action when private conspiracies 
interfere with the exercise of protected rights. However, as 
discussed at oral argument, the hindrance clause operates 
distinctly from the deprivation clause. Tr. of Oral Arg. 9- 
11, 12, 22-23, 25, 27. See also Great Am. Fed. Sav. & 
Loan Ass’n v. Novotny, 442 U.S. 366, 384 (1979) (Stevens, 
J., concurring); Griffin v. Breckenridge, 403 U.S. 88, 99 
(1971) ("As for interference with state officials, § 1985(3) 
itself contains another clause dealing explicitly with that 
situation") (emphasis added); Brewer v. Hoxie Sch. Dist. 
No. 46, 238 F.2d 91 (8th Cir. 1956) (relying on the 
hindrance clause to enjoin anti-desegregationist 
demonstrators from obstructing school officials’ efforts to 
implement Brown v. Board of Education o f Topeka); see 
generally Br. for NAACP Legal Defense and Educational 
Fund, Inc. as Amicus Curiae ("NAACP LDEF Br."). Like 
the mob violence by the Ku Klux Klan that gave rise to the 
Act, the strategy of Operation Rescue is to hinder state and 
local officials from safeguarding a protected class’s



6

enjoyment of their state and federal rights.3 Operation 
Rescue’s mob violence thus falls squarely within the 
coverage of § 1985(3)’s hindrance clause.4

Congress intended the hindrance clause to provide a 
means of federal relief from organized mobs that 
overwhelm local law enforcement authorities and disable 
them from securing the equal protection of the laws. See, 
e.g., Cong. Globe, 42nd Cong., 1st Sess. 514 (1871) (Rep. 
Poland) (it is an offense if "somebody undertakes to step in 
and clog justice by preventing the State authorities from 
carrying out [the equal protection of the laws]"); id. at 
App. 315 (Rep. Burchard) (stating that hindrance of state’s 
ability to secure equality of protection violates the statute).

Plaintiffs do not need to show that the state participated 
in the conspiracy in any way or agreed with its ultimate 
goals. Griffin, 403 U.S. at 98-99; cf. Novotny, 442 U.S. at 
384 (Stevens, J., concurring) ("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 then have violated

3 The existence of invidious discriminatory class-based animus has been 
shown in preceding deprivation clause arguments. See Resp. Br. 31-35 
supra Point I. In any event, this Court has never held that the 
hindrance clause requires such animus. See Kush v. Rutledge, 460 U.S. 
719, 725-26 (1983); NAACP LDEF Br. 27-33.

4 Respondents produced ample evidence at the district court hearing 
demonstrating that petitioners’ activities constitute a violation of the 
hindrance clause. See 726 F.Supp. 1483, 1489 n.4 (Pet. App. 22a-23a 
n.4); see also Resp. Br. 10-12. In accordance with Fed. R. Civ. P. 
15(b), the issue was tried and thus is to be treated in all respects as if it 
had been raised in the pleadings. See Brandon v. Holt, 469 U.S. 464 
(1985).



7

§ 1985(3)"). As the legislative history indicates, "[w]hether 
[the state’s] failure is willful or the result of inability can 
make no difference." Cong. Globe, 42d Cong., 1st Sess. 
App. 251 (1871) (Sen. Morton). In order to remedy 
constitutional rights guaranteed against state infringement, 
such as the right to abortion, plaintiffs need demonstrate 
only that "the aim of the conspiracy is to influence the 
activity of the State" or "that the state was somehow . . . 
affected by the conspiracy." United Bhd. o f Carpenters v. 
Scott, 463 U.S. 825, 830, 833 (1983) (discussing 
deprivation clause).

Here, an essential element of Operation Rescue’s 
conspiracy is to impede state authorities from enforcing the 
federal right to which it objects. As the record shows, 
Operation Rescue purposefully pursues tactics such as 
keeping secret which clinics will be targeted, physically 
blocking all entrances and exits, defacing clinic property, 
strewing nails on parking lots and public streets, and 
overwhelming local police by the large number of arrests 
that need to be made to restore order, all of which hinder 
state and local authorities from affording the respondents 
equal protection of the laws. See, e.g., 726 F. Supp. 1483, 
1489-90 (Pet. App. 22a-23a); Br. of the Attorneys General 
of the State of New York and the Commonwealth of 
Virginia as Amici Curiae 6, 9-12 (describing Operation 
Rescue pamphlets). Indeed, the City of Falls Church has 
filed an amicus curiae brief in this case reaffirming its 
inability to guarantee women access to health care facilities 
that provide abortion and related services in the face of 
Operation Rescue blockades. Br. for Falls Church, 
Virginia as Amicus Curiae 5-12. Repeatedly faced with 
petitioners’ unannounced, overwhelming demonstrations, 
local municipalities are unable to fulfill their duties without 
reinforcement, and even then are unable to prevent clinic 
closings and the attendant harm to the physical and



8

psychological well-being of the women patients. Id.; see 
Resp. Br. 10-12.

The record thus contains an ample evidentiary basis for 
reliance on the hindrance clause to affirm the federal 
injunction. This Court should give effect to Congress’s 
expressed intent to provide a remedy when an organized 
mob overwhelms law enforcement authorities and prevents 
them from protecting the individual rights of a protected 
class.5

5 In addition, the deprivation clause of § 1985(3) may be violated if a 
conspiracy prevents members of a protected class from enjoying state 
laws prohibiting force and intimidation, and thereby interferes with that 
class’s exercise of a federal constitutional right. Stevens v. Tillman, 
855 F.2d 394, 404 (7th Cir. 1988), cert, denied, 489 U.S. 1055 (1989) 
(Easterbrook, J.). Unlike 42 U.S.C. § 1983 which explicitly confines 
its reach to "rights, privileges or immunities secured by the constitution 
and laws," § 1985(3) speaks in terms of securing the "equal protection 
of the laws," a statutory phrase which includes the protections of state 
law. See Briscoe v. LaHue, 460 U.S. 325, 337-38 (1983); Griffin, 403 
U.S. at 103. Congressional debate confirms this plain reading of the 
text. See, e.g., Cong. Globe, 42d Cong., 1st Sess. 567 (1871) 
(statement of Sen. Edmunds indicating that state law violation, e.g. 
murder, combined with requisite class-based animus, was intended to 
fall within scope of statute). See also Ken Gormley, Private 
Conspiracies and the Constitution, 64 Tex. L. Rev. 527, 587 (1985) 
(concluding that "equal protection of the laws" includes state laws); 
Janis L. McDonald, Starting From Scratch: A Revisionist View o f 42 
U.S.C. § 1985(3) And Class-Based Animus, 19 Conn. L. Rev. 471, 484 
n.50 & 51 (1987) (discussing legislative history of § 1985(3)).

This Court has yet to decide this issue, see Carpenters, 463 U.S. 
at 833-34, while lower courts have reached differing conclusions. See 
Stevens v. Tillman, 855 F.2d at 404; Traggis v. St. Barbara's Greek 
Orthodox Church, 851 F.2d 584, 587-89 (2d Cir. 1988) (discussing 
cases).



9

III. FEDERAL COURTS HAVE AUTHORITY TO
GRANT INJUNCTIVE RELIEF FOR VIOLATIONS
OF § 1985(3).

One member of this Court questioned whether 
injunctive relief is available for violations of § 1985(3), Tr. 
of Oral Arg. 47; see Br. for the United States as Amicus 
Curiae 7-8 n.8. Jurisdiction to grant equitable relief under 
§ 1985(3) is provided by 28 U.S.C. § 1343(4), which 
explicitly authorizes injunctive relief in any case involving 
"civil rights." Section 1343(4) was enacted by Congress in 
1957 to reinforce the remedial aspects of § 1985(3) .6 See 
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 
610 (1979) (discussing legislative history). Moreover, even 
before the enactment of § 1343(4), courts ordered
injunctive relief in § 1985(3) cases pursuant to their general 
powers of equitable relief under the All Writs Act, 28 
U.S.C. § 1651. Brewer v. Hoxie Sch. Dist. No. 46, 238 
F.2d 91, 103 (8th Cir. 1956) (enjoining conspiracy against 
school integration) (citing cases in support of equitable 
relief).

6 In 1874, in connection with the enactment of the Revised Statutes of 
the United States, the remedial and jurisdictional segments of the 1871 
Act were separated. Although this portion of the remedial section is 
codified at 42 U.S.C. § 1985(3), the original jurisdictional provision, as 
amended in 1911, is codified at 28 U.S.C. § 1343.



10

CONCLUSION

For the foregoing reasons, and for the reasons provided 
in Respondents’ Brief dated May 13, 1991, the decision of 
the United States Court of Appeals for the Fourth Circuit 
herein should be affirmed.

Respectfully submitted,

JOHN H. SCHAFER* 
LAURENCE J. EISENSTEIN 
STEVEN SEMERARO 
COVINGTON & BURLING 
1201 Pennsylvania Ave., N.W. 
P.O. Box 7566 
Washington, D.C. 20044 
(202) 662-6000

DEBORAH A. ELLIS 
MARTHA F. DAVIS 
SALLY F. GOLDFARB 
NOW LEGAL DEFENSE 
& EDUCATION FUND 
99 Hudson Street 
New York, NY 10013 
(212) 925-6635

Attorneys fo r  Respondents 
*  Counsel o f Record