Bray v. Alexandria Women's Health Clinic, et al
Decided on Jan. 13, 1993; 506 US 263


A. Issues Discussed:  Civil Rights (privacy), abortion

B. Legal Question Presented: 

Did anti-abortion protesters who obstructed access to Washington, D.C. abortion clinics violate 42 U.S.C. 1985(3), known as the Ku Klux Klan Act, by conspiring to deny women their right to abortion or right to interstate travel?

A. Background:

Alexandria Women's Health Clinic (Respondents), along with several other abortion clinics, sued Jayne and Michael Bray, and other anti-abortion members of Operation Rescue (Petitioners),
an organization of activists who trespassed on, and obstructed general access to, the premises of abortion clinics. The health clinics claimed that the protesters had violated 42 U.S.C. 1985(3), known as the Ku Klux Klan Act of 1871, which prohibits conspiracies to deprive equal protection of the laws to all.

Agreeing with the clinics, the District Court held that the Brays and others had conspired to deprive women seeking abortions by blocking access to clinics and thus denying their right to interstate travel. The court also ruled that the Brays, et al, had violated state trespassing and public nuisance laws, ordering them to stop, and pay the clinics' attorneys fees and costs associated with the 1985(3) claim.

The US Supreme Court granted certiorari to the United States Court of Appeals for the 4th Circuit.
B. Counsel of Record:
Opposing Side
Deborah A. Ellis reargued the cause for respondents.

With her on the brief were Martha F. Davis, Sally F. Goldfarb, John H. Schafer, and Laurence J. Eisenstein. Mr. 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
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.

C. The Arguments:
Opposing Side
Opposition to abortion constitutes discrimination against a 'class' of 'women seeking abortion.' Petitioners violated the protection clause of 42 U.S.C. 1985(3) by discriminating against women as a class and blocking such class the right to interstate travel. Petitioners block the entry of men to the abortion clinics no less than the entry of pregnant women, therefore discrediting the occurrence of discrimination against a 'class' (i.e. only women).

The protesters, acting as private individuals, could not possibly violate the right to interstate travel due to the right only applying to freedom from governmental interference. 
Opposing Side
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 29 Organizations Committed to Women's Health and Women's Equality by Dawn Johnsen, and Lois Eisner Murp. 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.

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 Lorence; for The Rutherford Institute et al. by John W Whitehead, Joseph 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 Berri.

Additional 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.

"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...

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...

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...

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 intention-ally 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 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 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...

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.' 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...' These were obviously not arguments for resolution of the 'hindrance' claim here... 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... 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 rights that are constitutionally protected only against official (as opposed to private) encroachment...

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."

Held: 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.
Justice Vote: 3 Pro vs. 6 Con

  • Scalia, A. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Kennedy, A. Con (Wrote concurring opinion)
  • Thomas, C. Con (Joined majority opinion)
  • Souter, D. Con (Wrote concurring dissenting opinion)
  • Stevens, J. Pro (Wrote dissenting opinion)
  • O'Connor, S. Pro (Wrote dissenting opinion)
  • Blackmun, H. Pro (Joined minority opinion, joined both dissents)

The ACLU filed as amicus urging affirmance; the Supreme Court reversed the ruling of the lower court in a 6-3 vote, giving the ACLU an apparent loss.