Last week, in National Pork Producers Council (NPPC) v. Ross, the Supreme Court rejected a challenge by a pork industry trade group to California’s Proposition 12—which bars in-state sale of pork unless the pigs whose slaughtered bodies produced that pork were raised in accordance with the state’s minimum standards for humane treatment of the slaughtered pigs themselves and the sows who birthed and suckled them as piglets. Writing in part for a majority and in part for only a plurality, Justice Neil Gorsuch rejected NPPC’s contention that the impact of Prop 12 on pig farmers outside California rendered it impermissibly “extraterritorial” or unduly burdensome on interstate commerce.
NPPC was closely watched because of its potential implications for what the plaintiffs’ brief and oral advocacy warned would be the resulting “balkanization” of the national market if Prop 12 were upheld. Justice Brett Kavanaugh echoed those warnings in his separate opinion concurring in part and dissenting in part. He suggested that the lead opinion’s approach could give the green light to “a state law prohibit[ing] the sale of fruit picked by noncitizens who are unlawfully in the country,” “a state law prohibit[ing] the sale of goods produced by workers paid less than $20 per hour,” or (quoting an amicus brief), “a state law prohibit[ing] ‘the retail sale of goods from producers that do not pay for employees’ birth control or abortions’ (or alternatively, that do pay for employees’ birth control or abortions).”
Abortion looms especially large in the minds of many observers who have paid attention to NPPC, including me. In August of last year, I wrote a column on this site raising the worry that a sweeping decision in NPPC could make it easier for states to forbid residents from obtaining abortion pills shipped or mailed from other states. After last week’s ruling, Professor Mary Ziegler wrote an essay in the Boston Globe suggesting that NPPC could make it harder for abortion-rights advocates to challenge state laws forbidding residents from obtaining abortions in other states.
However, as I acknowledged in a follow-up column after the oral argument, NPPC does not appear likely to have substantial implications for abortion. The written opinions in the case only confirm that impression.
Thus, Professor Ziegler errs when she writes that “the Court held that states could sometimes apply their laws extraterritorially.” It did nothing of the sort. Prop 12 does not apply extraterritorially, and the plaintiffs did not even suggest otherwise. Rather, they argued for a virtually per se rule invalidating even non-discriminatory state laws governing in-state conduct if those laws have the “practical effect of controlling commerce outside the State.” In rejecting that proposition, Justice Gorsuch (speaking for the Court on this point) simply reaffirmed the longstanding principle that states may generally regulate conduct within their territory despite the fact that, given the interconnectedness of the national market, such regulations often have extraterritorial effects.
There are additional reasons to think NPPC will not play a substantial role in litigation over abortion. State laws that restrict residents’ ability to obtain abortions in other states constitute expressly extraterritorial legislation and also infringe the constitutional right to travel, which, as Professor Ziegler notes, has “an impressive constitutional pedigree, even for justices who demand that rights be rooted in a particular vision of the nation’s history and tradition.”
Meanwhile, assuming that Judge Matthew Kacsmaryk’s deeply flawed invalidation of FDA approval of the abortion pill mifepristone never goes into effect, there is a powerful argument that state bans on the receipt of such pills are pre-empted by federal law. By contrast, although Congress could pre-empt state laws like Prop 12, it has not done so.
The non-ideological lineup in NPPC should give further reassurance that—with the exception of the concerns raised by Justice Kavanaugh in his solo opinion—none of the Justices perceived the case as having far-reaching implications for abortion or other hot-button issues. Democratic appointees Justices Sonia Sotomayor and Elena Kagan as well as Republican appointees Justices Clarence Thomas and Amy Coney Barrett each joined parts of Justice Gorsuch’s opinion, while the principal dissent by Republican appointee Chief Justice John Roberts was joined by his fellow Republican appointees Justices Samuel Alito and Kavanaugh, as well as by Democratic appointee Justice Ketanji Brown Jackson. Nothing about that mishmash indicates that the Justices perceived NPPC as implicating abortion rights.
What About the Pigs?
The fact that NPPC does not appear to implicate many other issues does not mean the case lacks importance. On the contrary, the case has substantial economic implications and, more directly, makes a statement about animal welfare laws.
The Supreme Court has never doubted that states may legitimately legislate to protect animal welfare, but it has rarely shown much interest in the subject. A notable exception is Justice Harry A. Blackmun’s concurrence in the judgment in a 1993 religious freedom case, in which he wrote that “a law that sincerely pursued the goal of protecting animals from cruel treatment” would raise a concern not “to be treated lightly,” even when pitted against a Free Exercise claim. Another noteworthy exception is Justice Alito’s dissent in a 2010 case in which the majority invalidated as overly broad a law that forbade distribution of depictions of cruelty to animals, including, most egregiously, “crush videos” in which animals such as kittens are stomped to death for the fetishistic gratification of their viewers. “The animals used in crush videos are living creatures that experience excruciating pain,” Justice Alito pointedly observed.
Justice Gorsuch’s lead opinion in NPPC likewise treats with respect the pigs whose fate is the core concern of the challenged provision of Prop 12. Although the dominant leitmotif of the opinion is that state legislature and Congress are better positioned than judges to weigh the benefits and burdens of measures like Prop 12, Justice Gorsuch repeatedly acknowledges that California is entitled to pursue its moral interest in addressing cruelty to animals.
Only Justice Kavanaugh in his separate opinion casts any doubt on the substantiality of that interest. He refers to California’s “moral . . . preferences,” as though the state’s concern for the welfare of pigs is a mere taste, like the preference for chocolate over vanilla. But again, he is alone in expressing indifference to the pigs affected by the case. Accordingly, animal welfare advocates can take some measure of satisfaction from the Court’s vindication of the cause.
Glass Half Empty
The celebration should nonetheless be muted. Prop 12’s critics say that it will exact compliance costs, which will raise the price of pork. I hope they’re right because basic economics tells us that an increase in price will in turn reduce demand. Each year, over 100 million pigs, 8 billion chickens, and billions of other animals are killed to satisfy Americans’ food preferences. (Provisions of California law that were not at issue in NPPC apply to egg-laying hens and calves raised for veal.) Thus, even a slight reduction in demand would reduce supply by the millions. Yet billions more of what Justice Alito rightly called “living creatures” would continue to be exploited and killed.
And while compliance with Prop 12 may marginally reduce the suffering of sows, piglets, and hens, at most it will render pig farming a little bit less cruel, not remotely humane. The plaintiffs and their amici who claimed that gestation crates for sows actually protect them from cruelty were wrong to suggest that therefore Prop 12 is unconstitutional, but Prop 12 still leaves pigs and other animals subject to extraordinarily cruel treatment.
That is to say nothing of the harm to humans that pig farming causes, from the physical and emotional toll on slaughterhouse workers, to air and water pollution, to zoonotic pandemics. Because pigs are susceptible to both avian and human influenza, they can serve as a deadly “mixing vessel” for new virulent strains.
All of that said, animal welfare advocates should be glad that the Supreme Court did not invalidate California’s baby step towards addressing some of the cruelty of animal agriculture. Although Prop 12 and the NPPC ruling upholding it leave billions of sentient creatures subject to unspeakable suffering, in recognizing cruelty to animals as a substantial moral concern, they could pave the way to more substantial legal reforms and changes in personal consumption choices.
