Justices Determine that Key State Anti-Confinement Laws
Do Not Violate U.S. Constitution
In what can only be considered a monumental victory for the right of Americans to establish more humane standards for farm animals, the U.S. Supreme Court issued a decision upholding California’s Proposition 12, a 2018 voter-approved ballot measure that restricts the sale of pork, eggs, and veal coming from factory farms that rely on intensive confinement systems.
The National Pork Producers Council (NPPC) suffered one more defeat in its attempt to roll back protections for pigs – in this case, with a 5 – 4 ruling made by the highest court in the land.
Justice Neil Gorsuch, who penned the majority decision joined by Justices Clarence Thomas, Elena Kagan, Sonja Sotomayor, and Amy Coney Barrett, methodically and decisively rejected every argument of the National Pork Producers Council (NPPC). The pork producers did their best to argue that California’s ban on gestation crate-raised pork will have a catastrophic economic impact. Justice Gorsuch was having none of it.
“[NPPC] invite[s] us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders,” he wrote. “We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”
This decision punctuates a stream of legal and ballot-box defeats for an industry that chose routine immobilization of breeding pigs as a routine housing strategy. The NPPC, whose ranks include foreign-owned agribusiness members such as Smithfield and JBS, have lost every anti-gestation crate ballot measure qualified for statewide consideration in the 21st century. They came out on the losing side of anti-gestation crate ballot measures first lost in Florida in 2002, then in Arizona four years later, next in California in 2008 on Prop 2, in Massachusetts in 2016 on Question 3, and then a second time in California in 2018, when voters augmented animal protection standards in passing Prop 12. Question 3 and Prop 12 took the anti-confinement laws to a new level by stipulating that all pork and eggs sold in the states must come from farms that give the animals sufficient space, regardless of where the production occurs.
While affirming the rights of California’s citizens to keep inhumanely sourced meat products off supermarket shelves and restaurant breakfast and dinner plates, the decision affirms that animal welfare concerns are cognizable and that the states can play a meaningful role in addressing societal concerns about them. NPPC had argued in its brief that Californians can have little interest in protecting the welfare of animals raised out of state and that the Court should not afford animal welfare considerations much, if any, weight when balancing it with the economic burden on the industry having to comply with humane animal husbandry practices. Gorsuch made clear that the court was in no position to determine the relative importance of these two competing factors:
So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours.
With the SCOTUS decision looming, state authorities in Massachusetts had put a hold on implementation of Question 3 – a law similar to California’s and also written to take effect in 2022. The court’s decision should allow imminent implementation of that law, which was approved with an astonishing 78 percent of the vote.
“In a functioning democracy, policy choices like these usually belong to the people and their elected representatives,” Gorsuch stated in rejecting industry’s attempt to use the Court to override the public decision-making process. “They are entitled to weigh the relevant ‘political and economic’ costs and benefits for themselves.” Prop 12, too, should now go into full effect.
Justice Gorsuch and the four other justices who sided with him were not swayed by the efforts of pork-industry barons to unwind the wishes of millions of voters and nullify state laws that were thoroughly debated in advance of the elections.
Today, many States prohibit the sale of horsemeat for human consumption. See Cavel Int’l, Inc. v. Madigan, 500 F. 3d 551, 552–555 (CA7 2007). But these prohibitions “har[m] the interstate market” for horsemeat by denying outlets for its sale. Not only that, they distort the market for animal products more generally by pressuring horsemeat manufacturers to transition to different products, ones they can lawfully sell nationwide. Under the lead dissent’s test, all it would take is one complaint from an unhappy out-of-state producer and—presto—the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.”
While today we celebrate the Courtroom victory and the end of the road for the industry’s maneuvering in the federal courts, we know that tomorrow will bring a new fight. As Justice Gorsuch states, the industry is free to petition Congress, noting “… so far, Congress has declined the producers’ sustained entreaties for new legislation. And with that history in mind, it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.”
That pivot to Congress is already in the works. A U.S. Senator announced today he’ll introduce the Exposing Agricultural Trade Suppression (EATS) Act, which would federally preempt states from imposing standards or conditions on the production of any agricultural product sold in interstate commerce.
We’ll meet our political adversaries on the field of play in Congress. But, importantly, they move ahead without their main argument: that the U.S. Constitution bars states from restricting state commerce based on animal welfare and food-safety concerns.
Their legislative argument suffers without that claim. Now their effort is just a bald-faced play to undo the will of the people. But with polls showing that a majority of people in every pig-producing state strongly oppose gestation crates, we are moving toward a national consensus on this issue. The pork producers will have a hard time confronting that truth. U.S. Representative Veronica Escobar has just recently introduced a bill, H.R. 2939, to establish a national ban on gestation crates and to create a level playing field across the nation.
It’s always an unpleasant thing to watch when a food business tells its customers to sit down, shut up, and eat what’s put in front of them. The pork industry is one of many sectors that provides foods that deliver protein and satisfy the palate. There are many choices in the marketplace, and American voters have been telling the industry for a while that, while the taste is good, there’s a distaste when it comes to cruelty.
Wayne Pacelle is president of Animal Wellness Action and the Center for a Humane Economy. Scott Edwards is general counsel of the two organizations.