In Bray v. Alexandria Women’s Health Clinic, the Supreme Court held that the anti-conspiracy provision of the 1871 Civil Rights Act, 42 U.S.C. § 1985(3), known as the Ku Klux Klan Act, did not support a claim against an anti-abortion group’s conspiracy to obstruct access to abortion clinics. Anti-abortion activists have targeted clinics, physicians, and their patients with advocacy and harassment, obstructed clinic access and, in extreme cases, bombed abortion clinics and murdered abortion providers. Bray challenged Operation Rescue’s blockades of abortion facilities throughout the Washington, D.C. area.
Congress originally enacted Section 1985(3) to bar Ku Klux Klan–style mob violence that terrorized black people and Reconstruction supporters and impeded local officials from protecting them. The statute provides a civil cause of action against private conspiracies (1) to deprive ‘‘any person or class of persons’’ of the equal protection of the laws, or (2) to ‘‘prevent or hinder the constituted authorities of any State’’ from providing equal protection. The act applies not only to government conduct, but also to private groups like the Klan or Operation Rescue (see Bray and Griffin v. Breckenridge). To prevent Section 1985(3) from becoming ‘‘a general federal tort law,’’ which is traditionally the province of the states, the Court had interpreted the statute’s first clause—the ‘‘deprivation clause’’—to impose two additional limitations: first, that ‘‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action,’’ and, second, that the conspiracy aim to interfere with rights that are ‘‘protected against private, as well as official, encroachment’’ (see Griffin, and Carpenters v. Scott).
In an opinion written by Justice Scalia for a fivemember majority, the Court held that the Bray plaintiffs had failed to meet both of those requirements. In the majority’s view, the class of women as a whole was not targeted by Operation Rescue’s opposition to abortion, and the subset of ‘‘women seeking abortions’’ is defined merely by its shared objective, making it not a statutorily protected class. In any event, the Court held, the deprivation clause does not prevent private interference with abortion, because constitutional abortion rights run only against the government. The right to interstate travel constrains private actors, but the Court viewed Operation Rescue’s interference with some women’s travel as a circumstantial effect rather than a purpose of the conspiracy. The majority did not rule on the belatedly raised hindrance claim.
For the four dissenters (Justices Stevens, O’Connor, Blackmun, and Souter), the case presented none of the federalism concerns that might justify restrictive interpretation of Section 1985(3). All four would have reached and sustained the plaintiffs’ hindrance claim. Three dissenters concluded that obstructing women’s access to abortion is sex-based ‘‘class animus’’ under the act, and that, unlike the deprivation clause, the hindrance clause protects the effectiveness of government and so applies even to private interference with official protection of rights like abortion. Justice Souter’s separate, broader dissent questioned the narrow deprivation-clause precedents requiring class-based animus and infringement of a right guaranteed against private impairment, and would have ruled for plaintiffs on that ground as well. Justice Stevens, joined by Justice Blackmun, also would have sustained the deprivation clause claim on the more limited ground that burdening interstate travel was ‘‘one of the intended consequences of [the] conspiracy,’’ and no specific intent to discriminate against out-of-staters should have been required.
The Bray majority did not foreclose litigation under the hindrance clause, and women in later cases have successfully pursued hindrance claims (see, for example, Libertad v. Welch and National Abortion Federation v. Operation Rescue), and also have gained protection under other sources of law. Partially in response to Bray, Congress in 1994 passed the Freedom of Access to Clinic Entrances Act (FACE), criminalizing the obstruction of clinics and the use of force to intimidate or interfere with persons seeking to provide or obtain abortions. Additionally, in Schenck v. Pro-Choice Network of Western New York, the Supreme Court upheld state-law buffer zones and other restrictions around abortion clinics against free speech challenges. While relief from antiabortion protestors under RICO initially seemed promising, the Court held in Scheidler v. NOW that abortion protesters’ interference with or shutting down of clinics did not amount to the RICO predicate act of ‘‘extortion,’’ such that RICO did not apply.
Cases and Statutes Cited
See also Abortion; Operation Rescue