(WASHINGTON) — The Supreme Court justices appeared deeply conflicted on Tuesday over the treatment of pregnant pigs, the prices consumers pay at the grocery store and California’s attempt to shape the pork industry with a ban on meat from mother sows kept in too narrowly confined spaces.
An oral argument in the case, National Pork Producers v. Ross, was scheduled for 70 minutes — but stretched to nearly double that as a consequential debate played out, pitting California voters’ moral views against a critical national industry that feeds millions of Americans every year.
At issue is California’s Proposition 12, passed in 2018, which would ban the sale of all pork from mother pigs housed in cages or crowded group pens with less than 24-square-feet each — the amount of room needed for an animal to turn around. Animal welfare advocates have called the confinement “cruelty.”
The nation’s $20-billion pork industry wants the justices to strike down the legislation, contending its example would empower other states to enforce their regulations and values nationwide.
“If Proposition 12 is lawful,” warned attorney Timothy Bishop, representing the National Pork Producers Council, “Oregon can condition imports on workers being paid the minimum wage. And Texas can condition sales on the producer employing only lawful U.S. residents. And at that point, we have truly abandoned the framers’ idea of a national market.”
While 63% of California voters approved Prop 12, it would have the biggest impact elsewhere: the Golden State consumes 13% of U.S. pork, the largest market in the country, but produces just 1%, according to the U.S. Department of Agriculture.
Farmers in heavy pork-producing states like Iowa, Minnesota and North Carolina say it will cost billions of dollars to retool their operations to comply with California’s law, resulting in less efficient production and, in turn, higher store prices for consumers.
“Even if it’s only $0.25 a pound or something, that adds up quite a bit over time,” economist Barry Goodwin, a professor at North Carolina State University who specializes in the pork industry, told ABC News.
The Biden administration has taken the side of pork farmers, concerned, they say, that a single state should not be allowed to upend a major American industry.
The Constitution’s so-called “dormant” commerce clause has been widely interpreted to prohibit states from passing laws that would have an excessive impact on interstate trade or the economic interests of other states.
The Supreme Court’s view of the clause will be key to the fate of Prop 12. Several of the justices indicated Tuesday that they shared the pork-producing industry’s concerns.
Justice Samuel Alito suggested he worried about the law setting off a tit-for-tat among states. “Could a state say, ‘We’re really concerned about water shortages, so we’re going to prohibit … the sale within our borders of any almonds where the trees are irrigated’?” Alito asked.
“If it’s focused on the sale within their borders,” replied California Solicitor General Michael Mongan, “I think that the logical conclusion of our position is that they could do that.”
Justice Brett Kavanaugh raised hypotheticals, too: “What about a law that says, ‘You can’t sell fruit in our state if it’s produced — handled — by people who are not in the country legally’? Is that state law permissible?”
Justice Elena Kagan, noting we “live in a divided country,” worried about “balkanization.”
“Do we want to live in a world where we’re constantly at each other’s throats and, you know, Texas is at war with California and California at war with Texas?” she said.
Chief Justice John Roberts focused on what he saw as the role “morality” plays in California’s regulatory approach.
“I think people in some states, maybe the ones that produce a lot of pork, in Iowa or North Carolina or Indiana, may think there’s a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices,” Roberts said. “But under your analysis, it’s California’s view of morality that prevails over the views of people in other states because of the market power that they have.”
At the same time, many of the justices seemed to agree that states should have broad leeway in taking steps to protect the health and safety of residents as they see fit. California voters overwhelmingly approved Prop 12, in part, based on arguments that confinement of pigs is harmful to human health.
“I know you’re going to tell me there’s no scientific proof, but there is certainly a reasonable basis for these people to think this,” said Justice Sonia Sotomayor.
“We don’t think there’s a reasonable basis,” Bishop, the pork industry attorney, replied.
Justice Neil Gorsuch seemed most inclined to side with California. “Californians … voted for this law,” he said. “They don’t wish to have California be complicit, even indirectly, in livestock practices that they find abhorrent, wherever they occur, in California or anywhere else. Why isn’t that a correct understanding of California’s asserted moral interest and why isn’t that an in-state moral interest?”
The justices could narrowly decide the case by simply allowing the pork producers’ legal challenge to move forward and go to trial in lower courts, saying little else and stopping short of a conclusion on the legality of California’s law.
The high court could, alternatively, take a more sweeping approach and clarify a test for when and how a state law violates the Constitution’s commerce clause, perhaps deciding the fate of Prop 12 outright.
During Tuesday’s arguments, several of the justices appeared to feel out a middle ground.
“Why can’t California solve for its morality issue in a different way,” asked Justice Ketanji Brown Jackson, “[and] simply allow California to express its morality interest through a less burdensome means, like segregating Iowa’s pork when it comes in, putting a big label over it that says ‘this is immorally produced’ or whatever — and that won’t hurt Iowa as much? Why can’t we say that that’s the way this should be?”
As the court took up the case, there were already signs market forces and consumer preferences have been nudging producers toward what animal advocates consider more ethical practices.
“They need more farmers doing it this way to meet the demand,” Ruth Jovaag, co-owner of the Jovaag Family Farm in Austin, Minnesota, previously told ABC News. “There’s not enough supply.”
The Jovaag Family Farm is part of the Niman Ranch network of family farmers who specialize in certified “humanely-raised” pigs and other animals. They abandoned gestation stalls, or crates, years ago and now give pregnant sows more than 60-square-feet each, piles of comfortable hay and fresh air and sunlight.
Mike Boerboom, a third-generation hog farmer who raises thousands of sows in confinement every year, hopes the justices will conclude that Californians have gone too far.
“We produce a lot of food to feed the rest of the country,” he told ABC. “It’s California today,” he added, “but are there going to be more mandates that come potentially from every other state? That’s the fear.”
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