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The Supreme Court is about to decide the fate of millions of pigs

Californians passed a landmark law that bans cages for pigs. Now the Supreme Court could overturn it.

In 2018, California voters passed a state ballot measure to ban the sale of pork from sows confined in gestation crates. Next week, the Supreme Court will hear oral arguments in a case that challenges the law.
Courtesy of the Humane Society of the United States

The Supreme Court regularly makes decisions that directly affect the lives of tens of millions of Americans. But next week, the Court will hear oral arguments in a case that could decide the fate of millions of pigs.

The case — National Pork Producers Council v. Ross — hinges on a simple question: Can California set its own standards for how pigs are treated on farms, even when they’re raised in other states?

The case centers, quite literally, on how sausage gets made in the US. Each year, over 6 million female breeding pigs, or sows, are raised in “gestation crates” — narrow metal crates that confine the pigs so tightly they’re unable to turn around for the duration of their four-month pregnancies (and they have about four pregnancies in their three- to four-year lifetimes). As the pioneering animal welfare scientist Temple Grandin once put it, the crates are akin to forcing a human to live much of their life in an airline seat.

The American Public Health Association says confining pigs so intensively also increases their stress levels and weakens their immune systems, which makes them more susceptible to infectious disease. (And given the ease with which some zoonotic viruses can pass from swine to humans, that threatens us as well.)

In 2018, over 62 percent of California voters supported a state ballot measure called Proposition 12 that would ban the crates and require sows be raised with at least 24 square feet of space. Importantly, the measure applied whether or not the pigs had been raised in California, so all whole, uncooked pork sold in the state would be required to be produced according to California’s standard. Given the vast size of the state’s market, it’s having a transformative effect for pigs across the country — just as California’s stricter emissions standards for automobiles have changed the way cars are made nationwide.

The law has similar provisions for cage-free eggs and crate-free veal, which have already gone into effect — the challenge in the Supreme Court only covers pork, which will go into effect in five months. (Disclosure: The ballot measure effort was led by the Humane Society of the United States, an organization I worked for from 2012 to 2017.)

The win was a watershed moment for the movement against factory farming, with some 1 million pigs, 40 million hens, and tens of thousands of calves to be taken out of cages each year once the law is fully implemented. It also built momentum to banish cages for hens from other states in the following years.

“What may seem like a small, incremental change on paper, to the life of that pig, it’s immense,” says Chris Green, executive director of Harvard Law School’s animal law and policy program.

The agriculture industry backlash was inevitable, asserting it would cost pork producers $293 million to $347 million to comply — a cost they said would invariably raise the price of pork not only for Californians, but for all Americans. In the years after it passed, meat trade groups filed three separate lawsuits against the pork provision. Each challenge argued the same point: California’s ban imposes an unfair burden on out-of-state pork producers, who produce most of the pork sold in California. (California produces a lot of dairy and eggs but less than 1 percent of the nation’s pork, while consuming around 13 percent of it.)

The pork producers argued that retrofitting their barns to be crate-free would be too costly, and that they couldn’t easily segment crate-free pork from crated pork they might be able to sell in other states. That purported inability forces them to raise more of their pigs crate-free than needed, a cost they say will have to be passed on to consumers nationwide. However, several major pork producers now say they can comply (more on this later).

All three lawsuits were dismissed by lower courts, but the Supreme Court took up the one filed by the National Pork Producers, the industry’s main trade group, and the American Farm Bureau Federation, an insurance company and agriculture lobbying group.

While it might be easy to assume that a conservative-dominated Court will rule in favor of business interests, it’s hard to predict how the case will ultimately turn out. Animal welfare questions don’t adhere to party lines as neatly as you’d think. Democrats are only a little more likely to say cruelty to farm animals is a moral concern, and plenty of red and purple states have passed laws to reduce the suffering of farm animals. A group of conservative thinkers filed an amicus brief in support of California’s animal welfare law while Biden’s Justice Department filed one in opposition.

“Anyone who says they know what’s going to happen is lying to you or themselves,” says Green.

The Court’s ruling won’t be delivered for months, but wherever it lands will have long-term effects on the welfare of the animals we factory-farm for food, potentially setting back the movement to improve their conditions by decades — or propelling it forward.

The pork industry’s contradictory argument against California, explained

The animal welfare activists have a straightforward case: Pigs and other animals raised for food are thinking, feeling animals — like dogs and cats — and shouldn’t be treated like mere widgets in a factory. Plenty of scientific research has concluded what is intuitive to laypeople: Confining animals in tiny cages for years on end is really bad for their well-being, as noted by the 378 veterinarians and animal welfare scientists who filed an amicus brief in support of California’s law.

That straightforward case has been successful at chipping away at the practice of cage confinement: 14 states have banned cages to some degree, especially for egg-laying hens, and hundreds of food companies have been switching to cage-free eggs. In 2008, under 5 percent of hens were raised cage-free; today, 35 percent are. The egg industry now welcomes a cage-free future, with the biggest producers investing heavily in cage-free barn construction, generally not opposing cage-free state legislation, and in some cases even supporting it.

But the pork industry hasn’t been so amenable to change, and has continually invoked a legal doctrine called the dormant commerce clause to challenge California’s law. As I wrote in an explainer last year about the industry’s lawsuits against Prop 12:

The industry’s core argument is that Prop 12 violates the “dormant commerce clause,” a legal doctrine meant to prevent protectionism, or states giving their own businesses preferential treatment over businesses in other states. Industry groups argue that because most US pork is produced outside California, the financial and logistical burden of complying with Prop 12 falls mostly on out-of-state producers, and that those burdens outweigh any of the law’s supposed benefits.

On the surface, they have a point. Overhauling the housing of a million pigs or more is a costly logistical nightmare. Many crate-free sows today are raised with 16 or 18 square feet of space; California’s law requires 24 square feet. Adapting to a patchwork of norms and regulations isn’t easy.

In a separate but similar lawsuit filed by the North American Meat Institute in 2019, a spokesperson for the largest US pork producer, Smithfield Foods, wrote (under penalty of perjury): “It is no exaggeration to state that the expense and complications of complying with Proposition 12 may cause Smithfield to conclude it is no longer viable to do business in California.”

Other major pork producers similarly wrote in the lawsuit that compliance with Proposition 12 would be just too costly and would significantly hamper their operations. Some went so far as to say, like Smithfield Foods, that it may force their partial or total exit from the California marketplace.

But now many in the industry say they can comply, including five of the largest pork producers: Tyson Foods, Smithfield Foods, Seaboard, Hormel, and Clemens Food Group. It’s a confusing course reversal that also weakens the National Pork Producers Council’s argument that Prop 12 is overly burdensome.

Jim Monroe, vice president of corporate affairs for Smithfield Foods, says he doesn’t see any inconsistency between the statements, writing in an email that “there is no doubt it will be more challenging to supply Californians with affordable pork with this law in place.” Monroe said the regulatory climate and escalating cost of doing business in California were factors in Smithfield Foods’ recent decision to shutter its Los Angeles County slaughterhouse. “The standards proposed are arbitrary, not based on science and require considerable time and expense without yielding any improvements to animal care,” he added.

(The National Pork Producers Council and Tyson Foods declined an interview request for this story; Hormel and Clemens Food Group did not respond to a request for comment.)

Even California says big pork producers are hard at work to comply. As noted by Civil Eats, an official with California’s state agriculture agency visited 10 hog farms and slaughter plants across the country over the last year and reported that some of the nation’s largest pork producers were constructing new barns and overhauling old ones to be California-compliant, and had already implemented tracing systems to separate conventional pork from the California-bound pork.

While the National Pork Producers Council has written a great deal about the difficulty of tracing California-compliant pork, the largest producers have long advertised their sophisticated traceability systems. As Richard Sexton, a UC Davis agricultural economist, recently told the Guardian, “Products are being differentiated in a whole variety of ways: organic, GMO-free, different properties related to animal welfare, antibiotic-free.”

The increased cost for Californians will be somewhat modest, around an 8 percent hike, according to Sexton and two colleagues, and almost no change in retail price outside California. In an amicus brief to the Court, Sexton and another UC Davis economist also stressed that the pork producers’ claim that the costs of Prop 12 compliance would be felt by all pork producers, not just those selling into California, is flat-out wrong: “Not only are [the pork producers’] arguments flawed as a reflection of basic economic incentives, but they are factually implausible.” Their research was funded, in part, by the National Pork Board, a USDA-administered program that promotes US pork, as well as the California Department of Food and Agriculture.

The price increase may be tough for Californians at a time of high inflation, especially for food, but it’s important to remember that the price of conventional meat is artificially low, due to animals who are forced to live in the most miserable conditions imaginable, and to workers who toil in dangerous conditions to raise and slaughter them. Rural citizens who live near hog farms also bear the brunt of the industry’s lightly regulated air and water pollution.

How the conservative Court might think about the case — and animal welfare

It wouldn’t be a shock if all or most of the conservative justices side with the meat industry, as several business groups (like the Chamber of Commerce) and 20 mostly red state attorneys general filed an amicus brief in support of the pork producers (15 attorneys general from mostly blue states filed an amicus brief in support of California). California is also the right wing’s favorite punching bag.

But there are some reasons to believe that the justices won’t rule along predictable political lines. Justice Clarence Thomas has said the dormant commerce clause — the legal doctrine continually invoked by the pork producers to argue its case — “has no basis in the text of the Constitution, [and] makes little sense.” Justice Neil Gorsuch has called it a source of “judicial activism.” At the same time, the liberal Justice Elena Kagan wrote the decision when the Court struck down a California farm animal welfare law in 2012, and in 2010, when the Court struck down a federal animal cruelty law, the conservative Justice Samuel Alito dissented.

And animal welfare hasn’t been as ensnared in the culture war as other issues on the Supreme Court’s docket, such as immigration and affirmative action. That becomes clear when reading the amicus brief in support of California’s animal welfare law written by Megan Wold, a former law clerk for Alito. The brief was filed on behalf of other conservative thinkers, including former George W. Bush speechwriter Matthew Scully, University of Notre Dame law professor O. Carter Snead, and writer Mary Eberstadt.

Wold wrote that voters’ support for Proposition 12

reflects concerns of ancient lineage in Western moral thought. Western philosophers and religious leaders have considered the treatment of animals to be an appropriate and important subject of inquiry for millennia. They have explained how human decency demands that animals be treated with basic respect for their needs, natures, and dignity as living creatures, and why humans are morally bound not to participate in or facilitate animal abuse.

Last week, the Washington Post conservative columnist Kathleen Parker also made a passionate plea for the Court to side with the animals, writing “... the justices that make up the high court’s conservative majority have a rare opportunity to align themselves not only with their liberal counterparts but with some of history’s greatest ethicists and philosophers.”

Fervent support for animal welfare is not uncommon among conservatives: Bob Dole championed important amendments to the Animal Welfare Act in 1985; Rick Santorum may be vehemently opposed to LGBTQ rights but is also vehemently opposed to cruelty to dogs and horses. Even if their primary motive is to slash government spending, dozens of Republican members of Congress have voted to curtail government-funded animal research experiments in recent years.

While Big Pork is behind the challenge to California’s animal welfare law, many farmers (who tend to be conservative) are in support of the law, saying that it could help level the playing field in an industry that is dominated by meat giants that cut costs by mistreating animals. One of the largest meat companies, Perdue Farms, also supports the animal welfare law (Perdue mostly raises chickens for meat but also owns Niman Ranch, a higher-welfare pork company).

If the Court does side with the National Pork Producers Council, it could have lasting, devastating consequences for the future of farm animal welfare in the US. It would not only condemn nearly a million pigs a year to extreme confinement, but it could also inspire others in the animal agriculture industry to challenge similar state laws, or dissuade state lawmakers and food companies from moving on the matter. Some observers say the effects could be felt far beyond animal welfare, too, endangering state laws that cover renewable energy or product safety.

In the past two decades, we’ve witnessed a rapid shift away from cages, supported by voters, consumers, corporations, and policymakers of a number of political stripes. If California’s animal welfare law is eventually overturned, it will certainly be a setback for the anti-factory farming movement, but not the death knell.