Cite as: 506 U. S. 263 (1993)
Stevens, J., dissenting
is enough that the conspiracy be motivated "at least in part" by its adverse effects upon women. Cf. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979); Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265-266 (1977). The immediate and intended effect of this conspiracy was to prevent women from obtaining abortions. Even assuming that the ultimate and indirect consequence of petitioners' blockade was the legitimate and nondiscriminatory goal of saving potential life, it is undeniable that the conspirators' immediate purpose was to affect the conduct of women.19 Moreover, petitioners target women because of their sex, specifically, because of their capacity to become pregnant and to have an abortion.20
19 In Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979), we inquired whether the challenged conduct was undertaken "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id., at 279. It would be nonsensical to say that petitioners blockaded clinics "in spite of" the effect of the blockades on women.
20 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.
See Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 32-33 (1992) (footnotes omitted):
"The first point is that restrictions on abortion should be seen as a form of sex discrimination. The proper analogy here is to a law that is targeted solely at women, and thus contains a de jure distinction on the basis of sex. A statute that is explicitly addressed to women is of course a form of sex discrimination. A statute that involves a defining characteristic or a biological correlate of being female should be treated in precisely the same way. If a law said that 'no woman' may obtain an abortion, it should readily be seen as a sex-based classification. A law saying that 'no person' may obtain an abortion has the same meaning.
"The fact that some men may also be punished by abortion laws—for example, male doctors—does not mean that restrictions on abortion are
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