A Crack in Budda's Smile?

All six of you that regularly submit yourselves to this blog's blatherings know that the only thing that lights my lamp faster than a good Commerce Clause kerfuffel is an old fashioned tea spitting over the Hobbs Act.Can there be anything more exciting than deep legal ruminations as to whether federal law preempts local prohibitions on extortion and racketeering? Heck no! At least not during baseball season. It becomes especially titilating when the question presented involves both "a woman's right to choose" and the reach of federal power. I must admit that when the Supreme Court of the United States hands down a unanimous decision involving abortion rights, the Hobbs Act AND the Commerce Cluase, well, I just just get all sticky.

Mind you, this post is not about abortion rights, but then neither is today's decision in Scheidler v. National Organization for Women, Inc. , despite the early hand-wringing from the main stream media. Honest to God, the New York Times' front page headline read "Supreme Court Rules For Anti-Abortion Groups." An hour later (no doubt after the Times' editorial board read the decision) the story dropped to page 3 and began fading under the banner "Abortion Foes Win Dispute." And rightly so, as this case (which has now been up to the Black Nine three times over the last 20 years) is not about abortion, but whether the Hobbs Act prohibitions encompass the "threat of physical violence" where there is no concomittant attempt of "robbery or extortion."

In what must be one of the most succinct opinions ever drafted by Justice Breyer, eight of The Nine agreed (Alito did not take part) that the plain language of the Hobbs Act requires that "threats" of violence be accompanied by attempts of robbery and/or extortion; proof of which N.O.W. simply could not produce.

All of which raises an interesting question as to "property rights" under Roe v. Wade. As you no doubt recall, under the Hobbs Act, it is necessary that there be both a deprivation to the victim and an acquisition of property by another for extortion to exist under the Act. The erstwhile extortionist must “obtain” something of value that he can “exercise, transfer, or sell.” United States v. Nardello 393 U.S. 286, 290 (1969); see also, Scheidler v. National Organization For Women, Inc. , 537 U.S. 393 (2005) (predecessor to today's decision, holding that merely depriving a person of their property right of exclusive control of their business assets was insufficient to constitute extortion under the Hobbs Act where the official could not exercise the property right so deprived). Today's decision further narrows the fHobbs Act's context to require that the deprivation of rights under the Hobbs Act be tied, in some fashion, to "robbery or extortion."

When taken at face value, today's decision in Scheidler does not significantly alter the Court's somewhat fatalistic stance towards Roe. It does, however, serve as backhanded recognition from the bench that the sole foundation for abortion rights currently rests upon the sands of "penumbras and emanations" that drift with society to form a constitutional "right to privacy." Viewed through a longer lens, however, the Court's repeated refusal to extend federal statutory protection to abortion rights (beyond that explicitly stated by Congress) significantly reduces the avenues of argument available in support of a woman's right to choose. In other words, by rejecting argument after argument that federal law (as opposed to Constitutional right) protects abortion on demand, the Supreme Court is satisfied to let the entire matter rest on the issue of constitutional "privacy."

Of course, no sane lawyer would choose to advance such an argument if he had a statute in his pocket. So.....

Court to Congress: "Here's the ball. Now shoot."
Congress: *hic*

And there you go.