John Paul Stevens

“ The activity of traveling to a clinic to obtain an abortion is, of course, exclusively performed by women. Opposition to that activity may not be "irrational," but violent interference with it is unquestionably "aimed at" women. The Court offers no justification for its newly crafted suggestion that deliberately imposing a burden on an activity exclusively performed by women is not class-based discrimination unless opposition to the activity is also irrational. ”

“ It is also obvious that petitioners' conduct was motivated "at least in part" by the invidious belief that individual women are not capable of deciding whether to terminate a pregnancy, or that they should not be allowed to act on sucha decision. Petitioners' blanket refusal to allow any women access to an abortion clinic overrides the individual class member's choice, no matter whether she is the victim of rape or incest, whether the abortion may be necessary to save her life, [21] or even whether she is merely seeking advice or information about her options. ”

“ A woman's right to engage in interstate travel for this purpose is either entitled to special respect because she is exercising a constitutional right, or because restrictive rules in her home State may make travel to another State imperative. ”

“ Satty, 434 U.S. 136 (1977) , applied a statute without an intent requirement to an employer's policy denying accumulated seniority to employees returning from pregnancy leave. Notwithstanding Geduldig, the Court found that the policy burdened only women, and therefore constituted discrimination on the basis of sex. The Court stated that "petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics." ”

“ Giving effect to the plain language of §1985 (3) to provide a remedy against the violent interference with women exercising their privilege—indeed, their right—to engage in interstate travel to obtain an abortion presents no danger of turning the statute into a general tort law. Nor does anyone suggest that such relief calls into question the constitutional powers of Congress. ”

“ Petitioners' conspiracy had both the purpose and effect of interfering with interstate travel. The number of patients who cross state lines to obtain an abortion obviously depends, to some extent, on the location of the clinic and the quality of its services. In the Washington metropolitan area, where interstate travel is routine, 20 to 30 percent of the patients at some clinics were from out of State, while at least one clinic obtained over half its patients from other States. ”

“ It is a case about the exercise of federal power to control an interstate conspiracy to commit illegal acts. I have no doubt that most opponents of abortion, like most members of the citizenry at large, understand why the existence of federal jurisdiction is appropriate in a case of this kind. ”

“ Even though petitioners may not have known which of the travelers had crossed the state line, petitioners unquestionably knew that many of them had. The conclusion of the District Court that petitioners "engaged in this conspiracy for the purpose, either directly or indirectly, of depriving women seeking abortions and related medical counselling services, of the right to travel," 726 F.Supp., at 1493, is abundantly supported by the record.
Discrimination is a necessary element of the class-based animus requirement, not of the abridgment of a woman's right to engage in interstate travel. ”

“ The Court recognizes that the requisite animus may "readily be presumed" on the basis of the relationship between the targeted activity and membership in the targeted class. Ante, at 270. But the Court insists that opposition to an act engaged in exclusively by members of a protected class does not involve class-based animus unless the act itself is an "irrational object of disfavor." Ibid. The Court's view requires a subjective judicial interpretation inappropriate in the civil rights context, where what seems rational to an oppressor seems equally irrational to a victim. ”

“ The defendants were no less guilty of a class-based animus because they also opposed the cause of desegregation or rights of African-American suffrage, and the Court did not require the plaintiffs in Griffin to prove that their beatings were motivated by hatred for African-Americans. Similarly, a decision disfavoring female lawyers, [15] female owners of liquor estab- [p. 321] lishments, [16] or pregnant women [17] may appropriately be characterized as "invidiously discriminatory" even if the decisionmakers have goals other than—or in addition to—discrimination against individual women. ”

“ It is difficult to know whether the Court is waiting until only a few States have abortion clinics before it finds that petitioners' behavior violates the right to travel, or if it believes that petitioners could never violate that right as long as they oppose the abortion a woman seeks to obtain as well as the travel necessary to obtain it. ”

“ Given then prevailing attitudes about the respective roles of males and females in society, it is possible that the enacting legislators did not anticipate protection of women against class-based discrimination. ”

“ The Court mischaracterizes this analysis by ignoring the distinction between a classification that is sex based and a classification that constitutes sexual discrimination prohibited by the Constitution or by statute. See ante, at 272, n. 3. A classification is sex based if it classifies on the basis of sex. As the capacity to become pregnant is a characteristic necessarily associated with one sex, a classification based on the capacity to become pregnant is a classification based on sex.↑ . The Court refers to petitioners' opposition to "voluntary" abortion. ”

“ The Court is apparently willing to presume discrimination only when opposition to the targeted activity is—in its eyes—wholly pretextual: that is, when it thinks that no rational person would oppose the activity, except as a means of achieving a separate and distinct goal. ”

“ The Court attempts to refute the finding of class-based animus by relying on our cases holding that the governmental denial of either disability benefits for pregnant women or abortion funding does not violate the Constitution. ”

“ The suggestion that there is an analogy between their struggle to achieve equality and these petitioners' concerted efforts to deny women equal access to a constitutionally protected privilege may have rhetorical appeal, but it is [p. 345] insupportable on the record before us, and does not justify the majority's parsimonious construction of an important federal statute. ”

“ After the Civil War, Congress enacted legislation imposing on the Federal Judiciary the responsibility to remedy both abuses of power by persons acting under color of state law and lawless conduct that state courts are neither fully competent, nor always certain, to prevent. ”

“ The distinction between [p. 329] those who oppose abortion and those who physically threaten women and obstruct their access to abortion clinics is also more than semantic. Petitioners in this case form a mob that seeks to impose a burden on women by forcibly preventing the exercise of a right that only women possess. ”

“ The Court emphasized that nothing in the record suggested that the actuarial value of the insurance package was greater for men than for women. See 417 U.S., at 496. Indeed, even the exclusion of coverage for pregnancy-related disability benefited both men and women. ”

“ They have blockaded clinics across the country, and their activities have been enjoined in New York, Pennsylvania, Washington, Connecticut, California, Kansas, and Nevada, as well as the [p. 310] District of Columbia metropolitan area. They have carried out their "rescue" operations in the District of Columbia and Maryland in defiance of federal injunctions. ”

“ This Court has repeatedly and consistently held that gender-based classifications are subject to challenge on constitutional grounds, see, e.g., Reed v. Reed, 404 U.S. 71 (1971) ; Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) . A parallel construction of post-Civil War legislation that, in the words of Justice Holmes, "dealt with Federal rights and with all Federal rights, and protected them in the lump," United States v. ”