350
O'Connor, J., dissenting
opinion). At the very least, the classes protected by § 1985(3) must encompass those classifications that we have determined merit a heightened scrutiny of state action under the Equal Protection Clause of the Fourteenth Amendment. Classifications based on gender fall within that narrow category of protected classes. E. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 723-726 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976). Not surprisingly, the seven Federal Courts of Appeals to have addressed the question have all reached the conclusion that the class of "women" falls within the protection of the statute. Stathos v. Bowden, 728 F. 2d 15, 20 (CA1 1984); New York State National Organization for Women v. Terry, 886 F. 2d 1339, 1359 (CA2 1989), cert. denied, 495 U. S. 947 (1990); Novotny v. Great American Fed. Sav. & Loan Assn., 584 F. 2d 1235, 1244 (CA3 1978) (en banc), vacated on other grounds, 442 U. S. 366 (1979); National Organization for Women v. Operation Rescue, 914 F. 2d 582, 585 (CA4 1990); Volk v. Coler, 845 F. 2d 1422, 1434 (CA7 1988); Conroy v. Conroy, 575 F. 2d 175, 177 (CA8 1978); Life Ins. Co. of North America v. Reichardt, 591 F. 2d 499, 505 (CA9 1979). As Justice White has observed: "It is clear that sex discrimination may be sufficiently invidious to come within the prohibition of § 1985(3)." Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 389, n. 6 (1979) (dissenting opinion).
If women are a protected class under § 1985(3), and I think they are, then the statute must reach conspiracies whose motivation is directly related to characteristics unique to that class. The victims of petitioners' tortious actions are linked by their ability to become pregnant and by their ability to terminate their pregnancies, characteristics unique to the class of women. Petitioners' activities are directly related to those class characteristics and therefore, I believe, are appropriately described as class based within the meaning of our holding in Griffin.
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