JAYNE BRAY, ET AL., PETITIONERS V. ALEXANDRIA WOMEN'S HEALTH
CLINIC, ET AL.

   No. 90-985

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Fourth Circuit

   Brief For The United States As Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      I. A conspiracy to deter pregnant women from
         having abortions does not involve the kind of
         class-based animus required by 42 U.S.C.
         1985(3)
         A. Introduction
         B. Opposition to abortion is not an invidious
            class-based discrimination against women
            under Section 1985(3)
         C. Defining the category as "women seeking
            abortions" does not further the correct analysis
            under Section 1985(3)
     II. Obstructing access to a medical facility does not
         without more deprive out-of-state patients of
         the constitutional right of interstate travel
         A. The right to travel interstate is not violated
            in the absence of proof that the defendant
            has purposefully discriminated against persons
            who travel interstate
         B. Petitioners' demonstrations did not violate
            respondents' right to travel interstate
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether a conspiracy to deter pregnant women from obtaining
abortions involves the kind of class-based animus required by 42
U.S.C. 1985(3).

   2. Whether obstructing access to a medical facility deprives
out-of-state patients of their constitutional right of interstate
travel.

                     INTEREST OF THE UNITED STATES

   Various acts of Congress exclude abortion services from the ambit
of federal medical assistance programs.  See, e.g., 20 U.S.C. 1688;
42 U.S.C. 300a-6 (Title X family planning programs);  42 U.S.C. 300z
(Adolescent Family Life Act);  Act of Sept. 30, 1976, Pub. L. No.
94-439, Section 209, 90 Stat. 1434 (Hyde Amendment).  A decision by
this Court that opposition to abortion is a form of gender-based
discrimination could bring those laws into question, on the ground
that they violate equal protection principles underlying the Due
Process Clause by discriminating against women.  The United States
also participated as amicus curiae in two earlier cases involving the
scope of 42 U.S.C. 1985(3), Griffin v. Breckenridge, 403 U.S. 88
(1971), and Great American Federal Savings & Loan Ass'n v. Novotny,
442 U.S. 366 (1979), and was a party in United States v. Guest, 383
U.S. 745 (1966), which involved a closely related federal criminal
statute, 18 U.S.C. 241.  /1/

                               STATEMENT

   1. Petitioner Operation Rescue is an unincorporated association
with the principal goals of preventing abortions and ending the
legalization of abortion.  Operation Rescue seeks to achieve these
goals by, among other means, conducting "rescue" demonstrations at
abortion clinics.  Petitioners also include six individuals who oppose
abortion and its legalization, and who participate in demonstrations
organized and planned by Operation Rescue.  Respondents are nine
abortion clinics located in the greater Washington, D.C., metropolitan
area /2/ and five organizations that seek to establish and preserve
access to abortion.  Pet. App. 16a, 18a-20a.

   During "rescue" demonstrations, petitioners obstruct the entrances
to and exists from an abortion clinic, thereby effectively closing the
clinic temporarily, preventing abortions from being performed for that
period, and "rescuing" the fetuses that would otherwise have been
aborted.  Pet. App. 18a.  The purpose of these demonstrations, as
described in Operation Rescue's literature, is to "intervene between
abortionists and the innocent victims," by "physically blockading
abortion mills with (human) bodies." Id. at 20a (quoting Operation
Rescue, National Day of Rescue -- October 29, 1988 (1988)).  During
such a demonstration, no person -- male or female -- is allowed by the
demonstrators to enter the clinic.  /3/

   2. Respondents brought this action in the United States District
Court for the Eastern District of Virginia, seeking, among other
things, to enjoin petitioners from impeding access to certain medical
facilities.  In their complaint, respondents asserted that petitioners
had violated 42 U.S.C. 1985(3) by conspiring to interfere with
respondents' rights to travel interstate and to obtain abortions.
Respondents included in their complaint pendent state law claims for
trespass, public nuisance, and tortious interference with business
relationships.  Pet. App. 27a.

   Following an expedited hearing, the district court entered a
temporary restraining order, barring petitioners from conducting
demonstrations at certain medical facilities.  Pet. App. 6a.  After a
trial, the court issued a permanent injunction, barring petitioners
from "trespassing on, blockading, impeding, or obstructing access to
or egress from the (listed) premises." Id. at 11a.  The court found
that "(s)ubstantial numbers of women seeking the services of clinics
in the Washington Metropolitan area travel interstate to reach the
clinics," id. at 22a, and held thet petitioners had violated 42 U.S.C.
1985(3) by conspiring "for the purpose, either directly or indirectly,
of depriving women seeking abortions and related medical and
counselling services, of the right to travel," Pet. App. 29a-30a.  /4/

   In reaching that conclusion, the district court acknowledged that,
under this Court's decisions in Griffin v. Breckenridge, 403 U.S. 88
(1971), and United Brotherhood of Carpenters & Joiners v. Scott, 463
U.S. 825 (1983) (Carpenters v. Scott), a plaintiff must prove the
following four elements in order to establish a violation of Section
1985(3):  (1) the defendant engaged in a conspiracy;  (2) the
defendant did so for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws or of equal privileges and immunities under the laws;  (3) a
co-conspirator took some act in furtherance of the conspiracy;  and
(4) a person was thereby injured in his person or property, or was
deprived of a right or privilege enjoyed by a citizen of the United
States.  Pet. App. 27a-28a, citing Griffin v. Breckenridge, 403 U.S.
at 102-103, and Carpenters v. Scott, 463 U.S. at 828-829.  The court
concluded that respondents had easily satisfied the first, third, and
fourth elements of the Griffin test.  Pet. App. 28a-31a.  With regard
to the second element, the court held that "gender-based animus
satisfies the 'purpose' element of Section 1985(3)," and that "a
conspiracy to deprive women seeking abortions of their rights
guaranteed by law is actionable under Section 1985(3)" because
respondents' "members and patients constitute a subset of a
gender-based class." Pet. App. 28a-29a.  The court did not decide
whether petitioners also had violated Section 1985(3) by obstructing
respondents' right to obtain an abortion, noting that respondents'
claim in this regard was "problematic" because of the "likely absence
of state action on these facts," Pet. App. 31a-32a.  See also id. at
31a-33a.  The court also held that respondents were entitled to relief
under their state law trespass and public nuisance theories, but not
on their claim for tortious interference with business relationships.
Id. at 33a-36a.  /5/

   3. Petitioners appealed, and the court of appeals affirmed in a per
curiam opinion.  Pet. App. 1a-9a.  /6/ The court stated that the
district court's "holding that gender-based animus satisfie(d) the
'purpose' element of Section 1985(3) has been forecast by" earlier
Fourth Circuit case law.  Id. at 8a.  Moreover, agreeing with the
Second Circuit, the court held that "blocking access to medical
services provided by abortion facilities which serve an interstate
clientele violates the constitutional right to travel." Pet. App. 8a,
citing New York State NOW v. Terry, 886 F.2d 1339 (2d Cir. 1989),
cert. denied, 110 S. Ct. 2206 (1990).  The court did not decide
whether Section 1985(3) encompasses violations of a right to privacy.
Pet. App. 9a.  /7/

                          SUMMARY OF ARGUMENT

   I. In Griffin v. Breckinridge, 403 U.S. at 102, this Court
concluded that Section 1985(3) requires "some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the
conspirators' action." No such invidiously discriminatory purpose is
present here.  Petitioners do not aim their anti-abortion
demonstrations exclusively at women;  nor do petitioners harbor a
gender-based animus.  Petitioners target their actions at anyone --
male or female -- who is involved in the abortion process.  In fact,
it is more accurate to say that petitioners' demonstrations are
targeted at abortion itself than at persons of any particular gender.

   Opposition to abortion is not a form of gender-based
discrimination, even though only women can have abortions.  Like the
Equal Protection Clause, Section 1985(3) does not provide a remedy for
conduct that only has a disproportionate effect on women;  it requires
proof of invidious discrimination.  Treating women differently because
they seek an abortion is not a form of invidious discrimination on the
basis of gender.  The Court has held that treating women differently
due to pregnancy is not necessarily a form of gender discrimination.
Geduldig v. Aiello, 417 U.S. 484, 496-497 n.20 (1974).  That principle
applies with greater force in the case of abortion, since "(a)bortion
is inherently different from other medical procedures, because no
other procedure involves the purposeful termination of a potential
life." Harris v. McRae, 448 U.S. 297, 325 (1980).

   II. The Court has held that the Constitution protects the right to
travel interstate, and that Section 1985(3) provides a damages remedy
for a violation of that right by private parties.  The Court's cases,
however, have not found that the right to travel interstate is
violated in the absence of purposeful conduct discriminating against
that right.  In this case, the district court did not find that
petitioners hold demonstrations for the principle purpose of
preventing respondents from travelling interstate, nor did the courts
below hold that petitioners' actions discriminate against out-of-state
residents.  Respondents therefore have not proved a violation of their
right to travel interstate.

                               ARGUMENT

   I. A CONSPIRACY TO DETER PREGNANT WOMEN FROM HAVING ABORTIONS DOES
NOT INVOLVE THE KIND OF CLASS-BASED ANIMUS REQUIRED BY 42 U.S.C.
1985(3)

   A. Introduction

   Section 1985(3) of Title 42 does not provide a damages remedy for
all conspiracies that injure a person in the exercise of legal rights.
 /8/ By its terms, Section 1985(3) applies only to those conspiracies
whose "purpose (is to) depriv(e) * * * any person or class of persons
of the equal protection of the laws, or of equal privileges and
immunities under the laws." Two decades ago, in Griffin v.
Breckenridge, this Court interpreted that clause to mean that there
must be "some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action." 403 U.S. at
102 & n.10.  Griffin derived its construction of Section 1985(3) from
its text and from the legislative history of the Ku Klux Klan Act of
1871, ch. 22, 17 Stat. 13, which revealed that Congress did not intend
Section 1985(3) to serve as a general federal tort law.  403 U.S. at
101-102 & n.10.  Applying that class-based animus requirement, Griffin
concluded that allegations of a conspiracy to deprive individuals,
because of their race, of equal protection of the law, or of equal
privileges and immunities under the law, are actionable under Section
1985(3).  403 U.S. at 103.  Since Griffin, this Court reaffirmed the
principle that Section 1985(3) supplies a remedy only for conspiracies
motivated by an invidiously discriminatory animus, stating that this
conclusion represents "the authoritative construction of the statute."
Carpenters v. Scott, 463 U.S. at 835.  See also id. at 849 (Blackmun,
J., dissenting).  See Kush v. Rutledge, 460 U.S. 719, 725-726 (1983);
Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366
(1979).  /9/

   In this case, the district court took two steps in order to
characterize petitioners' motives for its anti-abortion demonstrations
as an "invidiously discriminatory animus." First, the court held that
Section 1985(3) encompasses not only racial animus but gender-based
animus as well.  Pet. App. 28a-29a.  Second, the court ruled that
petitioners' efforts to deter pregnant women from having abortions
constitutes gender-based animus for purposes of Section 1985(3).  Pet.
App. 29a-30a.  The court of appeals endorsed both propositions, albeit
in a summary fashion.  Id. at 8a.  Most of the other courts that have
addressed this question have followed the same analysis.  /10/

   This Court has never decided whether Section 1985(3) reaches
gender-based animus.  /11/ Griffin expressly declined to decide
"whether a conspiracy motivated by invidiously discriminatory intent
other than racial bias would be actionable" under Section 1985(3).
403 U.S. at 102 n.9.  The Court again left that question open in
Carpenters v. Scott, which held that Section 1985(3) does not protect
workers who refuse to joina a union.  The Court wrote that "it is a
close question whether Section 1985(3) was intended to reach any
class-based animus other than animus against Negroes and those who
championed their cause, most notably Republicans." 463 U.S. at 836.

   On the one hand, nothing in the text of Section 1985(3) indicates
an affirmative intention to reach conspiracies based on gender, and it
would be fanciful to ascribe such an intent to the 1871 Congress.  The
immediate object that Congress had in mind for this law was "to combat
the prevalent animus (in the South) against Negroes and their
supporters." Carpenters v. Scott, 463 U.S. at 836.  Beginning in 1866,
the Ku Klux Klan conducted a campaign of assault, terror, and murder
against the newly freed slaves and their sympathizers, and became
virtually a shadow government in the formerly rebellious States
because of the inability or unwillingness of state officials to
control the widespread violence.  "The Klan's goal was to overthrow
Republican Reconstruction policies both by terrorizing local
supporters of those policies in order to place sympathetic Democrats
in office, and when that failed by supplanting the authority of local
officials with mob violence." Id. at 850 n.15 (Blackmun, J.,
dissenting).  /12/ For these reasons, the Court has expressed doubt
that Section 1985(3) "went any farther than its central concern --
combating the violent and other efforts of the Klan and its allies to
resist and to frustrate the intended effects of the Thirteenth,
Fourteenth, and Fifteenth Amendments." Carpenters v. Scott, 463 U.S.
at 837.  On the other hand, the breadth of the terms used in the
statute -- "(a) purpose of depriving * * * any person or class of
persons of the equal protection of the laws, or of equal privileges
and immunities under the laws" -- could be read to encompass
gender-based animus.  /13/

   Here, as in Griffin and Carpenters v. Scott, there is no need to
answer that question in order to resolve this case, because the
judgment below must be reversed for other reasons.  Even if Section
1985(3) is broad enough to reach gender-based animus, the actions
taken by petitioners are not a form of gender-based discrimination.
See pp. 13-20, infra.  Moreover, describing the class here as the
class of "women seeking abortions" does not further the analysis under
Section 1985(3).  See pp. 20-23, infra.  The courts below therefore
erred in concluding that respondents stated a claim against
petitioners that could be redressed under Section 1985(3).

   B. Opposition To Abortion Is Not An Invidious Class-Based
Discrimination Against Women Under Section 1985(3)

   1. Operation Rescue and its members do not aim their anti-abortion
activities exclusively at women.  Rather, as the district court found,
petitioners direct their actions at anyone, whether male or female,
who assists or is involved in the abortion process -- doctors, nurses,
counselors, boyfriends, husbands and family members, staff, and
others.  Pp. 3-4, supra.  Indeed, it is more accurate to say that
petitioners' activities are targeted at the abortion process itself,
rather than at persons of any particular gender.  Petitioners' goal,
the district court noted, is to 'intervene between abortionists and
the innocent victims." Pet. App. 20a (quoting Operation Rescue,
National Day of Rescue -- October 29, 1988 (1988)).  The fact that
Operation Rescue's demonstrations are directed toward and operate
against both men and women is a strong indication that its actions do
not constitute the type of "discrimination" at which Section 1985(3)
was aimed.

   The Fifth Circuit's decision in Mississippi Women's Medical Clinic
v. McMillan, 866 F.2d 788 (1989), is instructive in this respect.
There, abortion protestors picketed a medical clinic that performed
abortions, and the clinic sought to enjoin the picketing under Section
1985(3).  The court concluded that the clinic was not entitled to an
injunction, because the clinic did not show that the protestors acted
with "an invidious discriminatory animus." 866 F.2d at 794.  As the
court explained, "the record indicates that the protestors do not
target their pro-life advocacy at any particular group.  The
protestors (who are made up of both men and women) confront and try to
persuade to their point of view all groups -- men, women of all ages,
doctors, nurses, staff, the female security guards, etc." Ibid.  "In
fact," the Fifth Circuit pointed out, "the animus of the protestors is
to dissuade anyone who contributes to the incidence of abortions."
Ibid.  For these reasons, the Fifth Circuit concluded that the clinic
had failed to show that the abortion protestors were motivated by a
class-based animus, as required by Griffin and Carpenters v. Scott.

   That is likewise the case here, in light of the district court's
factual findings.  "The purpose of these 'rescue' demonstrations," the
district court found, "is to disrupt operations at the target clinic
and indeed ultimately to cause the clinic to cease operations
entirely." Pet. App. 20a.  "By disrupting and blockading family
planning and abortion clinics," the district court also found,
"(petitioners) and their followers hope (i) to prevent abortions, (ii)
to dissuade women from seeking a clinic's abortion services, and (iii)
to impress upon members of society the moral righteousness and
intensity of their anti-abortion views." Ibid.  Those factual
findings, which were not disturbed by the court of appeals, reveal
that the demonstrations conducted by Operation Rescue have as their
motive an opposition to abortion and thus are conducted for a purpose
other than animosity toward women.

   Petitioners' opposition to abortion also cannot be characterized as
gender-based discrimination because that opposition does not implicate
all women.  Rather, as the district court recognized, petitioners'
opposition to abortion implicates only a "subset" of women:  those
women who seek an abortion or abortion counselling.  Pet. App. 29a.
That "subset" is in fact a minority of the class of all women, since
the district court did not find that most women seek an abortion or
abortion counselling.  What is more, it is a matter of common
knowledge that a considerable number of women share petitioners' moral
objections to abortion, and petitioners' demonstrations certainly
cannot be viewed as discriminating against those women.  For these
reasons, the actions petitioners take to prevent clinics from
performing abortions are not motivated by a bias against women and do
not invidiously discriminate against women as a class within the
meaning of Section 1985(3).  As one court has put it:  "(I)f the
animus is directed at a particular class of women, then, by
definition, it is not directed at other classes of women or at women
as a class.  If that is so, then the discrimination cannot be
gender-based, because it separates persons of the same gender from
each other and, obviously, on a basis other than by gender." National
Abortion Fed'n v. Operation Rescue, 721 F. Supp. 1168, 1171 (C.D. Cal.
1989).  Just as there is no gender-specific position concerning other
moral questions, so, too, there is no specifically "male" or "female"
point of view with respect to abortion.

   2. Respondents contend it is irrelevant that petitioners'
demonstrations adversely affect only women who seek abortions or
abortion counselling, instead of substantially all women.  Analogizing
petitioner's actions to a hypothetical conspiracy involving racial
discrimination, respondents note that obstructing access to the polls
could not be defended on the ground that it was directed at only those
blacks who seek to exercise their right to vote.  Br. in Opp. 10.  See
New York State NOW v. Terry, 886 F.2d at 1359-1360.  That analogy is
erroneous, however, for several reasons.

   As explained above, petitioners' demonstrations are not directed
exclusively at the women who seek an abortion or abortion counselling;
 these demonstrations are targeted at everyone -- male or female --
involved in the abortion process.  Respondents also overlook that a
substantial number of women oppose abortion.  That fact distinguishes
this case from Griffin v. Breckenridge, in which there was no
suggestion that a substantial number of blacks opposed granting blacks
the right to vote.  In other words, petitioners' anti-abortion
demonstrations are not a form of gender-based discrimination because
they are aimed at a practice, not at a type of person.

   3. The Second Circuit in New York State NOW v. Terry, 886 F.2d at
1359-1360, and most district courts that have addressed this question
appear to have believed that opposition to abortion is necessarily a
form of gender-based discrimination because only women can have
abortions.  That conclusion, however, rests on a mistaken assumption
-- that actions with a disproportionate effect on women inevitably
discriminate invidiously on the basis of gender.  What is true for
purposes of the Equal Protection Clause is also true in the case of
Section 1985(3):  What transforms action having a disproportionate
effect on women from the byproduct of otherwise legitimate conduct
into invidious discrimination against women per se is the intent to
disadvantage women as a class of individuals.  See Washington v.
Davis, 426 U.S. 229 (1976);  Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-268 (1977);
Personnel Adm'r v. Feeney, 442 U.S. 256, 278-279 (1979).  Section
1985(3) does not require a "specific" or "willful" intent to harm
class members, as this Court noted in Griffin, 403 U.S. at 102 n.10.
At the same time, Section 1985(3) is violated only when an individual
acts, with or without "scienter," 403 U.S. at 102 n.10, for the
purpose of injuring a member of a protected class.  The
"discriminatory purpose" relevant for the Equal Protection Clause and
Section 1985(3) "implies more than intent as volition or intent as
awareness of consequences.  It implies that the decisionmaker * * *
selected or reaffirmed a particular course of action at least in part
'because of,' not merely 'in spite of,' its adverse effects upon an
identifiable group." Personnel Adm'r v. Feeney, 442 U.S. at 279
(citation and footnote omitted).  That is what Griffin meant by its
requirement that there must be "some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators' action." 403 U.S. at 102 & n.10.

   Two cases in which this Court has addressed whether pregnancy-based
discrimination constitutes gender-based discrimination supply a useful
illustration of this point.  For example, in Geduldig v. Aiello, 417
U.S. 484 (1974), this Court rejected the contention that a state
disability insurance program violated the Fourteenth Amendment Equal
Protection Clause by excluding from coverage pregnancy-related
disabilities, even though only women can become pregnant.  The Court
found that the program was "a far cry from cases like Reed v. Reed,
404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973),
involving discrimination based upon gender as such." Geduldig v.
Aiello, 417 U.S. at 496-497 n.20.  This Court reasoned as follows,
ibid.:

         The California insurance program does not exclude anyone from
      benefit eligibility because of gender but merely removes one
      physical condition -- pregnancy -- from the list of compensable
      disabilities.  While it is true that only women can become
      pregnant, it does not follow that every legislative
      classification concerning pregnancy is a sex-based
      classification like those considered in Reed, supra, and
      Frontiero, supra.  Normal pregnancy is an objectively
      identifiable physical condition with unique characteristics.
      Absent a showing that distinctions involving pregnancy are mere
      pretexts designed to effect an invidious discrimination against
      the members of one sex or the other, lawmakers are
      constitutionally free to include or exclude pregnancy from the
      coverage of legislation such as this on any reasonable basis,
      just as with respect to any other physical condition.

         The lack of identity between the excluded disability and
      gender as such under this insurance program becomes clear upon
      the most cursory analysis.  The program divides potential
      recipients into two groups -- pregnant women and nonpregnant
      persons.  While the first group is exclusively female, the
      second includes members of both sexes.  The fiscal and actuarial
      benefits of the program thus accrue to members of both sexes.

Two years later, in General Electric Co. v. Gilbert, 429 U.S. 125
(1976), the Court relied on Geduldig's reasoning in the course of
rejecting a challenge based on Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., to a comparable private disability
plan.  The Court in Gilbert interpreted Geduldig as having held that
"an exclusion of pregnancy from a disability-benefits plan providing
general coverage is not gender-based discrimination at all." 429 U.S.
at 136.  See also id. at 134-135.

   Although Geduldig did not involve Section 1985(3), the Court's
reasoning in that case is applicable here.  In fact, this Court's
analysis in Geduldig applies even more forcefully in the abortion
context.  Here, as in Geduldig, there are two relevant categories --
persons involved in the abortion process, and everyone else -- and
neither class is exclusively female;  each category includes both
women and men.  The analysis in Geduldig therefore strongly shows that
petitioners' demonstrations are attributable to a factor other than
gender-based animus, and, perhaps not surprisingly, as discussed above
the district court's factual findings confirm that hypothesis.  In
sum, just as the insurance programs in Geduldig did not discriminate
on the basis of gender even though only women can become pregnant,
petitioners' opposition to abortion is not gender-based even though
only women can have abortions.  /14/

   To be sure, Congress overruled General Electric Co. v. Gilbert,
supra, by adopting the Pregnancy Discrimination Act of 1978, Pub. L.
No. 95-555, 92 Stat. 2076, which prohibits employment discrimination
on the basis of pregnancy.  42 U.S.C. 2000e(k) (defining
discrimination "because of sex" and "on the basis of sex"' under Title
VII to include discrimination "because of or on the basis of
pregnancy, childbirth, or related medical conditions").  See
International Union, United Automobile, Aerospace & Agric. Implement
Workers of America v. Johnson Controls, Inc., 111 S. Ct. 1196 (1991);
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983).
 Congress has therefore drawn a line for purposes of Title VII that
differs from the one that this Court drew for equal protection
purposes in Geduldig.  For several reasons, however, the rationale of
Geduldig is still applicable in this context.

   First, the Pregnancy Discrimination Act of 1978 by its express
terms did not modify Section 1985(3), which this Court has understood
to be aimed at the same kind of invidious discrimination at which the
Equal Protection Clause is directed.  See Griffin v. Breckenridge, 403
U.S. at 102;  Carpenters v. Scott, 463 U.S. at 829.  Accordingly, the
decision in Geduldig, 417 U.S. at 496-497 n.20, is still directly
relevant.  Moreover, regardless of how the Equal Protection Clause
should be applied in other settings, this case involves abortion,
which is critical to any proper analysis.  Even if the Pregnancy
Discrimination Act tells us that pregnancy-based decisions that
adversely affect women are discriminatory per se, there certainly can
be no doubt that opposition to abortion is not, without more,
gender-based discrimination.  The reason is that "(a)bortion is
inherently different from other medical procedures, because no other
procedure involves the purposeful termination of a potential life."
Harris v. McRae, 448 U.S. 297, 325 (1980).  The Pregnancy
Discrimination Act itself recognizes that point, because it does not
generally compel employers to subsidize abortions for their femal
employees.  42 U.S.C. 2000e(k) ("This subsection shall not require an
employer to pay for health insurance benefits for abortion, except
where the life of the mother would be endangered if the fetus were
carried to term, or except where medical complications have arisen
from an abortion * * *.").

   There are more interests at stake in the abortion decision than
those of the pregnant woman.  The government has a legitimate interest
in protecting both the unborn child and the health of the mother,
Harris v. McRae, 448 U.S. at 324-325;  Roe v. Wade, 410 U.S. 113, 162,
164-165 (1973);  the parents of a pregnant minor have a valid interest
in participating in their daughter's decision whether to carry her
pregnancy to term, Hodgson v. Minnesota, 110 S. Ct. 2926 (1990);  and
the father of the child has a personal interest in the pregnant
woman's decision.  Thus, unlike the condition of being pregnant, the
"right" to have an abortion is not a fact that is specific to one
gender.  Instead, it is a legal right as to which the law can properly
assign different interests to various parties.

   4. Finally, there can be no serious argument that the 42nd
Congress, which passed the Ku Klux Klan Act of 1871, would have
believed that Section 1985(3) could be used to obtain damages for
actions like those challenged here.  The abortion of a fetus after
"quickening" was a crime at common law, and state laws condemning or
limiting abortion were common when that Act was adopted.  In 1871, 28
of 37 States and 8 Territories had such laws.  Roe v. Wade, 410 U.S.
at 132-136;  id. at 174-176 & n.1 (Rehnquist, J., dissenting).  Under
these circumstances, it is safe to say that "the construction of the
statute adopted by the Court of Appeals 'would have amazed the
legislators who voted for it.'" Great American Federal Savings & Loan
Ass'n v. Novotny, 442 U.S. at 385 n.7 (Stevens, J., concurring)
(citation omitted).

   C. Defining The Category As "Women Seeking Abortions" Does Not
Further The Correct Analysis Under Section 1985(3)

   The district court's opinion also could be read as holding that the
class of "women seeking abortions" is a protected class under Section
1985(3).  Pet. App. 29a ("(Respondents') members and patients
constitute a subset of a gender-based class meeting these requirements
(of Griffin).").  Other courts have also defined the protected class
in that manner.  /15/ That description of the class of individuals
affected by petitioners' anti-abortion demonstrations, however, does
not further analysis of the Section 1985(3) question in this case.

   If a Section 1985(3) class could be defined by what its members do
rather than by who its members are, as the district court concluded, a
plaintiff could always (and easily) allege that he is a member of a
class protected by Section 1985(3) merely by claiming that he belongs
to a "class of persons who seek to engage in some action that the
defendants have combined to resist through tortious means." For
example, animal rights advocates could become a class protected by
Section 1985(3) by defining themselves as "individuals who seek to
prevent animal cruelty." Likewise, femal military personnel could
bring themselves under the protection of Section 1985(3) merely by
defining themselves members of a subclass of "women who seek to
participate in combat."

   No material difference exists between the hypothetical classes
mentioned above and the class recognized by the district court of
"women seeking abortions." A class of "women" describes a group with
an immutable characteristic, but a class of "women seeking abortions"
is defined in part by reference to the actions of its members, those
who seek abortions.  That definition is an insufficient basis for
allowing a person to obtain relief under Section 1985(3).  This Court
has determined that a class may not be defined simply by reference to
the fact that its members are victims of a conspiracy or hold beliefs
that differ from ones held by the co-conspirators.  Carpenters v.
Scott, 463 U.S. at 834-835.  See Roe v. Abortion Abolition Society,
811 F.2d 931 (5th Cir.), cert. denied, 484 U.S. 848 (1987).  The Court
wrote in Carpenters v. Scott, 463 U.S. at 850 (citation omitted), that
"the intended victims must be victims not because of any personal
malice the conspirators have toward them, but because of their
membership in or affiliation with a particular class.  Moreover, the
class must exist independently of the defendants' actions;  that is,
it cannot be defined simply as the group of victims of the tortious
act." The approach endorsed below, however, allows a plaintiff to
circumvent that rule by alleging, not that she is the victim of the
defendant's tortious acts, but that she engaged in conduct that
(coincidentally) caused her to fall victim to the defendant's tort.

   Petitioners' opposition to abortion in this respect resembles the
class rejected in Carpenters v. Scott:  workers who refused to join a
union.  463 U.S. at 839.  That category, like the class of "women
seeking abortions" asserted here, was defined by nothing more than a
mutual desire to exercise a legal right, rather than an immutable
characteristic, such as race.  To permit such a "class" to invoke
Section 1985(3) clearly would reduce the class-based animus
requirement adopted in Griffin and reaffirmed in Carpenters v. Scott
to nothing more than a rule of artful pleading, and in the process
would make Section 1985(3) a "general federal tort law," contrary to
that statute's language, purpose, and history.  See Carpenters v.
Scott, 463 U.S. at 834-836;  Griffin v. Breckenridge, 403 U.S. at 102.

   In sum, defining the class as "women seeking abortions" does not
further the analysis, since petitioners conduct demonstrations for the
purpose of stopping clinics from performing abortions, not to injure
women because of their gender.  Even if women are a class protected by
Section 1985(3), defining the relevant class in terms of an activity
in which women alone can engage does not prove that petitioners'
intent is invidious.  The fact remains that abortion is a medical
procedure that fits into a category all by itself, and it is for the
purpose of bringing that singular procedure to a halt that petitioners
hold their demonstrations.  That intent does not satisfy the animus
requirement of Griffin and Carpenters v. Scott.

   II. OBSTRUCTING ACCESS TO A MEDICAL FACILITY DOES NOT WITHOUT MORE
DEPRIVE OUT-OF-STATE PATIENTS OF THE CONSTITUTIONAL RIGHT OF
INTERSTATE TRAVEL

   A. The Right To Travel Interstate Is Not Violated In The Absence Of
Proof That The Defendant Has Purposefully Discriminated Against
Persons Who Travel Interstate

   1. In Griffin v. Breckenridge, this Court ruled that the right to
travel interstate -- what the Court there termed "the 'right to pass
freely from State to State'" -- was proected by the Constitution.  403
U.S. at 106, quoting Twining v. New Jersey, 211 U.S. 78, 97 (1908).
According to Griffin, this Court's decisions have "firmly established
that the right of interstate travel is constitutionally protected,"
that this right "does not necessarily rest on the Fourteenth
Amendment," and that it "is assertable against private as well as
governmental interference." 403 U.S. at 105.  /16/ Finally, Griffin
also concluded that the right to travel interstate "is within the
power of Congress to protect by appropriate legislation." Id. at 106,
citing, inter alia, United States v. Guest, 383 U.S. 745, 759 (1966).

   The district court held that petitioners' demonstrations violate
the rights of women to cross state lines in order to obtain abortions
in the Washington, D.C., area, Pet. App. 30a, and the court of appeals
affirmed that holding, id at 8a.  Significantly, however, there is no
factual finding below that one of petitioners' principal goals is
directly to interfere with respondents' right to travel interstate or
that interfering with respondents' right to travel interstate is a
conscious part of petitioners' strategy of opposing abortion.  Nor did
the courts below conclude that petitioners' actions in any way
discriminated against out-of-state residents.

   By finding a violation of the right to travel interstate in the
absence of any of the above elements, the courts below expanded that
right beyond anything previously recognized in this Court's decisions.
 Most of this Court's recent interstate travel cases "have dealth with
state laws that, by classifying residents according to the time they
established residence, resulted in the unequal distribution of rights
and benefits among otherwise qualified bona fide residents." Attorney
General v. Soto-Lopez, 476 U.S. 898, 903 (1986) (plurality opinion),
citing Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985);
Zobel v. Williams, 457 U.S. 55 (1982);  Sosna v. Iowa, 419 U.S. 393
(1975);  Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974);
Dunn v. Blumstein, 405 U.S. 330 (1972);  Shapiro v. Thompson, 394 U.S.
618 (1969).  Yet as noted above, respondents did not allege that
petitioners' activities somehow classify women seeking abortions
according to their residence, or result in the unequal distribution of
abortions performed in and among the various States represented in the
District of Columbia metropolitan area.

   In the absence of discrimination against out-of-state residents,
this Court has found a violation of the right of interstate travel
only when it was proven that a defendant intended to violate that
right as one of his principal goals.  For example, the Court in
Griffin v. Breckenridge, 403 U.S. at 106 (emphasis added), allowed
plaintiffs to take their interstate travel claim to trial because it
was open for them to prove at trial that "their federal right to
travel interstate was one of the rights meant to be discriminatorily
impaired by the conspiracy, that the conspirators intended to drive
out-of-state civil rights workers from the State, or that they meant
to deter the petitioners from associating with such persons."
Similarly, in United States v. Guest, supra, this Court upheld an
indictment under 18 U.S.C. 241 /17/ that alleged a conspiracy to
interfere with the right to travel.  See 383 U.S. at 757.  In so
doing, the Court explained, id. at 760 (emphasis added):

      (A) conspiracy to rob an interstate traveler would not, of
      itself, violate Section 241.  But if the predominant purpose of
      the conspiracy is to impede or prevent the exercise of the right
      of interstate travel, or to oppress a person because of his
      exercise of that right, then, whether or not motivated by racial
      discrimination, the conspiracy becomes a proper object of the
      federal law under which the indictment in this case was brought.

Under 18 U.S.C. 241, as under Section 1985(3), an effect on
individuals travelling interstate does not suffice to state a claim
based on interference with the right to travel interstate.  /18/

   It is easy to understand why the Court has been careful to limit
the right to interstate travel in the above manner.  If that right
encompassed any activity that had any effect on interstat travel,
almost every public or private action could be transformed into a
violation of the federal constitutional right.  For example, a health
code inspector and restaurant owner who conspire to close a
competitor's restaurant allegedly for health code violations, or two
arsonists who conspire to destroy a restaurant, evidently would be
trenching on the right to travel interstate, because they would have
made it impossible for out-of-state customers to enter a State to do
business with the restaurant owner.  Airline travelers would have a
constitutional cause of action for damages against airline companies
each time two companies conspire to hike their fares on interstate
flights, since higher fares make it more expensive and, hence, more
difficult to travel interstate.  Similarly, lifeguards who go on
strike in order to close a summer beach resort violate the
constitutional rights of every person who would otherwise have
traveled across state lines to spend a vacation at the beach.  The
potential for such claims is limitless.  Cf. Wickard v. Filburn, 317
U.S. 111 (1942).

   Although Griffin acknowledged that the actions of private parties
can give rise to a damages action under Section 1985(3), it would be a
mistake to equate the actions of private parties with those of the
State in all instances.  Cf. United States v. Guest, 383 U.S. at 772
(Harlan, J., concurring in part and dissenting in part) ("There is a
difference in power between States and private groups so great that
analogies between the two tend to be misleading.  If the State
obstructs free intercourse of goods, people, or ideas, the bonds of
the union are threatened;  if a private group effectively stops such
communication, there is at most a temporary breakdown of law and
order, to be remedied by the exercise of state authority or by
appropriate legislation.") That is not to say that a plaintiff must
prove he was in fact deterred from travelling interstate, or that
temporary deprivations are permissible.  On the contrary, "even
temporary deprivations of very important benefits and rights can
operate to penalize migration." Attorney General v. Soto-Lopez, 476
U.S. at 907 (plurality opinion), citing Shapiro, Memorial Hospital v.
Maricopa County, and Dunn, all of which involved residency
requirements.  The point is that ordinary torts should not be deemed
to give rise to a constitutional claim simply because they may have
some effect on persons who travel interstate.

   2. The cases in which the Court has found a violation of the right
to travel in the abortion context are consistent with the limitations
that the Court has imposed on that right elsewhere.  For example, Doe
v. Bolton, 410 U.S. 179 (1973), held invalid a Georgia law excepting
from the State's general criminal abortion law abortions performed on
state residents.  Id. at 184, 200.  Because the statute in Doe
discriminated against out-of-state residents, that case, like
Soto-Lopez, Hooper, Zobel and the other cases cited above, involves
the unequal distribution of rights based on residency classifications.

   In Bigelow v. Virginia, 421 U.S. 809 (1975), the Court struck down
under the First Amendment a Virginia statute prohibiting any person,
by the sale or circulation of any publication, to encourage the
processing of an abortion.  The defendant in Bigelow was the managing
editor of a weekly newspaper that published, in Virginia, a New York
City organization's advertisement that it would arrange low-cost
abortions in New York City.  In holding that law invalid, this Court
stated that it was lawful for Virginia residents to take advantage of
the abortion services advertised in petitioner's newspaper because,
among other reasons, Virginia could not "prevent its residents from
traveling to New York to obtain (abortion) services or * * * prosecute
them for going there." 421 U.S. at 824, citing United States v. Guest,
383 U.S. at 757-759;  Shapiro v. Thompson, 394 U.S. at 629-631;  Doe
v. Bolton, 410 U.S. at 200.  For a State either to "prevent" its
citizens from travelling to another State, or to prosecute them
after-the-fact for making such a trip, would directly and purposefully
interfere with their right of interstate travel in a manner similar to
what transpired in Griffin and Guest.  Indeed, it is particularly
noteworthy that Bigelow focused on those forms of interference with
the right to travel interstate.  Theoretically, a State could
interfere with a woman's right to travel interstate to obtain an
abortion in any number of indirect ways, such as by raising highway
taxes, thereby making it more expensive to travel.  But this Court
steered far clear from recognizing such an indirect, nonpurposeful
violation of the right to travel, perhaps because virtually any State
or private action could trigger a damages action were such claims
allowed.

   B. Petitioners' Demonstrations Did Not Violate Respondents' Right
To Travel Interstate

   In this case, the district court did not find as a fact that
petitioners hold demonstrations for the principal purpose of directly
preventing respondents from exercising their right to travel
interstate, nor did either court below conclude that petitioners'
action discriminated against out-of-state residents.  Petitioners'
actions, according to the court's below, were tortious under Virginia
law, but those actions did not constitute a violation of respondents'
right to travel interstate under the federal Constitution.
Accordingly, the judgment below should be set aside.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   LOWELL V. STURGILL, JR.

      Attorneys

   APRIL 1991

   /1/ The United States, in addition, has participated in the defense
of actions brought against federal officers and employees under 42
U.S.C. 1985(3).  E.g., Martinez v. Winner, 771 F.2d 424 (10th Cir.
1985) (federal prosecutors);  Jafree v. Barber, 689 F.2d 640 (7th Cir.
1982) (FBI agents);  Gillespie v. Civiletti, 629 F.2d 637 (9th Cir.
1980) (U.S. marshals).

   /2/ The Washington metropolitan area encompasses the District of
Columbia;  Prince Georges and Montgomery Counties in Maryland;  and
Arlington County, Fairfax County, the City of Fairfax, the City of
Falls Church, Loudon and Prince William Counties, and the City of
Alexandria in Virginia.  Pet. App. 17a n.2.

   /3/ (W)hile the child-killing facility is blockaded, no one is

      permitted to enter past the rescuers, neither women nor men.
      Doctors, nurses, patients, staff, abortion-bound women, families
      of abortion-bound women -- all are prevented from entering the
      abortuary while the rescue is in progress.

J.A. 25 (Affidavit of Randall Terry) (emphasis added).  The above
quotation also is included in the district court's opinion, except
that the district court's opinion omits the phrase "neither men nor
women." See Pet. App. 20a.

   /4/ The dates for the demonstrations that petitioners had planned
for November 1989 had passed by the time that the district court
issued the permanent injunction.  Nonetheless, relying on the "capable
of repetition, yet evading review" doctrine, the district court ruled
that the case was not moot.  Pet. App. 25a-26a.

   /5/ The permanent injunction was originally set to terminate on
July 31, 1990, but the district court subsequently extended the order
on two occasions.  Pet. App. 57a.  The order is now scheduled to
expire on September 24, 1991.  By its own terms, however, the
injunction may be extended for good cause shown.  Id. at 60a.

   /6/ Respondents appealed the district court's denial of broader
injunctive relief.  The court of appeals upheld the district court's
judgment in this respect, Pet. App. 8a-9a, and respondents did not
seek review in this Court of that aspect of the judgment below.

   /7/ The Fourth Circuit also upheld the district court's refusal to
dismiss the state law claims and to award respondents attorneys fees
and costs.  Pet. App. 9a.

   /8/ As noted above, the district court relied on Section 1985(3)
(along with ancillary state law claims) as a basis for enjoining
future demonstrations by petitioners.  In entering that injunction,
however, the district court did not address the question whether
Section 1985(3) authorizes a district court to award injunctive
relief, as opposed to damages.  In our view, it is doubtful that the
district court had the power under Section 1985(3) to enter an
injunction against petitioners.

   By its terms, Section 1985(3) provides only that a plaintiff "may
have an action for the recovery of damages * * * against any one or
more of the conspirators" (emphasis added).  In this regard, Section
1985(3) differs sharply from 42 U.S.C. 1983, which also derives from
the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13.  See id. Section 1,
17 Stat. 13 (original version of Section 1983);  id. Section 2, 17
Stat. 13-14 (original version of Section 1985(3)).  In contrast to
Section 1985(3), Section 1983 authorizes "action(s) at law, suit(s) in
equity, or other proper proceeding(s) for redress" (emphasis added).
In light of the affirmative provision for damages in Section 1985(3),
the absence of any reference to injunctive relief in that law, and the
contrast between Sections 1983 and 1985(3) with respect to the type of
relief that can be awarded, it is unlikely that Congress authorized
the courts to award injunctive relief when in 1871 it adopted what is
now Section 1985(3).  See Russello v. United States, 464 U.S. 16, 23
(1983) ("(W)here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.");  Gozlon-Peretz v. United
States, 111 S. Ct. 840, 847 (1991);  General Motors Corp. v. United
States, 110 S. Ct. 2528, 2534 (1990).  Moreover, this Court has made
clear that Section 1985(3) provides no substantive rights itself, and
is only remedial.  Carpenters v. Scott, 463 U.S. at 833;  Great
American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372
(1979).  This situation is therefore quite unlike the one that this
Court addressed in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229
(1969).  There, this Court addressed the question whether a remedy
could be fashioned when a statute, 42 U.S.C. 1982, conferred
substantive rights without also authorizing a specific remedy.  By
contrast, here the substantive right must be found elsewhere;  the
only purpose of the statute is to provide a remedy;  and that remedy
by its terms is limited to damages.  Nonetheless, some courts have
held that injunctive relief is available under Section 1985(3).  See
Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 473 (5th Cir.
1970);  Action v. Gannon, 450 F.2d 1227, 1237-1238 (8th Cir. 1971) (en
banc).  Neither case, however, is persuasive.  Mizell relied on a
dictum in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 (1968), and
on Sullivan v. Little Hunting Park, Inc., 396 U.S. at 238-240, which
is inapposite, as explained above.  Action simply relied on Mizell.
Several district courts in cases like this one have entered
preliminary injunctions, see, e.g., NOW v. Operation Rescue, 726 F.
Supp. 300, 305 (D.D.C. 1989), or permanent injunctions, see, e.g., Roe
v. Operation Rescue, 710 F. Supp. 577, 589 (E.D. Pa. 1989), without
addressing the question whether injunctive relief is available under
Section 1985(3).

   This case does not require the Court to answer that question.
Neither court below addressed it;  petitioners did not include it as a
Question Presented in their certiorari petition;  and it does not go
to the jurisdiction of the federal courts to adjudicate this case.
Under these circumstances, there is no reason to resolve that question
here.  See Air Courier Conf. of America v. American Postal Workers'
Union, 111 S. Ct. 913, 917 (1991).  Nonetheless, because federal
officers have been sued under Section 1985(3), see page 2 note 1,
supra, we mention this question in order to ensure that this Court
does not inadvertently resolve it (or suggest that the Court has
resolved it) without the benefit of a complete presentation in an
appropriate case.

   /9/ The Griffin requirement that the defendant act with an
invidiously discriminatory animus does not also demand, for example,
that the plaintiff be a member of a racial minority.  A white civil
rights worker could recover damages under Section 1985(3) if he was
the victim of an assualt motivated by bias against blacks.

   /10/ See, e.g., New York State NOW v. Terry, 886 F.2d at 1358-1359;
 Southwestern Medical Clinics of Nevada, Inc. v. Operation Rescue, 744
F. Supp. 230 (D. Rev. 1989);  Cousins v. Terry, 721 F. Supp. 426, 430
(N.D.N.Y. 1989);  Portland Feminist Women's Health Center v. Advocates
for Life, Inc., 712 F. Supp. 165, 169 (D. Or. 1988);  Roe v. Operation
Rescue, 710 F. Supp. at 581;  New York State NOW v. Terry, 704 F.
Supp. 1247, 1259 (S.D.N.Y.), aff'd, 886 F.2d 1339 (2d Cir. 1989),
cert. denied, 110 S. Ct. 2206 (1990).  Contra Mississippi Women's
Medical Clinic v. McMillan, 866 F.2d 788 (5th Cir. 1989);  National
Abortion Fed'n v. Operation Rescue, 721 F. Supp. 1168, 1171 (C.D. Cal.
1989).  Cf. Roe v. Abortion Abolition Society, 811 F.2d 931 (5th
Cir.), cert. denied, 484 U.S. 848 (1987).

   The courts below did not decide whether Section 1985(3) reaches
violations of a right to privacy.  Pet. App. 9a, 31a-33a.  That
question is materially different from the one that those courts
discussed in this case.  This Court held in Carpenters v. Scott, 463
U.S. at 831-834, that a plaintiff must prove that conspiracy involved
state action when the conspiracy is directed against a right (there,
the First Amendment) that by definition is protected only against
state action.  "(T)he right to an abortion" discerned in Roe v. Wade
would also fit into that category since it was "derived from the Due
Process Clause," Webster v. Reproductive Health Services, 109 S. Ct.
3040, 3058 (1989) (plurality opinon), citing Roe v. Wade, 410 U.S.
113, 164 (1973);  see also Harris v. McRae, 448 U.S. 297, 312 (1980),
which protects individuals only against state action, Carpenters v.
Scott, 463 U.S. at 831-832.

   The lower courts are divided on that question.  The district court
in New York State NOW v. Terry, 704 F. Supp. at 1260, held that
Section 1985(3) encompassed a conspiracy to deny women the right to
have an abortion.  An Eighth Circuit panel came to the same
conclusion, Lewis v. Pearson Foundation, Inc., 908 F.2d 318, 322, but
that opinion was vacated when rehearing en banc was granted, and the
en banc court, by an equally divided vote, affirmed the district
court's judgment dismissing the plaintiff's complaint, 917 F.2d 1077
(1990).  Most district courts have held that Section 1985(3) does not
reach a right to abortion, or have not resolved the issue.  E.g.,
Portland Feminist Women's Health Center v. Advocates for Life, Inc.,
712 F. Supp. at 168;  Roe v. Operation Rescue, 710 F. Supp. at 583.
The Court need not resolve that issue in this case, however, because
the lower courts did not do so.

   /11/ The Members of this Court have divided over this question.
Compare Great American Federal Savings & Loan Ass'n v. Novotny, 442
U.S. at 385 & n.7 (Stevens, J., concurring) (Congress did not envision
that Section 1985(3) would reach claims of gender-based animus), with
id. at 389 n.6 (White, J., dissenting) (Section 1985(3) reaches
gender-based discrimination) and Carpenters v. Scott, 463 U.S. at 853
(Blackmun, J., dissenting) (expressing the view that gender-based
animus was a "class trait()" that met the animus requirement).
Several circuit and district courts have held that Section 1985(3)
reaches gender-based animus.  New York State NOW v. Terry, 886 F.2d at
1358-1359;  Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988);  Life
Ins. Co. of N. Am. v. Reichardt, 591 F.2d 499, 505 (9th Cir. 1979);
Novotny v. Great American Federal Savings & Loan Ass'n, 584 F.2d 1235
(3d Cir. 1978) (en banc), rev'd on other grounds, 442 U.S. 366 (1979);
 Conroy v. Conroy, 575 F.2d 175, 177 (8th Cir. 1978);  pp. 9-10 note
10, supra (collecting district court decisions).  See Long v. Laramie
County Community College Dist., 840 F.2d 743, 750-752 (10th Cir.)
(implicitly assuming that Section 1985(3) reaches gender-based
animus), cert. denied, 488 U.S. 825 (1988).

   /12/ See also, e.g., Briscoe v. LaHue, 460 U.S. 325, 337-340
(1983);  Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 610-611
n.25 (1979);  District of Columbia v. Carter, 409 U.S. 418, 425-429
(1973);  Griffin v. Breckenridge, 403 U.S. at 99-102.

   /13/ The Court has said that "there is some legislative history to
support the view that Section 1985(3) has a broader reach" than
racially based animus alone.  Carpenters v. Scott, 463 U.S. at 836.
In this regard, the Court has pointed to a floor statement of Senator
Edmunds, the manager of the bill on the Senate floor, that "if a
conspiracy were formed against a man 'because he was a Democrat, * * *
or because he was a Catholic, or because he was a Methodist, or
because he was a Vermonter, . . . then this section could reach it.'"
Id. at 836-837, quoting Cong. Globe, 42d Cong., 1st Sess. 567 (1871).
At the same time, the Court has noted that "(t)he provision that is
now Section 1985(3), however, originated in the House.  The narrowing
amendment, which changed Section 1985(3) to its present form, was
proposed, debated, and adopted there, and the Senate made only
technical changes to the bill." Carpenters v. Scott, 463 U.S. at 837.

   /14/ A different question would be presented if respondents proved
that petitioners directed their anti-abortion efforts specifically and
exclusively at women because petitioners held an invidiously
discriminatory animus against women as a class.  Were that true, the
demonstrations put on by petitioners would be simply a pretext for
discriminating against women, and Geduldig v. Aiello, 417 U.S. at
496-497 n.20, indicates that such conduct would amount to gender
discrimination.  Accord General Electric Co. v. Gilbert, 429 U.S. at
135-136.  But respondents made no such allegation in this case;  the
district court made no such finding;  and none of the findings that
the district court did make would support a claim of pretext.  In
fact, the district court expressly found that petitioners were
sincerely committed to protecting the fetus and did not find that
petitioners harbored any animosity toward women as such.  In the
district court's words:  "It is indisputable that all (petitioners)
share a deep commitment to the goals of stopping the practice of
abortion and reversing its legalization." Pet. App. 20a.  Given that
finding, no claim of pretext can be made in this case.

   /15/ See, e.g., Cousins v. Terry, 721 F. Supp. 426, 430 (N.D.N.Y.
1989);  Portland Feminist Women's Health Center v. Advocates for Life,
Inc., 712 F. Supp. at 168;  Roe v. Operation Rescue, 710 F. Supp. at
581.  Contra National Abortion Fed'n v. Operation Rescue, 721 F. Supp.
at 1171-1172.

   /16/ Griffin's statement that the right to travel interstate "does
not necessarily rest on the Fourteenth Amendment," 403 U.S. at 105,
understates the uncertainty in this Court's decisions about the source
of this consitutional right.  Various decisions have located this
right in the Privileges and Immunities Clause of Art.  IV, Section 2,
see Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No.
3,230) (Washington, J., Circuit Justice);  Crandall v. Nevada, 73 U.S.
(6 Wall.) 35, 43-49 (1867);  Paul v. Virginia, 75 U.S. (8 Wall.) 168,
180 (1869);  Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873);
Twining v. New Jersey, 211 U.S. 78, 97 (1908);  Zobel v. Williams, 457
U.S. 55, 78-81 (1982) (O'Connor, J., concurring in the judgment);
Attorney General v. Soto-Lopez, 476 U.S. 898, 920 (1986) (O'Connor,
J., dissenting);  the Privileges and Immunities Clause of the
Fourteenth Amendment, see Edwards v. California, 314 U.S. 160, 177,
181-182 (1941) (Douglas and Jackson, JJ., concurring);  the Commerce
Clause of Art. I, Section 8, Cl. 3, see The Passenger Cases, 48 U.S.
(7 How.) 283 (1849);  Crandall v. Nevada, 73 U.S. (6 Wall.) at 49
(opinion of Clifford, J.);  Edwards v. California, 314 U.S. 160
(1941);  the Due Process Clauses of the Fifth and Fourteenth
Amendments, see Kent v. Dulles, 357 U.S. 116, 127 (1958);  Aptheker v.
Secretary of State, 378 U.S. 500, 505-506 (1964);  Shapiro v.
Thompson, 394 U.S. 618, 671 (1969) (Harlan, J., dissenting);  cf.
Califano v. Aznavorian, 439 U.S. 170, 176 (1978);  Haig v. Agee, 453
U.S. 280, 306-307 (1981);  and the Equal Protection Clause of the
Fourteenth Amendment, see Zobel v. Williams, 457 U.S. at 60 n.6;
Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 n.6 (1985).
See generally Shapiro v. Thompson, 394 U.S. at 630 n.8;  id. at 666
(Harlan, J., dissenting);  United States v. Guest, 383 U.S. at 762-770
(opinion of Harlan, J.).  See Attorney General v. Soto-Lopez, 476 U.S.
at 902 ("The textual source of the constitutional right to travel, or,
more precisely, the right of free interstate migration * * * has
proved elusive.");  Zobel v. Williams, 457 U.S. at 60 n.6 ("The right
to travel and to move from one state to another has long been
accepted, yet both the nature and the source of that right have
remained obscure.").  In sum and in truth, to borrow a metaphor from
Judge Friendly, the constitutional right to travel is a legal
Lohengrin:  no one knows from whence it came.  Cf. IIT v. Vencap,
Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).

   /17/ 18 U.S.C. 241 generally tracks Section 1985(3).  It provides:

         If two or more persons conspire to injure, oppress, threaten,
      or intimidate any inhabitant of any State, Territory, or
      District in the free exercise or enjoyment of any right or
      privilege secured to him by the Constitution or laws of the
      United States, or because of his having so exercised the same;
      or

         If two or more persons go in disguise on the highway, or on
      the premises of another, with intent to prevent or hinder his
      free exercise or enjoyment of any right or privilege so secured
      --

         They shall be fined not more than $10,000 or imprisoned not
      more than ten years, or both;  and if death results, they shall
      be subject to imprisonment for any term of years or for life.

   /18/ See also Shapiro v. Thompson, 394 U.S. at 629, 631 ("the
purpose of deterring the in-migration of indigents cannot serve as
justification for the classification creatd by the one-year waiting
period, since that purpose is constitutionally impermissible.").

   APPENDIX