354
O'Connor, J., dissenting
I would focus not on the similarities of the two provisions, but on their differences. The Equal Protection Clause guarantees that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14, § 1 (emphasis added). In my view, § 1985(3) does not simply repeat that guarantee, but provides a complement to it: No private actor may conspire with the purpose of "depriving . . . any person or class of persons of the equal protection of the laws." (Emphasis added.) Unlike "deny," which connotes a withholding, the word "deprive" indicates an intent to prevent private actors from taking away what the State has seen fit to bestow.
The distinction in choice of words is significant in light of the interrelated objectives of the two provisions. The Fourteenth Amendment protects against state action, but it "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13 (1948). Section 1985(3), by contrast, was "meant to reach private action." Griffin, supra, at 101. Given that difference in focus, I would not interpret "discriminatory animus" under the statute to establish the same high threshold that must be met before this Court will find that a State has engaged in invidious discrimination in violation of the Constitution. As the 42d Congress well appreciated, private actors acting in groups can be as devastating to the exercise of civil rights as hostile state actors, and they pose an even greater danger because they operate in an unregulated realm divorced from the responsibilities and checking functions of government. In recognition of that danger, I would hold that Griffin's element of class-based discrimination is met whenever private conspirators target their actions at members of a protected class, by virtue of their class characteristics, and deprive them of their equal enjoyment of the rights accorded them under law.
This case is not about abortion. It most assuredly is not about "the disfavoring of abortions" by state legislatures.
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