In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.
The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.
The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition. But Prop 12 does not discriminate. It applies equally to pork from pigs raised in California and pork from pigs raised in Iowa or any other state. Thus, the anti-discrimination prong of the dormant Commerce Clause has no bearing on Prop 12. In recognition of that fact, the plaintiffs do not raise a discrimination claim in their petition to the Supreme Court.
The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.
As I shall explain, these claims are problematic. The Court should uphold Prop 12. That said, the case could have far-reaching implications for a seemingly unrelated question: whether states may validly proscribe receipt of abortion pills from other states.
The Balancing Test
The balancing prong of dormant Commerce Clause doctrine recognizes that even non-discriminatory state laws can impede interstate commerce to such a degree that they implicate constitutional concerns. The 1959 case of Bibb v. Navajo Freight Lines is a classic example. Illinois required trucks to have contoured mud guards, whereas Arkansas required straight ones. Other states required mud guards but left to the vehicle operator the choice between contoured and straight ones. There was scant evidence that one type or the other resulted in a dramatic safety difference.
Accordingly, in Bibb the Court struck down the Illinois law and presumably would have struck down the Arkansas law too had that one reached the Court: had the Court allowed both state laws to stand, truckers passing through both Illinois and Arkansas would need to stop at the state line to change mud guards, a time-consuming and pointless exercise.
In Bibb itself, the Court noted that it was highly unusual to find that a nondiscriminatory burden on interstate commerce was unconstitutional. The ensuing years have vindicated that observation. Indeed, in a 1988 case, Justice Antonin Scalia famously complained that “balancing” is an inapt metaphor for what courts do when evaluating non-discriminatory burdens on interstate commerce because “the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.”
Justice Scalia died in 2016, but Justice Clarence Thomas, who still sits on the Court, has gone even further. Dissenting in a 1997 case, he objected that the entire dormant “Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.”
To be sure, the Court as a whole has not abandoned the dormant Commerce Clause or even the balancing test for non-discriminatory burdens. Still, given the trend lines, any dormant Commerce Clause challenge based on the balancing test faces a steep uphill battle.
Meanwhile, California argues that the appeals court correctly concluded that the balancing test does not even apply in the Prop 12 case. Citing cases over the last five decades, the state contends that unless a nominally non-discriminatory state law is a mere disguise for discrimination against interstate commerce or directly regulates interstate channels of commerce, the Court rejects dormant Commerce Clause challenges before even reaching the balancing test.
Is it possible that the Court will nonetheless invalidate Prop 12 as excessively burdensome? Sure. But the smart money is on the Court rejecting this claim.
The plaintiffs argue in the alternative that Prop 12 regulates extraterritorially. The dormant Commerce Clause, other constitutional provisions, and indeed the entire federal structure of the United States government forbid extraterritorial regulation.
The problem for the plaintiffs, however, is that Prop 12 does not regulate extraterritorially. It regulates products sold in California. No one outside of California will go to prison or be held liable in civil damages or legally answerable in any other way for how they treat their pigs, but they will be barred from marketing pork products in California if those products do not conform to California law.
Yes, California’s law has extraterritorial effect, but that is true of a great many state laws. State product liability law will affect how products outside the state are designed and manufactured. State labeling laws affect how they are packaged. Here, California asserts, among other things, that the welfare standards for raising pigs affect the health and safety of the products sold in the state. Whether those claims are true or not, the state argues, goes to the wisdom of Prop 12, not its constitutionality.
The plaintiffs’ extraterritoriality challenge rests on two key moves. First, they contend that because well over 99 percent of the pork sold in California comes from pigs raised out of state, Prop 12 is effectively completely extraterritorial. Yet while this argument tends to show that Prop 12’s burden is felt almost exclusively extraterritorially, that is consistent with in-state regulation having extraterritorial effect.
The plaintiffs’ second move is more interesting. Noting that the health benefits of the law are negligible, the plaintiffs observe that Prop 12’s real purpose is, as it states expressly,
“to prevent animal cruelty by phasing out extreme methods of farm animal confinement.” Put differently, the plaintiffs contend that California is regulating for the sake of the pigs in other states, not for the sake of California consumers.
Extraterritoriality, Morals, and Abortion
Just as California may regulate goods sold in state to protect the health, safety, and well-being of its citizens, so may it regulate on moral grounds. Here, however, it looks like California is simply imposing its moral views about animal welfare on other states. Is it?
Not necessarily. Consider an analogy. Suppose that some state permitted the consumption of human flesh. Surely California could ban the sale of human products marketed to cannibals, even if the only humans from whom the flesh came died or were killed outside the state. And if California can outright ban cannibalism, surely it can also take the lesser step of, say, permitting the sale of human flesh for consumption only if it comes from the corpses of people who consented to their post-mortem flesh being eaten. There is no difference in principle between such a hypothetical “consensual cannibalism” law and Prop 12’s concern for animal welfare.
But wait. If California can exclude pork products based on moral opposition to the treatment of the pigs from which they came, can states with strict abortion prohibitions exclude abortion pills sent from other states? So it would seem. Indeed, the argument for such a power seems even stronger than the argument for Prop 12. Whereas Prop 12 vindicates the state’s moral interest in post-hoc complicity with an out-of-state evil (animal cruelty), a ban on the receipt of abortion pills sent from out of state aims at what the state regards as a direct evil in-state (abortion).
To be clear, I am not claiming that abortion pills are worse than animal cruelty. At least with respect to the early terminations for which medication abortion works, I think the opposite: as Professor Sherry Colb and I argued at length in our book Beating Hearts: Abortion and Animal Rights, abortion does not raise serious moral issues until after a fetus is capable of having experiences, whereas exploitation of non-human animals by humans for food is almost invariably cruel and unnecessary. In saying that states have a stronger case for excluding abortion pills than for excluding pork from inhumanely raised pigs, I am referring only to the site at which the supposed evil principally occurs; I make no assumptions about the underlying moral judgment.
So would a ruling for California in NPPC mean that states also have the power to ban receipt of abortion pills from out of state? Maybe not. At least two powerful distinctions are available.
First, although the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.
Second, abortion pill bans differ from Prop 12 in a key way. In banning abortion pills, states deny them solely to people who wish to end their pregnancies. State abortion pill bans impose the state’s morality on its citizens. By contrast, Prop 12 facilitates the exercise of the personal morality of the majority of Californians who voted for it.
How so? To the average consumer, by the time it comes to market, pork from inhumanely raised pigs is nearly impossible to distinguish from pork from humanely raised (or what I would describe as slightly less inhumanely raised) pigs. In voting for Prop 12, Californians were saying they were willing to sacrifice the option of purchasing cheaper pork from pigs raised to lower humane treatment standards in order to ensure that the pork they did purchase came from pigs who were treated according to higher standards. In so doing, of course, they overrode the liberty of those Californians who were not willing to make that economic sacrifice, but unlike an abortion pill ban, which impacts only those people whose freedom it restricts, most of the people affected by Prop 12 welcome its impact (as we can infer from the fact that the referendum passed).
Whether these or other distinctions between NPPC and a future Supreme Court challenge to abortion pill bans will ultimately persuade the Justices remains to be seen. In both contexts, as in so many others, once a case reaches the Supreme Court there is usually sufficient legal uncertainty that jurists can vote their ideological druthers while pretending—perhaps even to themselves—that they are applying high-minded neutral principles involving federalism, balancing, and limits on extraterritorial legislation.