506 U.S. 263

JAYNE BRAY, ET AL., PETITIONERS v. ALEXANDRIA WOMEN'S
HEALTH CLINIC ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 90-985

Argued October 16, 1991 Reargued October 6, 1992
Decided January 13, 1993

Respondents, abortion clinics and supporting organizations, sued to enjoin petitioners, an association and individuals who organize and coordinate antiabortion demonstrations, from conducting demonstrations at clinics in the Washington, D.C. metropolitan area. The District Court held that, by conspiring to deprive women seeking abortions of their right to interstate travel, petitioners had violated the first clause of 42 U.S.C. 1985(3), which prohibits conspiracies to deprive, "any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws"; ruled for respondents on their pendent state law claims of trespass and public nuisance; as relief on these three claims, enjoined petitioners from trespassing on, or obstructing access to, specified clinics; and, pursuant to 42 U.S.C. 1988, ordered petitioners to pay respondents attorney's fees and costs on the 1985(3) claim. The Court of Appeals affirmed.

Held:

1. The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics. Pp. 267-278.

(a) Respondents have not shown that opposition to abortion qualifies alongside race discrimination as an "otherwise class-based, invidiously discriminatory animus [underlying] the conspirators' action," as is required under Griffin v. Breckenridge, 403 U.S. 88, 102, in order to prove a private conspiracy in violation of 1985(3)'s first clause. Respondents' claim that petitioners' opposition to abortion reflects an animus against women in general must be rejected. The "animus" requirement demands at least a purpose that focuses upon women by reason of their sex, whereas the record indicates that petitioners' demonstrations are not directed specifically at women, but are intended to protect the victims of abortion, stop its practice, and reverse its legalization. Opposition to abortion cannot reasonably be presumed to reflect a sex-based intent; there are common and respectable reasons for opposing abortion other than a derogatory view of women as a class. This Court's prior decisions indicate that the disfavoring of abortion, although only women [506 U.S. 263, 264] engage in the activity, is not ipso facto invidious discrimination against women as a class. Pp. 268-274.

(b) Respondents have also not shown that petitioners "aimed at interfering with rights" that are "protected against private, as well as official, encroachment," a second prerequisite to proving a private conspiracy in violation of 1985(3)'s first clause. Carpenters v. Scott, 463 U.S. 825, 833. Although the right to interstate travel is constitutionally protected against private interference in at least some contexts, Carpenters makes clear that a 1985(3) private conspiracy must be "aimed at" that right. Ibid. That was not established here. Although respondents showed that substantial numbers of women travel interstate to reach the clinics in question, it was irrelevant to petitioners' opposition whether or not such travel preceded the intended abortions. Moreover, as far as appears from the record, petitioners' proposed demonstrations would erect "actual barriers to . . . movement" only intrastate. Zobel v. Williams, 457 U.S. 55, 60, n. 6. Respondents have conceded that this intrastate restriction is not applied discriminatorily against interstate travelers, and the right to interstate travel is therefore not implicated. Ibid. Nor can respondents' 1985(3) claim be based on the right to abortion, which is a right protected only against state interference, and therefore cannot be the object of a purely private conspiracy. See Carpenters, supra, at 833. Pp. 274-278.

(c) The dissenters err in considering whether respondents have established a violation of 1985(3)'s second, "hindrance" clause, which covers conspiracies "for the purpose of preventing or hindering . . . any State . . . from giving or securing to all persons . . . the equal protection of the laws." A "hindrance" clause claim was not stated in the complaint, was not considered by either of the lower courts, was not contained in the questions presented on certiorari, and was not suggested by either party as a question for argument or decision here. Nor is it readily determinable that respondents have established a "hindrance" clause violation. The language in the first clause of 1985(3) that is the source of the Griffin animus requirement also appears in the "hindrance" clause. Second, respondents' "hindrance" "claim" would fail unless the "hindrance" clause applies to private conspiracies aimed at rights constitutionally protected only against official encroachment. Cf. Carpenters. Finally, the District Court did not find that petitioners' purpose was to prevent or hinder law enforcement. Pp. 279-285.

2. The award of attorney's fees and costs under 1988 must be vacated because respondents were not entitled to relief under 1985(3). However, respondents' 1985(3) claims were not, prior to this decision, "wholly insubstantial and frivolous," Bell v. Hood, 327 U.S. 678, 682-683, so as to deprive the District Court of subject-matter jurisdiction [506 U.S. 263, 265] over the action. Consideration should be given on remand to the question whether the District Court's judgment on the state law claims alone can support the injunction that was entered. P. 285.

914 F.2d 582, reversed in part, vacated in part, and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 287. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 288. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 307. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 345.

Jay Alan Sekulow reargued the cause for petitioners. With him on the briefs were James M. Henderson, Sr., Douglas W. Davis, Thomas Patrick Monaghan, Walter M. Weber, and James E. Murphy.

Deputy Solicitor General Roberts reargued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Paul J. Larkin, Jr., Barbara L. Herwig, and Lowell V. Sturgill, Jr.

Deborah A. Ellis reargued the ccause for respondents. With her on the brief were Martha F. Davis, Sally F. Goldfarb, John H. Schafer, and Laurence J. Eisenstein. John H. Schafer argued the cause for respondents on the original argument. With him on the brief were William H. Allen, Mr. Eisenstein, Alison Wetherfield, and Helen Neuborne.*

[Footnote *] Briefs of amici curiae urging reversal were filed for American Victims of Abortion by James Bopp, Jr., and Richard E. Coleson; for Concerned Women for America by Andrew J. Ekonomou and Mark N. Troobnick; for Feminists for Life of America et al. by Christine Smith Torre and Edward R. Grant; for the Free Congress Foundation by Eric A. Daly and Jordan P. Secola, and George J. Mercer; for the Southern Center for Law & Ethics by Albert L. Jordan; for Woman Exploited by Abortion et al. by Samuel Brown Casey, Victor L. Smith, and David L. Llewellyn; for Daniel [506 U.S. 263, 266] Berrigan et al. by Wendall R. Bird and David J. Myers; and for James Joseph Lynch, Jr., pro se.

Briefs of amici curiae urging affirmance were filed for the Attorney General of New York et al. by Robert Abrams, Attorney General of New York, pro se, O. Peter Sherwood, Solicitor General, Sanford M. Cohen and Shelley B. Mayer, Assistant Attorneys General, and Mary Sue Terry, Attorney General of Virginia, pro se; for the American Civil Liberties Union et al. by Judith Levin, Steven R. Shapiro, John A. Powell, Burt Neuborne, and Elliot M. Mincberg; for Falls Church, Virginia, by David R. Lasso; for the NAACP Legal Defense and Educational Fund, Inc., by Julius L. Chambers, Charles Stephen Ralston, and Eric Schnapper; for the National Abortion Federation et al. by Elaine Metlin, Roger K. Evans, and Eve W. Paul; and for 20 Organizations Committed to Women's Health and Women's Equality by Dawn Johnsen, Lois Eisner Murphy, and Marcy J. Wilder.

Briefs of amici curiae were filed for the National Right to Life Committee, Inc., et al. by James Bopp, Jr., and Barry A. Bostrom; and for George Lucas et al. by Lawrence J. Joyce and Craig H. Greenwood. [506 U.S. 263, 266]

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether the first clause of Rev.Stat. 1980, 42 U.S.C. 1985(3) - the surviving version of 2 of the Civil Rights Act of 1871 - provides a federal cause of action against persons obstructing access to abortion clinics. Respondents are clinics that perform abortions and organizations that support legalized abortion and that have members who may wish to use abortion clinics. Petitioners are Operation Rescue, an unincorporated association whose members oppose abortion, and six individuals. Among its activities, Operation Rescue organizes antiabortion demonstrations in which participants trespass on, and obstruct general access to, the premises of abortion clinics. The individual petitioners organize and coordinate these demonstrations.

Respondents sued to enjoin petitioners from conducting demonstrations at abortion clinics in the Washington, D.C., metropolitan area. Following an expedited trial, the District Court ruled that petitioners had violated 1985(3) by [506 U.S. 263, 267] conspiring to deprive women seeking abortions of their right to interstate travel. The court also ruled for respondents on their pendent state law claims of trespass and public nuisance. As relief on these three claims, the court enjoined petitioners from trespassing on, or obstructing access to, abortion clinics in specified Virginia counties and cities in the Washington, D.C., metropolitan area. National Organization for Women v. Operation Rescue, 726 F.Supp. 1483 (ED Va. 1989). Based on its 1985(3) ruling and pursuant to 42 U.S.C. 1988, the court also ordered petitioners to pay respondents $27,687.55 in attorney's fees and costs.

The Court of Appeals for the Fourth Circuit affirmed, National Organization for Women v. Operation Rescue, 914 F.2d 582 (1990), and we granted certiorari, 498 U.S. 1119 (1991). The case was argued in the October 1991 Term, and pursuant to our direction, see 504 U.S. 970 (1992), was reargued in the current Term.

I

Our precedents establish that, in order to prove a private conspiracy in violation of the first clause of 1985(3),1 a [506 U.S. 263, 268] plaintiff must show, inter alia, (1) that "some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action," Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), and (2) that the conspiracy "aimed at interfering with rights" that are "protected against private, as well as official, encroachment," Carpenters v. Scott, 463 U.S. 825, 833 (1983). We think neither showing has been made in the present case.

A

In Griffin, this Court held, reversing a 20-year-old precedent, see Collins v. Hardyman, 341 U.S. 651 (1951), that 1985(3) reaches not only conspiracies under color of state law, but also purely private conspiracies. In finding that the text required that expanded scope, however, we recognized the "constitutional shoals that would lie in the path of interpreting 1985(3) as a general federal tort law." Griffin, 403 U.S., at 102. That was to be avoided, we said, "by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment," ibid. - citing specifically Representative Shellabarger's statement that the law was restricted "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. . . .," id., at 100 (emphasis in original), quoting Cong. Globe, 42d Cong., 1st Sess., App. 478 (1871). We said that "[t]he language [of 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously [506 U.S. 263, 269] discriminatory animus behind the conspirators' action." 403 U.S., at 102 (emphasis in original).

We have not yet had occasion to resolve the "perhaps"; only in Griffin itself have we addressed and upheld a claim under 1985(3), and that case involved race discrimination. Respondents assert that there qualifies alongside race discrimination, as an "otherwise class-based, invidiously discriminatory animus" covered by the 1871 law, opposition to abortion. Neither common sense nor our precedents support this.

To begin with, we reject the apparent conclusion of the District Court (which respondents make no effort to defend) that opposition to abortion constitutes discrimination against the "class" of "women seeking abortion." Whatever may be the precise meaning of a "class" for purposes of Griffin's speculative extension of 1985(3) beyond race, the term unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the "general federal tort law" it was the very purpose of the animus requirement to avoid. Ibid. As JUSTICE BLACKMUN has cogently put it, the class "cannot be defined simply as the group of victims of the tortious action." Carpenters, supra, at 850 (dissenting opinion). "Women seeking abortion" is not a qualifying class.

Respondents' contention, however, is that the alleged class-based discrimination is directed not at "women seeking abortion," but at women in general. We find it unnecessary to decide whether that is a qualifying class under 1985(3), since the claim that petitioners' opposition to abortion reflects an animus against women in general must be rejected. We do not think that the "animus" requirement can be met [506 U.S. 263, 270] only by maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women. It does demand, however, at least a purpose that focuses upon women by reason of their sex - for example (to use an illustration of assertedly benign discrimination), the purpose of "saving" women because they are women from a combative, aggressive profession such as the practice of law. The record in this case does not indicate that petitioners' demonstrations are motivated by a purpose (malevolent or benign) directed specifically at women as a class; to the contrary, the District Court found that petitioners define their "rescues" not with reference to women, but as physical intervention "`between abortionists and the innocent victims,'" and that "all [petitioners] share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization." 726 F.Supp., at 1488. Given this record, respondents' contention that a class-based animus has been established can be true only if one of two suggested propositions is true: (1) that opposition to abortion can reasonably be presumed to reflect a sex-based intent, or (2) that intent is irrelevant, and a class-based animus can be determined solely by effect. Neither proposition is supportable.

As to the first: some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class - as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners' unlawful demonstrations. [506 U.S. 263, 271] See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850 (1992).

Respondents' case comes down, then, to the proposition that intent is legally irrelevant; that, since voluntary abortion is an activity engaged in only by women,2 to disfavor it is ipso facto to discriminate invidiously against women as a class. Our cases do not support that proposition. In Geduldig v. Aiello, 417 U.S. 484 (1974), we rejected the claim that a state disability insurance system that denied coverage to certain disabilities resulting from pregnancy discriminated on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment. "While it is true," we said, "that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification." Id., at 496, n. 20. We reached a similar conclusion in Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979), sustaining against an Equal Protection Clause challenge a Massachusetts law giving employment preference to military veterans, a class which, in Massachusetts, was over 98% male, id., at 270. "`Discriminatory purpose,'" we said, "implies more than intent as volition or intent as awareness of consequences. It [506 U.S. 263, 272] 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." Id., at 279 (citation omitted).3 The same principle applies to the "class-based, invidiously discriminatory animus" requirement of 1985(3).4 Moreover, two of our cases [506 U.S. 263, 273] deal specifically with the disfavoring of abortion, and establish conclusively that it is not ipso facto sex discrimination. In Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980), we held that the constitutional test applicable to government abortion funding restrictions is not the heightened scrutiny standard that our cases demand for sex-based discrimination, see Craig v. Boren, 429 U.S. 190, 197-199 (1976), but the ordinary rationality standard. See Maher, supra, at 470-471, 478; Harris, supra, at 322-324. [506 U.S. 263, 274]

The nature of the "invidiously discriminatory animus" Griffin had in mind is suggested both by the language used in that phrase ("invidious . . . [t]ending to excite odium, ill will, or envy; likely to give offense; esp., unjustly and irritatingly discriminating," Webster's Second International Dictionary 1306 (1954)) and by the company in which the phrase is found ("there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus," Griffin, 403 U.S., at 102 (emphasis added)). Whether one agrees or disagrees with the goal of preventing abortion, that goal in itself (apart from the use of unlawful means to achieve it, which is not relevant to our discussion of animus) does not remotely qualify for such harsh description, and for such derogatory association with racism. To the contrary, we have said that "a value judgment favoring childbirth over abortion" is proper and reasonable enough to be implemented by the allocation of public funds, see Maher, supra, at 474, and Congress itself has, with our approval, discriminated against abortion in its provision of financial support for medical procedures, see Harris, supra, at 325. This is not the stuff out of which a 1985(3) "invidiously discriminatory animus" is created.

B

Respondents' federal claim fails for a second, independent reason: A 1985(3) private conspiracy "for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," requires an intent to deprive persons of a right guaranteed against private impairment. See Carpenters, 463 U.S., at 833. No intent to deprive of such a right was established here.

Respondents, like the courts below, rely upon the right to interstate travel - which we have held to be, in at least some contexts, a right constitutionally protected against private interference. See Griffin, supra, at 105-106. But all that respondents can point to by way of connecting petitioners' [506 U.S. 263, 275] actions with that particular right is the District Court's finding that "[s]ubstantial numbers of women seeking the services of [abortion] clinics in the Washington Metropolitan area travel interstate to reach the clinics." 726 F.Supp., at 1489. That is not enough. As we said in a case involving 18 U.S.C. 241, the criminal counterpart of 1985(3):

"[A] conspiracy to rob an interstate traveler would not, of itself, violate 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 . . . the conspiracy becomes a proper object of the federal law under which the indictment in this case was brought." United States v. Guest, 383 U.S. 745, 760 (1966).5

Our discussion in Carpenters makes clear that it does not suffice for application of 1985(3) that a protected right be incidentally affected. A conspiracy is not "for the purpose" of denying equal protection simply because it has an effect upon a protected right. The right must be "aimed at," 463 U.S., at 833 (emphasis added); its impairment must be a conscious objective of the enterprise. Just as the "invidiously discriminatory animus" requirement, discussed above, requires that the defendant have taken his action "at least in part `because of,' not merely `in spite of,' its adverse effects [506 U.S. 263, 276] upon an identifiable group," Feeney, 442 U.S., at 279, so also the "intent to deprive of a right" requirement demands that the defendant do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it.6 That was not shown to be the case here, and is on its face implausible. Petitioners oppose abortion, and it is irrelevant to their opposition whether the abortion is performed after interstate travel.

Respondents have failed to show a conspiracy to violate the right of interstate travel for yet another reason: Petitioners' proposed demonstrations would not implicate that right. The federal guarantee of interstate travel does not transform state-law torts into federal offenses when they are intentionally [506 U.S. 263, 277] committed against interstate travelers. Rather, it protects interstate travelers against two sets of burdens: "the erection of actual barriers to interstate movement" and "being treated differently" from intrastate travelers. Zobel v. Williams, 457 U.S. 55, 60, n. 6 (1982). See Paul v. Virginia, 8 Wall. 168, 180 (1869) (Art. IV, 2, "inhibits discriminating legislation against [citizens of other States and] gives them the right of free ingress into other States, and egress from them"); Toomer v. Witsell, 334 U.S. 385, 395 (1948) (Art. IV, 2, "insure[s] to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy"). As far as appears from this record, the only "actual barriers to. . . movement" that would have resulted from petitioners' proposed demonstrations would have been in the immediate vicinity of the abortion clinics, restricting movement from one portion of the Commonwealth of Virginia to another. Such a purely intrastate restriction does not implicate the right of interstate travel, even if it is applied intentionally against travelers from other States, unless it is applied discriminatorily against them. That would not be the case here, as respondents conceded at oral argument.7

The other right alleged by respondents to have been intentionally infringed is the right to abortion. The District Court declined to rule on this contention, relying exclusively upon the right-of-interstate-travel theory; in our view, it also [506 U.S. 263, 278] is an inadequate basis for respondents' 1985(3) claim. Whereas, unlike the right of interstate travel, the asserted right to abortion was assuredly "aimed at" by the petitioners, deprivation of that federal right (whatever its contours) cannot be the object of a purely private conspiracy. In Carpenters, we rejected a claim that an alleged private conspiracy to infringe First Amendment rights violated 1985(3). The statute does not apply, we said, to private conspiracies that are "aimed at a right that is by definition a right only against state interference," but applies only to such conspiracies as are "aimed at interfering with rights . . . protected against private, as well as official, encroachment." 463 U.S., at 833. There are few such rights (we have hitherto recognized only the Thirteenth Amendment right to be free from involuntary servitude, United States v. Kozminski, 487 U.S. 931, 942 (1988), and, in the same Thirteenth Amendment context, the right of interstate travel, see United States v. Guest, supra, at 759, n. 17). The right to abortion is not among them. It would be most peculiar to accord it that preferred position, since it is much less explicitly protected by the Constitution than, for example, the right of free speech rejected for such status in Carpenters. Moreover, the right to abortion has been described in our opinions as one element of a more general right of privacy, see Roe v. Wade, 410 U.S. 113, 152-153 (1973), or of Fourteenth Amendment liberty, see Planned Parenthood of Southeastern Pa., 505 U.S., at 846-851, and the other elements of those more general rights are obviously not protected against private infringement. (A burglar does not violate the Fourth Amendment, for example, nor does a mugger violate the Fourteenth.) Respondents' 1985(3) "deprivation" claim must fail, then, because they have identified no right protected against private action that has been the object of the alleged conspiracy. [506 U.S. 263, 279]

II

Two of the dissenters claim that respondents have established a violation of the second, "hindrance" clause of 1985(3), which covers conspiracies "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." 42 U.S.C. 1985(3).

This "claim" could hardly be presented in a posture less suitable for our review. As respondents frankly admitted at both argument and reargument, their complaint did not set forth a claim under the "hindrance" clause. Tr. of Oral Arg. 27 ("the complaint did not make a hinder or prevent claim"); Tr. of Reargument 33-34.8 Not surprisingly, therefore, neither the District Court nor the Court of Appeals considered the application of that clause to the current facts. The "hindrance" clause issue is not fairly included within the questions on which petitioners sought certiorari, see Pet. for Cert. i; this Court's Rule 14.1(a),9 which is alone enough to exclude it from our consideration.10 Nor is it true [506 U.S. 263, 280] that "[t]he issue was briefed, albeit sparingly, by the parties prior to the first oral argument in this case." Post, at 3 (SOUTER, J., concurring in judgment in part and dissenting in part). To the contrary, neither party initiated even the slightest suggestion that the "hindrance" question was an issue to be argued and decided here.11 That possibility was suggested for the first time by questions from the bench during argument, and was reintroduced, again from the bench, during reargument. (Respondents sought to include a "hindrance"-clause section in their Supplemental Brief on Reargument, but the Court declined to accept that section for filing. See 505 U.S. 1240 (1992).) In sum, the Justices reaching the "hindrance"-clause issue in this case must find in the complaint claims that the respondents themselves have admitted are not there; must resolve a question not presented to, or ruled on by, any lower court; must revise the rule that it is the petition for certiorari (not the brief in opposition and later briefs) that determines the questions presented; and must penalize the parties for not addressing an issue on [506 U.S. 263, 281] which the Court specifically denied supplemental briefing.12 That is extraordinary. See, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 381-382, n. 3 (1992) (citing cases and treatises); Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 97, n. 4 (1991); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277, and n. 23 (1989).

The dissenters' zeal to reach the question whether there was a "hindrance"-clause violation would be more understandable, perhaps, if the affirmative answer they provided were an easy one. It is far from that. Judging from the statutory text, a cause of action under the "hindrance" clause would seem to require the same "class-based, invidiously discriminatory animus" that the "deprivation" clause requires, and that we have found lacking here. We said in Griffin that the source of the animus requirement is "[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities," 403 U.S., at 102 (emphasis in original) - and such language appears in the "hindrance" clause as well.13 At oral argument, respondents conceded applicability of the animus requirement, though they withdrew [506 U.S. 263, 282] this concession on reargument. Without a race- or class-based animus requirement, the "hindrance" clause of this post-Civil War statute would have been an available weapon against the mass "sit-ins" that were conducted for purposes of promoting desegregation in the 1960's - a wildly improbable result.14

Even, moreover, if the "hindrance"-clause claim did not fail for lack of class-based animus, it would still fail unless the "hindrance" clause applies to a private conspiracy aimed at [506 U.S. 263, 283] rights that are constitutionally protected only against official (as opposed to private) encroachment. JUSTICE STEVENS finds it "clear" that it does, see post, at 34, citing, surprisingly, Carpenters. To the extent that case illuminates this question at all, it is clearly contrary to the dissent's view, holding that the "deprivation" clause, at least, does not cover private conspiracies aimed at rights protected only against state encroachment. JUSTICE O'CONNOR simply asserts without analysis that the "hindrance" clause nonetheless applies to those rights, post, at 355-356 - although the operative language of the two clauses ("equal protection of the laws") is identical. JUSTICE SOUTER disposes of the rights-guaranteed-against-private-encroachment requirement, and the class-based animus requirement as well, only by (1) undertaking a full-dress reconsideration of Griffin and Carpenters, (2) concluding that both those cases were wrongly decided, and (3) limiting the damage of those supposed errors by embracing an interpretation of the statute that concededly gives the same language in two successive clauses completely different meaning.15 See post, at 292-303. This [506 U.S. 263, 284] formidable task has been undertaken and completed, we reiterate, uninvited by party or amicus, and with respect to a cause of action not presented in the pleadings, not asserted or ruled upon below, and not contained in the questions presented on certiorari.

Equally troubling as the dissenters' questionable resolution of a legal issue never presented is their conclusion that the lower court found (or, in the case of JUSTICE SOUTER, can reasonably be thought to have found) the facts necessary to support the (nonexistent) "hindrance" claim. They concede that this requires a finding that the protesters' purpose was to prevent or hinder law enforcement officers; but discern such a finding in the District Court's footnote recitation that "the rescuers outnumbered the . . . police officers" and that "the police were unable to prevent the closing of the clinic for more than six (6) hours." National Organization for Women v. Operation Rescue, 726 F.Supp., at 1489, n. 4. See post, at 339 (STEVENS, J., dissenting); post, at 356 (O'CONNOR, J., dissenting); post, at 306 (SOUTER, J., concurring in judgment in part and dissenting in part). This renders the distinction between "purpose" and "effect" utterly meaningless. Here again, the dissenters (other than JUSTICE SOUTER) would give respondents more than respondents themselves dared to ask. Respondents frankly admitted at the [506 U.S. 263, 285] original argument, and even at reargument, that the District Court never concluded that impeding law enforcement was the purpose of petitioners' protests, and that the "hindrance" claim, if valid in law, required a remand. They were obviously correct.16

III

Because respondents were not entitled to relief under 1985(3), they were also not entitled to attorney's fees and costs under 42 U.S.C. 1988. We therefore vacate that award.

Petitioners seek even more. They contend that respondents' 1985(3) claims were so insubstantial that the District Court lacked subject-matter jurisdiction over the action, including the pendent state claims, and that the injunction should therefore be vacated and the entire action dismissed. We do not agree. While respondents' 1985(3) causes of action fail, they were not, prior to our deciding of this case, "wholly insubstantial and frivolous," Bell v. Hood, 327 U.S. 678, 682-683 (1946), so as to deprive the District Court of jurisdiction.

It may be, of course, that even though the District Court had jurisdiction over the state-law claims, judgment on those claims alone cannot support the injunction that was entered. We leave that question for consideration on remand. [506 U.S. 263, 286]

* * *

JUSTICE STEVENS' dissent observes that this is "a case about the exercise of federal power to control an interstate conspiracy to commit illegal acts," post, at 344, and involves "no ordinary trespass," or "picketing of a local retailer," but "the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Act in 1871 and gave it its name," post, at 313. Those are certainly evocative assertions, but, as far as the point of law we have been asked to decide is concerned, they are irrelevant. We construe the statute, not the views of "most members of the citizenry." Post, at 344. By its terms, 1985(3) covers concerted action by as few as two persons, and does not require even interstate (much less nationwide) scope. It applies no more and no less to completely local action by two part-time protesters than to nationwide action by a full-time force of thousands.17 And, under our precedents, it simply does not apply to the sort of action at issue here.

Trespassing upon private property is unlawful in all States, as is, in many States and localities, intentionally obstructing the entrance to private premises. These offenses may be prosecuted criminally under state law, and may also be the basis for state civil damages. They do not, however, give rise to a federal cause of action simply because their objective is to prevent the performance of abortions, any more than they do so (as we have held) when their objective is to stifle free speech. [506 U.S. 263, 287]

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

It is so ordered

Footnotes

[Footnote 1] Section 1985(3) provides as follows:

"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or 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; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the [506 U.S. 263, 268] United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. 1985(3).

[Footnote 2] Petitioners and their amici argue that the intentional destruction of human fetuses, which is the target of their protests, is engaged in not merely by the women who seek and receive abortions, but by the medical and support personnel who provide abortions, and even by the friends and relatives who escort the women to and from the clinics. Many of those in the latter categories, petitioners point out, are men, and petitioners block their entry to the clinics no less than the entry of pregnant women. Respondents reply that the essential object of petitioners' conspiracy is to prevent women from intentionally aborting their fetuses. The fact that the physical obstruction targets some men, they say, does not render it any less "class based" against women - just as a racial conspiracy against blacks does not lose that character when it targets in addition white supporters of black rights, see Carpenters v. Scott, 463 U.S. 825, 836 (1983). We need not resolve this dispute, but assume for the sake of argument that respondents' characterization is correct.

[Footnote 3] JUSTICE STEVENS asserts that, irrespective of intent or motivation, a classification is sex-based if it has a sexually discriminatory effect. Post, at 326-332. The cases he puts forward to confirm this revisionist reading of Geduldig v. Aiello, 417 U.S. 484 (1974), in fact confirm the opposite. Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), cited Geduldig only once, in endorsement of Geduldig's ruling that a facially neutral benefit plan is not sex-based unless it is shown that "distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other." 434 U.S., at 145 (quoting Geduldig, supra, at 496-497, n. 20) (internal quotation marks omitted). Satty said that the Court "need not decide" whether "it is necessary to prove intent to establish a prima facie violation of 703(a)(1)," 434 U.S., at 144, because "[r]espondent failed to prove even a discriminatory effect," id., at 145 (emphasis added). It is clear from this that sex-based discriminatory intent is something beyond sexually discriminatory effect. The Court found liability in Satty "[n]otwithstanding Geduldig," post, at 328, not (as JUSTICE STEVENS suggests) because Geduldig is compatible with the belief that effects alone constitute the requisite intent, but rather because 703(a)(2) of Title VII has no intent requirement. 434 U.S., at 139-141. In his discussion of the (inapplicable) Pregnancy Discrimination Act, 92 Stat. 2076, JUSTICE STEVENS acknowledges that Congress understood Geduldig as we do, see post, at 330-331, and nn. 29-30. As for the cases JUSTICE STEVENS relegates to footnotes: Turner v. Utah Dept. of Employment Security, 423 U.S. 44 (1975), was not even a discrimination case; General Electric Co. v. Gilbert, 429 U.S. 125, 135 (1976), describes the holding of Geduldig precisely as we do; and Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), casts no doubt on the continuing vitality of Geduldig.

[Footnote 4] We think this principle applicable to 1985(3) not because we believe that Equal Protection Clause jurisprudence is automatically incorporated into 1985(3), but rather because it is inherent in the requirement of a class-based animus, i.e., an animus based on class. We do not dispute JUSTICE STEVENS' observation, post, at 326, that Congress "may offer relief from discriminatory effects," without evidence of intent. The question is [506 U.S. 263, 273] whether it has done so, and if we are faithful to our precedents, we must conclude that it has not.

JUSTICE STEVENS and JUSTICE O'CONNOR would replace discriminatory purpose with a requirement of intentionally class-specific (or perhaps merely disparate) impact. Post, at 322-332 (STEVENS, J., dissenting); post, at 350-354 (O'CONNOR, J., dissenting). It is enough for these dissenters that members of a protected class are "targeted" for unlawful action "by virtue of their class characteristics," post, at 352 (O'CONNOR, J., dissenting), see also post, at 354, regardless of what the motivation or animus underlying that unlawful action might be. Accord, post, at 322-323 (STEVENS, J., dissenting). This approach completely eradicates the distinction, apparent in the statute itself, between purpose and effect. Under JUSTICE STEVENS' approach, petitioners' admitted purpose of preserving fetal life (a "legitimate and nondiscriminatory goal," post, at 323 (emphasis added)) becomes the "indirect consequence of petitioners' blockade," while the discriminatory effect on women seeking abortions is now "the conspirators' immediate purpose," ibid. (emphasis added). JUSTICE O'CONNOR acknowledges that petitioners' "target[ing]" is motivated by "opposition to the practice of abortion." Post, at 351.

In any event, the characteristic that formed the basis of the targeting here was not womanhood, but the seeking of abortion - so that the class the dissenters identify is the one we have rejected earlier: women seeking abortion. The approach of equating opposition to an activity (abortion) that can be engaged in only by a certain class (women) with opposition to that class leads to absurd conclusions. On that analysis, men and women who regard rape with revulsion harbor an invidious antimale animus. Thus, if state law should provide that convicted rapists must be paroled so long as they attend weekly counseling sessions; and if persons opposed to such lenient treatment should demonstrate their opposition by impeding access to the counseling centers; those protesters would, on the dissenters' approach, be liable under 1985(3) because of their antimale animus.

[Footnote 5] JUSTICE STEVENS finds "most significant . . . the dramatic difference between the language of 18 U.S.C. 241" and that of 1985(3), in that the former "includes an unequivocal `intent' requirement." Post, at 335. He has it precisely backwards. The second paragraph of 241 does contain an explicit "intent" requirement, but the first paragraph, which was the only one at issue in Guest, see 383 U.S., at 747, does not; whereas 1985(3) does explicitly require a "purpose." As for JUSTICE STEVENS' emphasis upon the fact that 1985(3), unlike 241, embraces "a purpose to deprive another of a protected privilege `either directly or indirectly,'" post, at 335: that in no way contradicts a specific intent requirement. The phrase "either directly or indirectly" modifies "depriving," not "purpose." The deprivation, whether direct or indirect, must still have been the purpose of the defendant's action.

[Footnote 6] To contradict the plain import of our cases on this point, JUSTICE STEVENS presses into service a footnote in Griffin. Post, at 335-336, n. 33. In addressing "[t]he motivation requirement introduced by the word `equal' into . . . 1985(3)," Griffin said that this was not to be confused with a test of "specific intent to deprive a person of a federal right made definite by decision or other rule of law"; 1985(3) "`contains no specific requirement of "wilfulness,'" and its "motivation aspect . . . focuses not on scienter in relation to deprivation of rights, but on invidiously discriminatory animus." Griffin, 403 U.S., at 102, n. 10. This is supremely irrelevant to the present discussion, since (1) we are not considering "the motivation requirement introduced by the word `equal,'" but rather the intent requirement introduced by the word "purpose," and (2) we are not asserting that the right in question must have been "made definite by decision or other rule of law," but only that it must have been "aimed at," with or without knowledge that it is a federally protected right, cf. Screws v. United States, 325 U.S. 91, 103-107 (1945) - a requirement not of "wilfulness," in other words, but only of "purpose." The requisite "purpose" was of course pleaded in Griffin as we specifically noted. See 403 U.S., at 103. JUSTICE STEVENS makes no response whatever to the plain language of Carpenters, except to contend that the same irrelevant footnote 10 reaches forward 12 years in time, to prevent Carpenters from meaning what it obviously says ("aimed at"). Although a few lower courts at one time read the Griffin footnote as JUSTICE STEVENS does, see post, at 336-337, those cases were all decided years before this Court's opinion in Carpenters, which we follow.

[Footnote 7] JUSTICE STEVENS expresses incredulity at the rule we have described. It is, he says, "unsupported by precedent or reason," post, at 333, both of which show he claims, that the right of interstate travel is violated even by "conduct that evenhandedly disrupts both local and interstate travel," post, at 337. We cite right-to-travel cases for our position; he cites nothing but negative Commerce Clause cases for his. While it is always pleasant to greet such old Commerce Clause warhorses as Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), Dean Milk Co. v. Madison, 340 U.S. 349 (1951), and Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945), cited post, at 337, surely they are irrelevant to the individual right of interstate travel we are here discussing. That right does not derive from the negative Commerce Clause, or else it could be eliminated by Congress.

[Footnote 8] These admissions were accurate. The amended complaint alleged, in its two federal causes of action, that petitioners "have conspired to deprive women of their right to travel" and "have conspired . . . for the purpose of denying women seeking abortions . . . their rights to privacy." App. 15-16. These are both "deprivation" claims; neither one makes any allusion to hindrance or prevention of state authorities.

[Footnote 9] JUSTICE SOUTER contends, post, at 290-291, that the "hindrance" clause issue was embraced within question four, which asked: "Are respondents' claims under 42 U.S.C. 1985(3) so insubstantial as to deprive the federal courts of subject matter jurisdiction?" Pet. for Cert. i. This argument founders on the hard (and admitted) reality that "respondents' claims" did not include a "hindrance" claim.

[Footnote 10] Contrary to JUSTICE SOUTER's suggestion, post, at 290-291, the provision of our Rules giving respondents the right in their brief in opposition, to restate the questions presented Rule 24.2, does not give them the power to expand the questions presented, as the Rule itself makes clear. In any event, neither of the questions set forth in the Brief in Opposition fairly [506 U.S. 263, 280] raises the "hindrance" claim. And there is no support whatever for JUSTICE SOUTER's reliance upon the formulation of the question in respondents' brief on the merits, post, at 290, as the basis for deeming the question properly presented - though on the merits, once again, the question referred to by JUSTICE SOUTER is unhelpful.

[Footnote 11] Respondents' brief asserted that, if the Court did not affirm the judgment on the basis of the "deprivation" clause, then a remand would be necessary, so that respondents could "present a number of contentions respecting [their right-to-privacy] claim" which had not been reached below, including the contention that" petitioners, by means of their blockades, had hindered the police in securing to women their right to privacy." Brief for Respondents 43. Petitioners' reply brief responded that the complaint did not contain such a "hindrance" claim, and that there was "no reason to believe" that the "hindrance" clause "would not entail the same statutory requirements of animus and independent rights which respondents have failed to satisfy under the first clause of the statute." Reply Brief for Petitioners 14-15. These were obviously not arguments for resolution of the "hindrance" claim here.

[Footnote 12] We are unable to grasp the logic whereby JUSTICE SOUTER, who would have us conclusively resolve the "hindrance" clause legal issue against petitioners (despite their lack of opportunity to address it both here and below) criticizes our opinion, see post, at 291-292, for merely suggesting (without resolving the "hindrance" clause issue) the difficulties that inhere in his approach.

[Footnote 13] In straining to argue that the "hindrance" clause does not have the same animus requirement as the first clause of 1985(3), JUSTICE STEVENS makes an argument extrapolating from the reasoning of Kush v. Rutledge, 460 U.S. 719 (1983), which held that the animus requirement expounded in Griffin did not apply to a claim under the first clause of 1985(2). Post, at 340-342. But the heart of Kush - what the case itself considered "of greatest importance" - was the fact that Griffin's animus requirement rested on "the `equal protection' language" of 1985(3), which the first clause of 1985(2) did not contain. 460 U.S., at 726. Since the "hindrance" clause of 1985(3) does contain that language, the straightforward application of Kush to this case is quite the opposite of what JUSTICE STEVENS asserts.

[Footnote 14] JUSTICE SOUTER contends the sit-in example is inapposite, because the sit-ins did not "depriv[e] the owners of the segregated lunch counter[s] of any independently protected constitutional right." Post, at 305, n. 10. In the very paragraph to which that footnote is appended, however, JUSTICE SOUTER purports to leave open the question whether the "hindrance" clause would apply when the conspiracy "amount[s] to a denial of police protection to individuals who are not attempting to exercise a constitutional right," post, at 304, n. 9 - such as (presumably) the rights guaranteed by state trespass laws. Certainly the sit-ins violated such state law rights, or else there would have been no convictions. It is not true, in any case, that the sit-ins did not invade constitutional rights, if one uses that term (as JUSTICE SOUTER does) to include rights constitutionally protected only against official (as opposed to private) encroachment. Surely property owners have a constitutional right not to have government physically occupy their property without due process and without just compensation.

JUSTICE SOUTER's citation of Roberts v. United States Jaycees, 468 U.S. 609 (1984), post, at 305, n. 10, and Lane v. Cotton, 12 Mod. 472 (K.B. 1701), post, at 305, n. 10, requires no response. He cites Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), for the proposition that the 1964 Civil Rights Act's elimination of restaurant owners' right to exclude blacks from their establishments did not violate the Due Process or Takings Clauses. Assuredly not. But government regulation of commercial use through valid legislation is hardly comparable to government action that would have been the equivalent of what those conducting the sit-ins did: physically occupy private property, against the consent of the owner, without legal warrant. JUSTICE SOUTER cites Shelley v. Kraemer, 334 U.S. 1 (1948), post, at 306, n. 10, to establish (in effect) that there was, even before the Civil Rights Act, legal warrant for the physical occupation. Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble.

[Footnote 15] JUSTICE SOUTER contends that, even without the animus and rights-guaranteed-against-private-encroachment requirements, the "hindrance" clause will still be "significantly limit[ed]" in scope, covering only "conspiracies to act with enough force . . . to overwhelm the capacity of legal authority to act evenhandedly in administering the law," post, at 300 (emphasis added). JUSTICE STEVENS discerns a similar limitation, see post, 341-342. Only JUSTICE SOUTER attempts to find a statutory basis for it. He argues that, since 1985(1) prohibits a conspiracy to prevent "any person" (emphasis added) from "discharging any duties," 1985(3)'s prohibition of a conspiracy directed against "the constituted authorities" (emphasis added) must be speaking of something that affects more than a single official, post, at 300. This seems to us a complete non sequitur. The difference between "any person" and "constituted authorities" would contain such a significant limitation (if at all) only if the remaining language of the two sections was roughly parallel. But it is not. Section 1985(1), for example, speaks of categorically "prevent[ing]" a person's exercise of his duties, whereas 1985(3) speaks of "preventing or hindering" the constituted authorities. (Emphasis added.) Obviously, one can "hinder" the [506 U.S. 263, 284] authorities by "preventing" an individual officer. If these dissenters' interpretation of 1985(3) were adopted, conspiracies to prevent individual state officers from acting would be left entirely uncovered. (Section 1985(1) applies only to officers of the United States - which is, of course, the basic distinction between the two provisions.)

Neither dissent explains why the application of enough force to impede law enforcement, though not to "overwhelm" or "supplant" it, does not constitute a "hindering"; or, indeed, why only "force," and not bribery or misdirection, must be the means of hindrance or prevention. Nothing in the text justifies these limitations. JUSTICE SOUTER's faith in the "severely limited" character of the hindrance clause also depends upon his taking no position on whether the clause protects federal statutory rights and state-protected rights, post, at 303-304, n. 9.

[Footnote 16] Because of our disposition of this case, we need not address whether the District Court erred by issuing an injunction, despite the language in 1985(3) authorizing only "an action for the recovery of damages occasioned by such injury or deprivation." It is curious, however, that the dissenters, though quick to reach and resolve the unpresented "hindrance" issue, assume without analysis the propriety of the injunctive relief that they approve - though the contrary was asserted by the United States as amicus in support of petitioners, and the issue was addressed by both parties in supplemental briefs on reargument. See Supplemental Brief for Petitioners on Reargument 4-9; Brief for Respondents on Reargument 9.

[Footnote 17] JUSTICE STEVENS chides us for invoking text here, whereas (he says) we rely instead upon "statutory purpose" for our class-based animus requirement - "selectively employ[ing] both approaches to give [ 1985(3)] its narrowest possible construction." Post, at 343, n. 37. That is not so. For our class-based animus requirement we rely, plainly and simply, upon our holding in Griffin, whatever approach Griffin may have used. That holding is (though JUSTICE STEVENS might wish otherwise) an integral part of our jurisprudence extending 1985(3) to purely private conspiracies.

JUSTICE KENNEDY, concurring.

In joining the opinion of the Court, I make these added observations.

The three separate dissenting opinions in this case offer differing interpretations of the statute in question, 42 U.S.C. 1985(3). Given the difficulty of the question, this is understandable, but the dissenters' inability to agree on a single rationale confirms, in my view, the correctness of the Court's opinion. As all recognize, essential considerations of federalism are at stake here. The federal balance is a fragile one, and a false step in interpreting 1985(3) risks making a whole catalog of ordinary state crimes a concurrent violation of a single congressional statute passed more than a century ago.

Of course, the wholesale commission of common state-law crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique way the capacity of a State to maintain order and preserve the rights of its citizens. Such actions are designed to inflame, not inform. They subvert the civility and mutual respect that are the essential preconditions for the orderly resolution of social conflict in a free society. For this reason, it is important to note that another federal statute offers the possibility of powerful federal assistance for persons who are injured or threatened by organized lawless conduct that falls within the primary jurisdiction of the States and their local governments.

Should state officials deem it necessary, law enforcement assistance is authorized upon request by the State to the Attorney General of the United States, pursuant to [506 U.S. 263, 288] 42 U.S.C. 10501. In the event of a law enforcement emergency as to which "State and local resources are inadequate to protect the lives and property of citizens or to enforce the criminal law," 10502(3), the Attorney General is empowered to put the full range of federal law enforcement resources at the disposal of the State, including the resources of the United States Marshals Service, which was presumably the principal practical advantage to respondents of seeking a federal injunction under 1985(3). See 10502(2).

If this scheme were to be invoked, the nature and extent of a federal response would be a determination for the Executive. Its authority to act is less circumscribed than our own, but I have little doubt that such extraordinary intervention into local controversies would be ordered only after a careful assessment of the circumstances, including the need to preserve our essential liberties and traditions. Indeed, the statute itself explicitly directs the Attorney General to consider "the need to avoid unnecessary Federal involvement and intervention in matters primarily of State and local concern." 10501(c)(5).

I do not suggest that this statute is the only remedy available. It does illustrate, however, that Congress has provided a federal mechanism for ensuring that adequate law enforcement resources are available to protect federally guaranteed rights, and that Congress, too, attaches great significance to the federal decision to intervene. Thus, even if, after proceedings on remand, the ultimate result is dismissal of the action, local authorities retain the right and the ability to request federal assistance, should they deem it warranted.

JUSTICE SOUTER, concurring in the judgment in part and dissenting in part.

I

This case turns on the meaning of two clauses of 42 U.S.C. 1985(3) which render certain conspiracies civilly actionable. The first clause (the deprivation clause) covers conspiracies [506 U.S. 263, 289]

"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";

the second (the prevention clause), conspiracies

"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. . . ."

For liability in either instance, the statute requires an "act in furtherance of the . . . conspiracy, whereby [a person] is injured in his person or property, or deprived of . . . any right or privilege of a citizen of the United States. . . ."

Prior cases giving the words "equal protection of the laws" in the deprivation clause an authoritative construction have limited liability under that clause by imposing two conditions not found in the terms of the text. An actionable conspiracy must have some racial or perhaps other class-based motivation, Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), and, if it is "aimed at" the deprivation of a constitutional right, the right must be one secured not only against official infringement, but against private action as well, Carpenters v. Scott, 463 U.S. 825, 833 (1983). The Court follows these cases in applying the deprivation clause today, and to this extent I take no exception to its conclusion. I know of no reason that would exempt us from the counsel of stare decisis in adhering to this settled statutory construction, see Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197 (1991), which Congress is free to change if it should think our prior reading unsound.

II

The meaning of the prevention clause is not thus settled, however, and starting in Part IV I will give my reasons for reading it without any importation of these extratextual conditions from the deprivation clause. First, however, a word [506 U.S. 263, 290] is in order to show that the prevention clause's construction is properly before us, and to explain why the Court is not in a position to cast doubt on that clause's arguable applicability to the facts indicated by the record, in light of the Court's refusal to allow respondents to address this very issue in the supplemental briefing that was otherwise permitted prior to the reargument of this case.

A

Respondents' complaint does not limit their theory of liability to the deprivation clause alone, for it alleges simply that petitioners "have conspired with each other and other parties presently unknown for the purpose of denying women seeking abortions at targeted facilities their right to privacy, in violation of 42 U.S.C. 1985(3)." App. 16.1 Evidence presented at a hearing before the District Court addressed the issue of prevention or hindrance, leading that court to note that the demonstrators so far outnumbered local police that "[e]ven though 240 rescuers were arrested the, police were unable to prevent the closing of the clinic for more than six (6) hours." National Organization for Women v. Operation Rescue, 726 F.Supp. 1483, 1489, n. 4 (ED Va. 1989). The applicability of the prevention clause is fairly included within the questions presented, especially as restated by respondents, see Brief for Respondents i (first question presented);2 Brief in Opposition i; Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 267, n. 12 (1992) (respondent has the right under this Court's Rule 24.2 to [506 U.S. 263, 291] restate the questions presented); see also Pet. for Cert. i (petitioners' fourth question presented).3 The issue was briefed, albeit sparingly, by the parties prior to the first oral argument in this case, see Brief for Respondents 43-44; Reply Brief for Petitioners 14-15, and during that argument was the subject of a question from the bench. See Tr. of Oral Arg. 27-29.

B

Just as it is therefore proper for me to address the interpretation of the prevention clause and the merits of respondents' position under its terms, it was reasonable for respondents themselves to seek leave to file a supplemental brief addressing that interpretation and those merits prior to the reargument. Their request was nonetheless denied, see 505 U.S. 1240 (1992), though I voted to grant it, and three other Members of the Court dissented on the record from the Court's action to the contrary. Nonetheless, whatever may have been the better decision, denying respondents' request was at least consistent with leaving the consideration of the prevention clause for another day, and in no way barred respondents from pressing a claim under the clause at a later stage of this litigation. A vote to deny the request could, for example, simply have reflected a view that, in the absence of more extensive trial court findings than those quoted above, it was better to leave the prevention clause for further consideration on the remand that I agree is appropriate. Now, however, in expressing skepticism that the prevention clause could be a basis for relief, the Court begins to close the door that the earlier order left open, a move that is unfair to respondents after their request was denied. While the Court's opinion concentrates on the errors of my ways, it would be difficult not to read it as rejecting a construction of the prevention clause under which petitioners might [506 U.S. 263, 292] succeed, and to that extent as barring their claim under a statutory provision on which they were not allowed to comment in the supplemental briefing that was otherwise permitted before reargument.

C

Because, in my judgment, the applicability of the prevention clause was raised, and because there is neither unfairness to respondents in putting forward the statutory interpretation that does not bar their claim, nor unfairness to petitioners who sought no leave to address the issue further, I turn to my own views on the meaning of the prevention clause's terms.

III

Because this Court has not previously faced a prevention clause claim, the difficult question that arises on this first occasion is whether to import the two conditions imposed on the deprivation clause as limitations on the scope of the prevention clause as well. If we do not, we will be construing the phrase "equal protection of the laws" differently in neighboring provisions of the same statute, and our interpretation will seemingly be at odds with the "natural presumption that identical words used in different parts of the same act [were] intended to have the same meaning." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). But the presumption is defeasible, and in this instance giving the common phrase an independent reading is exactly what ought to be done.

This is so because the two conditions at issue almost certainly run counter to the intention of Congress, and whatever may have been the strength of this Court's reasons for construing the deprivation clause to include them, those reasons have no application to the prevention clause now before us. To extend the conditions to shorten the prevention clause's reach would, moreover, render that clause inoperative against a conspiracy to which its terms in their plain [506 U.S. 263, 293] meaning clearly should apply, a conspiracy whose perpetrators plan to overwhelm available law enforcement officers, to the point of preventing them from providing a class of victims attempting to exercise a liberty guaranteed them by the Constitution with the police protection otherwise extended to all persons going about their lawful business on streets and private premises. Lest we embrace such an unintended and untoward result, we are obliged to reject any limiting constructions that stare decisis does not require.

A

The amalgam of concepts reflected in 42 U.S.C. 1985(3) witness the statute's evolution, as 2 of the Civil Rights Act of 1871, from a bill that would have criminalized conspiracies "to do any act in violation of the rights, privileges, or immunities of any person . . .," Cong. Globe, 42d Cong., 1st Sess., App. 206 (1871) (statement of Rep. Blair), quoting H.R. 320, 2, 42d Cong., 1st Sess. (1871), to a statute including a civil cause of action against conspirators and those who "go in disguise" to violate certain constitutional guarantees. See 17 Stat. 13. The amendment of the original bill that concerns us occurred in the House, to calm fears that the statute's breadth would extend it to cover a vast field of traditional state jurisdiction, exceeding what some Members of Congress took to he the scope of congressional power under the Fourteenth Amendment. See Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402, 417 (1979). The principal curb placed on the statute's scope was the requirement that actionable conspiracies (not otherwise proscribed on the strength of their threats to voting rights, see 1985(3)) be motivated by a purpose to deny equal protection of the laws. The sponsor of the amendment, Representative Shellabarger, put it this way: "The object of the amendment is . . . to confine the authority of this law to the prevention of deprivations which [506 U.S. 263, 294] shall attack the equality of rights of American citizens. . . ." Cong. Globe, 42d Cong., 1st Sess., 478 (1871).

The effect of the equal protection requirement in thus limiting the deprivation clause has received the Court's careful attention, first in Collins v. Hardyman, 341 U.S. 651 (1951), then in a series of more recent cases, Griffin v. Breckenridge, 403 U.S. 88 (1971), Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U.S. 366 (1979), and Carpenters v. Scott, 463 U.S. 825 (1983). For present purposes, Griffin and Carpenters stand out.

B

The Griffin Court sought to honor the restrictive intent of the 42d Congress by reading the "language requiring intent to deprive of equal protection, or equal privileges and immunities," Griffin, 403 U.S., at 102 (emphasis omitted), as demanding proof of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Ibid. And while this treatment did, of course, effectively narrow the scope of the clause, it did so probably to the point of overkill, unsupported by any indication of an understanding on the part of Congress that the animus to deny equality of rights lying at the heart of an equal protection violation as the legislation's sponsors understood it would necessarily be an animus based on race or some like character. See id., at 100; Cong. Globe, 42d Cong., 1st Sess., App. 188 (remarks of Rep. Willard); Cong. Globe, 42d Cong., 1st Sess., at 478 (remarks of Rep. Shellabarger).

While the Congress did not explain its understanding of statutory equal protection to any fine degree, I am not aware of (and the Griffin Court did not address) any evidence that, in using the phrase "equal protection" in a statute passed only three years after the ratification of the Fourteenth Amendment, Congress intended that phrase to mean anything different from what the identical language meant in the Amendment itself. That is not to say, of course, that all Members of Congress in 1871, or all jurists, would have [506 U.S. 263, 295] agreed on exactly what the phrase did mean, and certainly it is true that the conceptual development of equal protection could hardly have been outlined in advance by the Members of the 42d Congress. But equally is it true that we have no reason to suppose that they meant their statutory equal protection provision to be read any more narrowly than its obvious cognate in the Amendment. Griffin, however, gave it just such a reading.

To be sure, there is some resonance between Griffin's animus requirement and those constitutional equal protection cases that deal with classifications calling for strict or heightened scrutiny, as when official discriminations employ such characteristics as race, national origin, alienage, gender, or illegitimacy. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-441 (1985) (describing the jurisprudence).4 But these categories of distinctions based on race or on qualities bearing a more or less close analogy to race do not by any means exhaust the scope of constitutional equal protection. All legislative classifications, whether or not they can be described as having "some racial or perhaps otherwise class-based invidiously discriminatory animus," are subject to review under the Equal Protection Clause, which contains no reference to race, and which has been understood to have this comprehensive scope since at least the late 19th century. See, e.g., Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293-294 (1898) (citing cases). A routine legislative classification is, of course, subject only to deferential scrutiny, passing constitutional muster if it bears a rational relationship to some legitimate governmental purpose. E.g., Cleburne v. Cleburne Living Center, Inc., supra, (describing the test); Schweiker v. Wilson, 450 U.S. 221, 230 (1981). [506 U.S. 263, 296] But the point is that Fourteenth Amendment equal protection scrutiny is applied to such classifications, and if the scope of "equal protection" in the statute is to balance its constitutional counterpart, the statute ought to cover discriminations that would be impermissible under rational-basis scrutiny.

There is, indeed, even some extratextual evidence of a positive congressional intent to provide just such a statutory reach beyond what Griffin would allow. Some of the legislative history of 2 of the 1871 Act suggests that the omission of any reference to race from the statutory text of equal protection was not the result of inadvertence, and that Congress understood that classifications infringing the statutory notion of equal protection were not to be limited to those based on race or some closely comparable personal quality. The most significant, and often quoted, evidence came from Senator Edmunds, who managed the bill on the Senate floor and remarked that if there were a conspiracy against a person "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 could reach it." Cong. Globe, 42d Cong., 1st Sess., at 567.5 These are not, of course, all examples of discrimination based on any class comparable to race, and the Senator's list counters any suggestion that the subject matter of statutory equal protection was meant to be so confined.6 [506 U.S. 263, 297]

C

Notwithstanding the Griffin Court's decision to read the deprivation clause's equal protection element as more restrictive than Fourteenth Amendment equal protection, the Court recognized that in a different respect the statute remained more expansive than its constitutional counterpart, in being aimed at deprivations of equal protection by purely private conspirators, 403 U.S., at 96-97. This very conclusion, in fact, prompted the further concern that the deprivation clause might, by its terms, apply to facts beyond Congress' constitutional reach. The Court nonetheless obviated the need to address the scope of congressional power at that time by confining itself to a holding that the statute was constitutional at least insofar as it implemented congressional power to enforce the Thirteenth Amendment and the right to travel freely, each of which was "assertable against private as well as governmental interference." Id., at 105.7

The Court was then only one step away from putting the deprivation clause in its present shape, a step it took in Carpenters. Whereas Griffin had held that requiring a purpose to infringe a federal constitutional right guaranteed against private action was sufficient to allay any fear that the deprivation clause was being applied with unconstitutional breadth, Carpenters turned this sufficient condition into a necessity insofar as conspiracies to deprive any person or class of persons of federal constitutional rights were concerned, by holding that, in the case of such a conspiracy, no cause of action could be stated without alleging such an ultimate object of depriving the plaintiff of a right protected [506 U.S. 263, 298] against private action by the Federal Constitution. 463 U.S., at 833.

It was a most significant step. In going no further than to affirm the deprivation clause's constitutionality insofar as it applied to conspiracies to infringe federal constitutional rights guaranteed against private action, the Griffin Court had arguably acted with prudent reticence in avoiding a needless ruling on Congress' power to outlaw conspiracies aimed at other rights.8 But in converting this indisputably constitutional object, of giving relief against private conspiracies to violate federal constitutional rights guaranteed against private action, into the exclusive subject matter of the clause with respect to conspiracies to deprive people of federal constitutional rights, the Carpenters Court almost certainly narrowed that clause from the scope Congress had intended. If indeed Congress had meant to confine the statute that narrowly, its application to federal constitutional deprivations in 1871 would not have gone beyond violations of the Thirteenth Amendment, adopted in 1865. (The next clear example of a constitutional guarantee against individual action would not emerge until United States v. Guest, 383 U.S. 745, 759-760, n. 17 (1966), recognizing a right of interstate travel good against individuals as well as governments.) But if Congress had meant to protect no federal constitutional rights outside those protected by the Thirteenth Amendment, it is hard to see why the drafters would not simply have said so, just as in the third and fourth clauses of 1985(3), they dealt expressly with infringements of voting rights, already guaranteed against abridgment by the Fifteenth Amendment adopted in 1870.

The Carpenters Court might have responded to this objection by suggesting that the textual breadth of the deprivation clause reflects its applicability to conspiracies aimed at violating rights guaranteed under state law or rights [506 U.S. 263, 299] guaranteed against individual infringement by federal statutory law, since such possible applications were left open by the Court's opinion. See Carpenters, supra, at 833-834. But this answer would prompt the even more fundamental objection that there is no textual basis in the deprivation clause (or in the portions of subsection (3) common to all clauses) suggesting that any such individual-infringement limitation was intended at all.

Whether