WPCL 2 B5JCourierNew Century SchoolbookNew Century Schoolbook Italic3|oolbookAPLASIIN.PRSx  @hhhhPijX@3|o2a3<cq Z3.    Њc"m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<P# y )  dd^_ SUPREME COURT OF THE UNITED STATESА-  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)DaggersDagger Footnote Option /|fT#[ P['CP#X01Í Í14,39Í Í #o P['C#{&P#X` hp x (#%'0*,.8135@8:#Final OtherFinal form, Not an OPINION u  #  ( (   # P['A>P#)  dd^_  R SUPREME COURT OF THE UNITED STATESА*(  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)Final OpFinal Opinion Formatr   #  ( (   X` hp x (#%'0*,.8135@8:P#x X )  dd^_ SUPREME COURT OF THE UNITED STATESА*(  ^_dd #T P[:+AdP# <<  I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)5 EllipsisParagraph EllipsisD;X` hp x (#%'0*,.8135@8: P['CP&u![2*d[ P['CPu![2*[e xzCXVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR2Acv3Z6c<:c="m^)+9RRzx11IY)1))RRRRRRRRRR))YYYAljjjrjbrz>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQX P['CP&u![2*d[ P['CP&u![2*[e xzCX&r!Y1)LY P['CP')o=3no P['C&P)o=3Roe xzC&XфtzeoKp[pPp[o`=gwZZskkkkB{sssZZcJRRRkkklWdPZH\I\I\IlWoY2(mWgRklWaMlWs\SCYG\IhSr\lWw_s\_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR&)o=3no P['C&P&4NA> P['CP&u![2*d[ P['CP u![2*[e xzCX&r!Y1)LY P['CP)o=3no P['C&P)o=3Roe xzC&X&UC%D4C P['CJP&F66 P['CP&]I(!̤PI P['ChP u![2*d[ P['CP v]T@I:I:I:]EP&bIW5L8P/T@T@]E]<bINI!I<$533CCC($ddC(XXCd(2L Opin Init #  ( (     П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a) Final Other  ##  ( ( ( (  # P['A>P#)  dd^_  R SUPREME COURT OF THE UNITED STATESА uB  -(  ^_dd #T P[:+AdP# <<  I A 1 a (1)(a) i) a) I A 1 a (1)(a) i) a)*#[ P['CdP# ( ( ( ( ) C  (c C No. 90!985 ) !   J 9 #o P['Cn&P# ddd < Ӌ%h ddd < #[ P['CdP#  uBn B BRAY v. ALEXANDRIA WOMEN'S HEALTH CLINIC%i ddd < #[ P['CdP#  uBn B BRAY v. ALEXANDRIA WOMEN'S HEALTH CLINIC`B؃ C JAYNE BRAY, et al., PETITIONERS v. ALEXANDRIA  J  WOMEN'S HEALTH CLINIC et al.    on writ of certiorari to the united states court  of appeals for the fourth circuit $F#[ P['CdP# d [January 13, 1993] *(   #o P['Cn&P#  J gFootnotes#[ P['CdP# dd X01Í Í01Í Í ( ( #o P['Cn&P#X` hp x (#%'0*,.8135@8: uB ԍBut see n. 7, supra.> 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  J 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  J individual action would not emerge until United States v.  J 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 abridgement by the Fifteenth Amendment adopted in 1870.  J  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 guaranteed against individual infringement by federal statutory law, since such possible applications were  J left open by the Court's opinion. See Carpenters, supra, at 833!834. But this answer would prompt the even more G"   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 individualinfringement limitation was intended at all.  Whether or not the concerns with constitutionality that  J8 prompted both the Griffin and Carpenters holdings were well raised or wisely allayed by those decisions, the solution reached most probably left a lesser deprivation clause than Congress intended. Just as probably, if that solution were imported into the prevention clause, it would work an equally unintended contraction.  : H1 ,IV؃  C  The conclusion that the conditions placed on the deprivation clause narrow its intended scope prompts the question whether the reasons thought to argue in favor of placing such conditions on the deprivation clause apply to the prevention clause. They do not.  DH2 -A؃  #C  We may recall that in holding racial or other classbased animus a necessary element of the requisite purpose to  J deprive of equal protection, the Griffin Court was mindful of the congressional apprehension that the statute might otherwise turn out to be a general federal tort law.  J Griffin, 403 U.S., at 102. While the Court did not dwell on why it chose a requirement of racial or comparable classbased animus to restrict statutory equal protection, its readiness to read the statutory category more narrowly than its Fourteenth Amendment counterpart is at least understandable when one sees that the scope of conspiracies actionable under the deprivation clause has virtually no textual limit beyond the need to prove the equal  J^ protection element. Without the Griffin Court's selfimposed classbased animus requirement, any private conspiracy to deprive of equal protection would be action "  Ԯable under 1985(3) so long as the conspirators took some action that produced some harm.  The prevention clause carries no such premonition of liability, however. Its most distinctive requirement, to prove a conspiratorial purpose to preven[t] or hinde[r] the constituted authorities of any State or Territory from giving or securing ... the equal protection of the laws, is both an additional element unknown to the deprivation clause, and a significantly limiting condition. Private conspiracies to injure according to class or classification are not enough here; they must be conspiracies to act with enough force, of whatever sort, to overwhelm the capacity of legal authority to act evenhandedly in administering the law.  The requirement that the very capacity of the law enforcement authorities must be affected is supported by a comparison of the statutory language of the prevention clause, which touches only those conspiracies with a purpose to preven[t] or hinde[r] the constituted authorities of any State or territory from giving or securing equal protection, with the text of 1985(1), which (among other things) prohibits conspiracies to prevent any person from discharging any duties of an office under the United States. The contrast !  makes clear that the words of the prevention clause are not those that Congress used when it meant to deal with every situation in which a single government official was prevented from discharging his duties. To be sure, in an earlier day of scarce law enforcement personnel, rudimentary communication and slow transportation, in some situations it might have been possible to overthrow the capacity of government by overthrowing one official alone. But a more ambitious conspiratorial object would be required under normal modern conditions, and in order to satisfy the requirement of affecting the law enforcement system sufficiently, such a conspiracy would need to envision action capable of countering numbers of officers or injuring their responsive` "   capacity (as by disabling their communication system, for example).  The requirement of an object to thwart the capacity of law enforcement authority to provide equal protection of the laws thus narrows the scope of conspiracies actionable under the prevention clause. It does so to such a degree that no reason appears for narrowing it even more by a view of equal protection more restrictive than that of the Fourteenth Amendment.  DH2 -B؃  H C  Equally inapposite to the prevention clause is the second  Jc Griffin!Carpenter deprivation clause limitation that where a conspiracy to deny equal protection would interfere with exercise of a federal constitutional right, it be a right protected against private, as well as official encroach J ment, Carpenters, 463 U.S., at 833. The justification for the Court's initial enquiry concerning rights protected by the Constitution against private action lay in its stated concern about the constitutional limits of congressional  J# power to regulate purely private action. Griffin, 403 U.S., at 104. Once again, however, the reason that there is no arguable need to import the extratextual limitation from the deprivation clause into the prevention clause lies in the prevention clause's distinctive requirement that the purpose of a conspiracy actionable under its terms must include a purpose to accomplish its object by preventing or hindering officials in the discharge of their constitutional responsibilities. The conspirators' choice of this means to work their will on their victims would be significant here precisely because the act of frustrating or thwarting state officials in their exercise of the State's police power would amount simply to an extralegal way of determining how that state power would be exercised. It would, in real terms, be the exercise of state power itself. To the degree that private conspirators would arrogate the State's police power to themselves to thwart equal protection by"   imposing what amounts to a policy of discrimination in place of the Constitution's mandate, their action would be tantamount to state action and be subject as such to undoubted congressional authority to penalize any exercise of state police power that would abridge the equal protection guaranteed by the Fourteenth Amendment. That is to say, Congress is no less able to legislate against unconstitutional exercises of state authority by conspiratorial usurpation than it is to counter unconstitutional action taken by those formally vested with state authority.  This equation of actionable conspiracies with state action is indeed central to the reading given to the prevention  J clause by the Griffin Court. In reasoning that the deprivation clause contained no state action requirement, the Court contrasted the text of that clause with the language of three other provisions indicating, respectively, three possible forms for a state action limitation on 1985(3).  JX Griffin, 403 U.S., at 98. One such limitation that might have been read into the deprivation clause was that there must be interference with or influence upon state authori J ties. Ibid. The Court declined to tack that requirement onto the deprivation clause because its inclusion in the prevention clause indicated that Congress intended it to apply there and nowhere else. The relevant point here  J@ is that the whole basis of the Griffin Court's analysis was that interference with or influence on state authorities  J was state action, and it follows from Griffin's own premises that no guaranteeagainstprivateencroachment condition would have been needed even then to allay any apprehension that in reaching the private conspiracies described by the prevention clause, Congress might be exceeding its authority under 5 of the Fourteenth Amendment.  J  Accordingly, I conclude that the prevention clause may be applied to a conspiracy intended to hobble or overwhelm the capacity of duly constituted state police authorities to secure equal protection of the laws, even when the`"   conspirators' animus is not based on race or a like class characteristic, and even when the ultimate object of the conspiracy is to violate a constitutional guarantee that applies solely against state action.  : H1 -V؃  C  Turning now to the application of the prevention clause as I thus read it, I conclude that a conspiracy falls within the terms of the prevention clause when its purpose is to hinder or prevent law enforcement authorities from giving normal police protection to women attempting to exercise  J the right to abortion recognized in Casey v. Planned  Jc Parenthood of Southeastern Pennsylvania, 505 U.S. ____  J; (1992), and Roe v. Wade, 410 U.S. 113 (1973). My reason for this is not a view that a State's frustration of an individual's choice to obtain an abortion would, without more, violate equal protection, but that a classification necessarily lacks any positive relationship to a legitimate state purpose, and consequently fails rational basis scrutiny, when it withdraws a general public benefit on account of the exercise of a right otherwise guaranteed by  J the Constitution. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (applying the Equal Protection Clause and finding no appropriate governmental interest suitably furthered by a discrimination that would independently violate the First Amendment). While such a discrimination, were it wrought by the State, could be treated as a burden on the exercise of a right protected  J by a substantive due process guarantee, see Casey, supra, and forbidden as such, the denial of generally available civic benefits to one group solely because its members seek what the Constitution guarantees would just as clearly be a classification for a forbidden purpose, which is to say,  J independently a violation of equal protection. See Mosley,"    J supra; Carey v. Brown, 447 U.S. 455 (1980)._  uBh ԍI emphasize the substantive due process guarantee at issue here because my analysis rests on the fact that, treating the conspirators as the State, the imposition of restrictions on abortion more strict than those permitted under the Constitution is not a legitimate public purpose. I do not reach the question whether and how the equal protection requirement in the prevention clause would be violated by a conspiracy which, if charged to the State, would amount to a denial of police protection to individuals who are not attempting to exercise a constitutional right._ When private individuals conspire for the purpose of arrogating and, in effect, exercising the State's power in a way that would thus violate equal protection if so exercised by state officials, the conspiracy becomes actionable when implemented by an act ``whereby [a person] is injured in his person or property, or deprived of ... any right or  J privilege of a citizen of the United States.'' 1985(3).j (H uB ԍThe scope of this construction of the prevention clause is limited. It certainly would not forbid any conduct, unlike that at issue here, protected by the First Amendment. Nor would it reach even demonstrations that have only the incidental effect of overwhelming local police authorities, for the statute by its terms requires a purpose to preven[t] or hinde[r] 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. Indeed, it would not necessarily reach even most types of civil disobedience that may be intended to overwhelm police by inviting multiple arrests, because the purpose of these is not ordinarily to discriminate against individuals on the basis of their exercise of an  uB independently protected constitutional right. See n.9, supra.  As to the lunch counter sitin protests of the early 1960's, to which the  uBS Court refers, see ante, at 17, and n.14, if the cases that made it to this Court are representative, these normally were not mass demonstrations, but rather led to the arrests of small groups of orderly students who refused to leave segregated establishments when requested to do so. See,  uB/ e.   g., Bouie v. City of Columbia, 378 U.S. 347, 348 (1964) ( two Negro  uB college students); Bell v. Maryland, 378 U.S. 226, 227 (1964) ( 12 Negro  uB students); Robinson v. Florida, 378 U.S. 153 (1964) (an integrated group  uBT of 18 blacks and whites); Barr v. City of Columbia, 378 U.S. 146, 147  uB  (1964) ( five Negro college students); Griffin v. Maryland, 378 U.S. 130,  uB 132 (1964) ( five young Negroes); Lombard v. Louisiana, 373 U.S. 267, 268 (1963) ( three Negro and one white college students seeking servicey "##  uB at a refreshment counter designed to accommodate 24 persons); Peterson  uBG v. Greenville, 373 U.S. 244, 245, 247 (1963) (10 Negro boys and girls seeking service at a lunch counter that was designed to accommodate 59 persons).  In any event, under the construction I adopt today, a lunch counter sitin would not have been actionable even if police had been overwhelmed because, for example, protesters arrested for trespass were immediately replaced by others who prevented police from barring integration of the  uBH lunch counter, leading to mass arrests. This is so because the protesters would not have deprived the owner of the segregated lunch counter of any  uB independently protected constitutional right. See Roberts v. United States  uBm Jaycees, 468 U.S. 609, 618!622 (1984) (no associational right on the part  uB$ of individual members to exclude women from the Jaycees); Heart of  uB Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258!261 (1964) (Title II of the Civil Rights Act of 1964 prohibiting discrimination in places of public accommodation does not work a deprivation of liberty or property without due process of law, nor a taking of property without just compensation).  uBn  The Court correctly describes the holding of Heart of Atlanta, but then  uB% ignores the import of that holding in reaching its conclusion. It argues that government action that would have been the equivalent of what  uB those conducting the sitins did, i.e., government action preventing restaurant owners from discriminating in provision of service against blacks, would have violated the Constitution by physically occupy[ing the restaurant owners'] property without due process and without just  uBo compensation. See ante, at 17!18, n.14. Whether the property to which the Court refers is the lunch counter itself, or the restaurant owners' right to exclude blacks from their establishments on the basis  uB of race, ibid., assuming that could even be described as one of that bundle of rights that made up such a restaurant owner's property (a dubious  uB proposition, see, e. 1 g., Lane v. Cotton, 12 Mod. 472, 484 (K.B. 1701) (commonlaw duty of innkeepers to serve potential patrons equally, without regard to personal preference, so long as they can be accommodat uB' ed)), the Court does not explain how, if such government action would violate the Constitution, Title II of the Civil Rights Act could provide  uB  legal warrant for the physical occupation, ante, at 18, n.14, without similarly offending the Takings and Due Process Clauses.  There is, additionally, an independent reason apart from the absence of any constitutional right on the restaurant owner's part, that a sitin demonstration would not be actionable under my construction of the prevention clause. Although the question was left open in the sitin cases decided by this Court in 1963 and 1964, see Paulsen, The SitIn Cases "## of 1964: ``But Answer Came There None,'' 1964 Sup. Ct. Rev. 137 (1964), and was then largely mooted by the adoption of the Civil Rights Act of 1964, government enforcement of private segregation by use of a state trespass law, rather than securing to all persons ... the equal protection of the laws, itself amounted to an unconstitutional act in violation  uB# of the Equal Protection Clause of the Fourteenth Amendment. Cf. Shelley  uB v. Kraemer, 334 U.S. 1 (1948).j "    : H1 ,VI؃  C  The only remaining question is whether respondents have demonstrated, and the District Court has found, a  J conspiracy thus actionable under the prevention clause. J uB4 ԍAs the Court observes, ante, at 20, n.16, I do not address the propriety of injunctive relief in this case even though it was addressed by the parties in supplemental briefs on reargument. Unlike the prevention clause question, it is not fairly included within the questions upon which certiorari was granted, and therefore its consideration by the Court would be inappropriate. See this Court's Rule 14.1(a). While I think that all of the requisite findings would be supportable on this record, one such finding has not been expressly made.  The District Court found that petitioners conspired to cause respondent clinics to cease operations by trespassing on their property and physically blocking entry into and exit from the clinics, see 726 F. Supp., at 1489, rendering existing and prospective patients, as well as physicians and medical staff, unable to enter the clinic to render or  J; receive medical counseling or advice. Ibid. The District Court found that petitioners' actions were characteristically undertaken without notice and typically overwhelmed local police officials invested with the law enforcement component of the State's police power, rendering them unable for a substantial period to give or secure the police protection otherwise extended to all persons going about their lawful business on the streets and on private pre J mises.  Id., at 1489, 1490, and n.4. The victims were chosen because they would be making choices falling within the scope of recognized substantive due process "    J protection, id., at 1489, choices that may not be made the basis for discriminatory state classifications applied to deny state services routinely made available to all persons.  J The District Court found that the effects of thus replacing constituted authority with a lawless regime would create  J8 a substantial risk of physical harm, ibid., and of damage  J to respondents' property, id., at 1489!1490, a conclusion amply supported by the record evidence of personal assaults and tortious restrictions on lawful movement, as well as damage to property, at petitioners' previous  Jp demonstrations. See, e.g., Tr. A!25 (Nov. 20, 1989).  These facts would support a conclusion that petitioners' conspiracy had a purpose of preventing or hindering the constituted authorities of [Virginia] from giving or securing to all persons within [Virginia] the equal protection of the laws, and it might be fair to read such a finding between the lines of the District Court's express conclusions. But the finding was not express, and the better course is to err on the side of seeking express clarification. Certainly that is true here, when other Members of the Court think it appropriate to remand for further proceedings. I conclude therefore that the decision of the Court of Appeals should be vacated and the case be remanded for consideration of purpose, and for a final determination whether implementation of this conspiracy was actionable under the prevention clause of 42 U.S.C. 1985(3).