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imposing what amounts to a policy of discrimination in place of the Constitution's mandate, their action would be tantamount to state action and be subject as such to undoubted congressional authority to penalize any exercise of state police power that would abridge the equal protection guaranteed by the Fourteenth Amendment. That is to say, Congress is no less able to legislate against unconstitutional exercises of state authority by conspiratorial usurpation than it is to counter unconstitutional action taken by those formally vested with state authority.

This equation of actionable conspiracies with state action is indeed central to the reading given to the prevention clause by the Griffin Court. In reasoning that the deprivation clause contained no state action requirement, the Court contrasted the text of that clause with the language of three other provisions indicating, respectively, "three possible forms for a state action limitation on § 1985(3)." Griffin, 403 U. S., at 98. One such limitation that might have been read into the deprivation clause was "that there must be interference with or influence upon state authorities." Ibid. The Court declined to tack that requirement onto the deprivation clause because its inclusion in the prevention clause indicated that Congress intended it to apply there and nowhere else. The relevant point here is that the whole basis of the Griffin Court's analysis was that "interference with or influence on state authorities" was state action, and it follows from Griffin's own premises that no guarantee-against-privateencroachment condition would have been needed even then to allay any apprehension that in reaching the private conspiracies described by the prevention clause, Congress might be exceeding its authority under §5 of the Fourteenth Amendment.

Accordingly, I conclude that the prevention clause may be applied to a conspiracy intended to hobble or overwhelm the capacity of duly constituted state police authorities to secure equal protection of the laws, even when the conspirators' ani

Opinion of SOUTER, J.

mus is not based on race or a like class characteristic, and even when the ultimate object of the conspiracy is to violate a constitutional guarantee that applies solely against state action.

V

Turning now to the application of the prevention clause as I thus read it, I conclude that a conspiracy falls within the terms of the prevention clause when its purpose is to hinder or prevent law enforcement authorities from giving normal police protection to women attempting to exercise the right to abortion recognized in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and Roe v. Wade, 410 U. S. 113 (1973). My reason for this is not a view that a State's frustration of an individual's choice to obtain an abortion would, without more, violate equal protection, but that a classification necessarily lacks any positive relationship to a legitimate state purpose, and consequently fails rationalbasis scrutiny, when it withdraws a general public benefit on account of the exercise of a right otherwise guaranteed by the Constitution. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972) (applying the Equal Protection Clause and finding no "appropriate governmental interest suitably furthered" by a discrimination that would independently violate the First Amendment). While such a discrimination, were it wrought by the State, could be treated as a burden on the exercise of a right protected by a substantive due process guarantee, see Casey, supra, and forbidden as such, the denial of generally available civic benefits to one group solely because its members seek what the Constitution guarantees would just as clearly be a classification for a forbidden purpose, which is to say, independently a violation of equal protection. See Mosley, supra; Carey v. Brown, 447 U. S. 455 (1980).9 When private individuals conspire for the pur

"I emphasize the substantive due process guarantee at issue here because my analysis rests on the fact that, treating the conspirators as the State, the imposition of restrictions on abortion more strict than those

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pose of arrogating and, in effect, exercising the State's power in a way that would thus violate equal protection if so exercised by state officials, the conspiracy becomes actionable when implemented by an act "whereby [a person] is injured in his person or property, or deprived of . . . any right or privilege of a citizen of the United States." § 1985(3).10

permitted under the Constitution is not a legitimate public purpose. I do not reach the question whether and how the equal protection requirement in the prevention clause would be violated by a conspiracy which, if charged to the State, would amount to a denial of police protection to individuals who are not attempting to exercise a constitutional right.

10 The scope of this construction of the prevention clause is limited. It certainly would not forbid any conduct, unlike that at issue here, protected by the First Amendment. Nor would it reach even demonstrations that have only the incidental effect of overwhelming local police authorities, for the statute by its terms requires a "purpose" to "preven[t] or hinde[r] the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws." Indeed, it would not necessarily reach even most types of civil disobedience that may be intended to overwhelm police by inviting multiple arrests, because the purpose of these is not ordinarily to discriminate against individuals on the basis of their exercise of an independently protected constitutional right. See n. 9, supra.

As to the lunch counter sit-in protests of the early 1960's, to which the Court refers, see ante, at 282, and n. 14, if the cases that made it to this Court are representative, these normally were not "mass" demonstrations, but rather led to the arrests of small groups of orderly students who refused to leave segregated establishments when requested to do so. See, e. g., Bouie v. City of Columbia, 378 U. S. 347, 348 (1964) ("two Negro college students"); Bell v. Maryland, 378 U. S. 226, 227 (1964) ("12 Negro students"); Robinson v. Florida, 378 U. S. 153 (1964) (an integrated group of 18 blacks and whites); Barr v. City of Columbia, 378 U. S. 146, 147 (1964) ("five Negro college students"); Griffin v. Maryland, 378 U. S. 130, 132 (1964) ("five young Negroes"); Lombard v. Louisiana, 373 U. S. 267, 268 (1963) ("three Negro and one white college students" seeking service at a refreshment counter "designed to accommodate 24 persons"); Peterson v. Greenville, 373 U. S. 244, 245, 247 (1963) (10 "Negro boys and girls" seeking service at a lunch counter that "was designed to accommodate 59 persons").

In any event, under the construction I adopt today, a lunch counter sitin would not have been actionable even if police had been overwhelmed

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VI

The only remaining question is whether respondents have demonstrated, and the District Court has found, a conspiracy

because, for example, protesters arrested for trespass were immediately replaced by others who prevented police from barring integration of the lunch counter, leading to mass arrests. This is so because the protesters would not have deprived the owner of the segregated lunch counter of any independently protected constitutional right. See Roberts v. United States Jaycees, 468 U. S. 609, 618-622 (1984) (no associational right on the part of individual members to exclude women from the Jaycees); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258-261 (1964) (Title II of the Civil Rights Act of 1964 prohibiting discrimination in places of public accommodation does not work a deprivation of liberty or property without due process of law, nor a taking of property without just compensation).

The Court correctly describes the holding of Heart of Atlanta, but then ignores the import of that holding in reaching its conclusion. It argues that government action that "would have been the equivalent of what those conducting the sit-ins did," i. e., government action preventing restaurant owners from discriminating in provision of service against blacks, would have violated the Constitution by "physically occupy[ing the restaurant owners'] property without due process and without just compensation." See ante, at 282, n. 14. Whether the "property" to which the Court refers is the lunch counter itself, or the restaurant owners' "right to exclude blacks from their establishments" on the basis of race, ibid., assuming that could even be described as one of that bundle of rights that made up such a restaurant owner's property (a dubious proposition, see, e. g., Lane v. Cotton, 12 Mod. 472, 484 (K. B. 1701) (common-law duty of innkeepers to serve potential patrons equally, without regard to personal preference, so long as they can be accommodated)), the Court does not explain how, if such government action would violate the Constitution, Title II of the Civil Rights Act could provide "legal warrant for the physical occupation," ante, at 282, n. 14, without similarly offending the Takings and Due Process Clauses.

There is, additionally, an independent reason apart from the absence of any constitutional right on the restaurant owner's part, that a sit-in demonstration would not be actionable under my construction of the prevention clause. Although the question was left open in the sit-in cases decided by this Court in 1963 and 1964, see Paulsen, The Sit-In Cases of 1964: "But Answer Came There None," 1964 S. Ct. Rev. 137 (1964), and was then largely mooted by the adoption of the Civil Rights Act of 1964,

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thus actionable under the prevention clause.11 While I think that all of the requisite findings would be supportable on this record, one such finding has not been expressly made.

The District Court found that petitioners conspired to cause respondent clinics to cease operations by trespassing on their property and physically blocking entry into and exit from the clinics, see 726 F. Supp., at 1489, rendering existing and prospective patients, as well as physicians and medical staff, unable to enter the clinic to render or receive medical counseling or advice. Ibid. The District Court found that petitioners' actions were characteristically undertaken without notice and typically overwhelmed local police officials invested with the law enforcement component of the State's police power, rendering them unable for a substantial period to give or secure the police protection otherwise extended to all persons going about their lawful business on the streets and on private premises. Id., at 1489, 1490, and n. 4. The victims were chosen because they would be making choices falling within the scope of recognized substantive due process protection, id., at 1489, choices that may not be made the basis for discriminatory state classifications applied to deny state services routinely made available to all persons. The District Court found that the effects of thus replacing constituted authority with a lawless regime would create a substantial risk of physical harm, ibid., and of damage to respondents' property, id., at 1489–1490, a conclusion amply

government enforcement of private segregation by use of a state trespass law, rather than "securing to all persons . . . the equal protection of the laws," itself amounted to an unconstitutional act in violation of the Equal Protection Clause of the Fourteenth Amendment. Cf. Shelley v. Kraemer, 334 U. S. 1 (1948).

11 As the Court observes, ante, at 285, n. 16, I do not address the propriety of injunctive relief in this case even though it was addressed by the parties in supplemental briefs on reargument. Unlike the prevention clause question, it is not "fairly included" within the questions upon which certiorari was granted, and therefore its consideration by the Court would be inappropriate. See this Court's Rule 14.1(a).