The US Supreme Court rarely has occasion to hear an animal law case. Laws having to do with animal treatment are primarily matters of state law, and, historically speaking, precious few of them have threatened industrial animal exploitation to a degree that major federal lawsuits emerged. But California’s Proposition 12, a 2018 ballot measure that was approved by more than 62 percent of voters, sufficiently rankled the US pork industry that it filed a federal lawsuit and, after repeatedly losing, appealed all the way to the Supreme Court.
Prop 12 bans the sale of pork in California from farms anywhere in the country that confine pregnant pigs in “gestation crates” — cages barely bigger than their bodies — for almost their whole lives. This is standard practice in modern pork production, which meant that California’s requirement that female pigs kept for breeding simply have enough space to lie down, stand up, turn around, and stretch their limbs was regarded as an existential threat by the US pork lobby.
A divided Supreme Court upheld the California law yesterday, in a ruling that holds important implications for judicial power under the Commerce Clause of the US Constitution. The case also reflects a vast gulf in US animal law, between those who seek to make the law actually reflect animal well-being and the meat industry officials who usually get to determine what constitutes acceptable animal treatment on factory farms across the country.
In the animal welfare movement, the case has been closely watched and hugely consequential. Had Prop 12 been struck down, as many feared it would, given the Court’s conservative majority, it would have erased years of hard-won progress for animal protection and foreclosed the power of progressive states to regulate products produced under the cruelest factory farm conditions. Now, the US animal movement has the opportunity to further empower ordinary citizens to make decisions about animal treatment democratically, rather than letting corporations decide what counts as animal cruelty.
The pork industry argued for a constitutional right to unaccountability
Within hours of the Supreme Court’s decision, Chuck Grassley, the senior US senator from Iowa, by far America’s top pork-producing state, had taken to Twitter to proclaim that the decision was “an attack on your breakfast.” Although Prop 12 only requires about 24 square feet of space per pig, a minor improvement over current standards of about 14 square feet in gestation crates, pro-factory farming commentators declared that the decision amounts to a “major blow to the pork and ag sector.”
Disappointing news the Supreme Court upheld 9th circuit decision to allow California to regulate how pork reaches ur plate Prop 12 is an attack on your breakfast U can expect to pay more for bacon California’s liberal regulations impact pork producers nationwide— Chuck Grassley (@ChuckGrassley) May 11, 2023
Histrionics aside, it’s revealing to unpack what was actually going on in the decision. At the heart of the case was the National Pork Producers Council’s argument that they enjoyed a constitutional right to raise pigs in extreme confinement — in conditions that “cause profound, avoidable suffering and deprive pigs of a minimally acceptable level of welfare,” according to a brief filed to the Court by 378 veterinarians and animal welfare scientists — and then sell those products to consumers. The pork industry demanded that the Constitution should insulate them from the growing political power of people who care about the treatment of animals raised for food.
Animal protection advocates are accustomed to being told by the factory farm industry that no one knows how to care for animals better than those who raise them. Good animal welfare, their narrative goes, is an inherent part of any successful animal production facility; otherwise, the business would be unviable.
A pork industry website called “We Care” emphasizes that “pig farmers know that producing safe and healthy animals starts with them and you can trust farmers will do what’s best for their family and yours.” Yet pork producers have now spent years and likely hundreds of thousands (if not millions) of dollars arguing that they have a constitutional right to sell meat from facilities that confine pigs in ways that are intolerable to the average consumer.
The industry’s actual legal claim before the Supreme Court was not precisely that there is a constitutional right to confine animals in minuscule spaces, but rather a challenge to any limits on its ability to sell meat from such facilities in California under an arcane constitutional doctrine called the Dormant Commerce Clause (DCC). The DCC is a judge-made constitutional law, not actually in the text of the Constitution, understood to be a limit on the power of states to regulate interstate commerce. The Constitution gives Congress the power to regulate commerce between states, which judges have understood to imply a corresponding limit on state authority to do the same. Because California imports almost all of its pork from other states, the industry argued, it was unconstitutionally using Prop 12 to regulate out-of-state businesses.
The DCC has traditionally been interpreted to prohibit state laws that excessively limit commerce between states, particularly through measures that disadvantage out-of-state businesses relative to in-state businesses. A classic example is a tax on the sale of certain goods only if they come from out-of-state businesses, or a ban on the sale of products from out-of-state producers. For Justice Neil Gorsuch and a bare majority of the Supreme Court, California’s import restriction did not raise constitutional concerns because it applied equally to products from in-state and out-of-state pigs. Prop 12 holds California pork producers, however few of them there are, to the same gestation crate ban as out-state-producers.
As Gorsuch put it, writing for the Court majority, “while the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on the list.”
Can Prop 12’s bigger cages be a path to no cages?
Prop 12’s advocates have described it as the most significant piece of farm animal protection legislation ever passed in the US, because it prohibits some of the extreme forms of confinement used on millions of intelligent, socially complex animals raised for food every year. The Humane Society of the United States has gone so far as to call it the “strongest law in the world for farm animals.”
The Supreme Court’s validation of Prop 12 is undoubtedly a win for the animal movement, but for the pigs themselves, the improvement is marginal: They’ll still be confined in small spaces inconsistent with their needs as cognitively complex creatures, and they’ll still be repeatedly impregnated, only to have their piglets swiftly taken away and slaughtered. Whether this can be called a meaningful victory for animals depends on one’s perspective on how social change happens.
On one hand, that the industry vigorously fought Prop 12, deploying members of Congress to scare the public about the prospect of expensive bacon, may be enough to conclude that the Supreme Court ruling represents an important breakthrough against factory farming. It’s doubtful that a $28 billion-per-year industry doesn’t know what’s good for its bottom line. Prop 12 may also, as agricultural economists wrote in a brief to the Court, slightly reduce pork consumption in California by raising the costs of production, which may begin to erode the industry’s economic and political power.
Still, it’s hard to look past the fact that pigs raised on Prop 12-compliant farms will continue to have terrible lives, even as California consumers are given the impression that pork sold in their state is now high-welfare. Few consumers even know that many pork products aren’t covered by the law. Only whole, uncooked pork cuts, like bacon or tenderloin, have to be Prop 12-compliant, while all other products, like ground pork, precooked pork, or deli meat, representing about 42 percent of pork consumption in the state, don’t. Animal protection groups and the pork industry have both downplayed this fact in their messaging about Prop 12, because both have had an interest in depicting it as stronger than it really is.
These weaknesses have brought to the fore one of the longest-running debates at the core of animal law and animal rights. Will giving animals bigger cages chip away at the meat industry and diminish consumer interest in animal products over time? Or, as the legal philosopher Gary Francione has argued for decades, will reformism just make people more comfortable consuming the products of animal exploitation? Do laws like Prop 12, particularly when followed by high-profile legal battles, act as a release valve that alleviates some of the mounting social pressure and consumer guilt over factory farming? Or might this victory portend a range of even more far-reaching protections for animals across an ever-greater number of states?
These are empirical questions that we don’t yet know the answer to. Only time and research can tell whether incremental law reform projects will increase public concern about the consumption of pig meat or prematurely end the debate. But what’s beyond question is that the Prop 12 case represents a watershed moment for the growing political power and potential of animal protection activism. Part of the opinion, joined by three justices, recognized that “in a functioning democracy, those sorts of policy choices…belong to the people and their elected representatives.” This liberates animal advocacy of all stripes from constitutional constraint, representing a victory both for those who pursue total animal liberation (like Francione) and for those who would settle for better animal welfare laws.
The question, then, is whether the outcome will embolden animal protection groups to pursue bolder law reform projects. In the past few years, activists from the grassroots animal rights group Direct Action Everywhere (DxE) have exposed previously little-known horrors of animal agriculture, like the suffering of pigs who are gassed with carbon dioxide at slaughterhouses, or the millions of animals who have been culled via heatstroke using a method the industry calls “ventilation shutdown.” Would it be unthinkable for a state to ban the sale of products from meat producers who use ventilation shutdown? Could we imagine a world in which the idealized notion of the small, humane family farm is legally enforced to some extent by, for example, banning the almost immediate separation of calves from their mothers in the dairy industry, or the common practice of removing animal tails or testicles without anesthesia?
With Prop 12 now successfully defended, similar laws, like Massachusetts’s Question 3 (which has been on hold pending the Supreme Court litigation), can move forward, while more ambitious, yet-to-be-imagined laws can be proposed. The legal work it took to defend Prop 12 — fighting not just the industry but the Biden administration, which sided with the pork producers, as well as numerous pro-industry states — is not a complete victory for animals, and it’s not clear that bigger cages inevitably will lead to no cages. But had the case gone the other way, if even a small, incremental reform proved impossible, it would have unleashed a sense of despair across the field of animal law, making it hard to imagine, much less strive for, a future in which animal exploitation is less pervasive.
It is no small thing to consider that what was at stake in this case is as fundamental as whether local laws can, as the Court majority put it, interfere with the meat industry’s “preferred way of doing business.” Because the answer to that question is now a resounding yes, perhaps this decision will provide an overdue inspiration for animal advocates to push the envelope of what is possible in legislative limits on factory farming.
As US Rep. Tracey Mann (R-KS), chair of the House agriculture subcommittee on livestock, dairy, and poultry, said following the ruling, “This decision opens the door to [the] unthinkable. … Today it’s the pig pen, tomorrow it’s the whole barnyard.” For the animals’ sake, we can only hope this will be just such a call to action for advocates across the country.
Justin Marceau is the Brooks Institute professor of law at the University of Denver, Sturm College of Law, and the faculty director of the university’s Animal Law Program. He is the author of the book Beyond Cages, published by the Cambridge University Press in 2019, and the co-editor with Lori Gruen of Carceral Logics (2022). He is also the co-author of a forthcoming book on undercover investigations titled Truth and Transparency (with Alan Chen).
Doug Kysar is Joseph M. Field ’55 professor of law at Yale Law School and faculty co-director of the law, ethics, and animals program. His teaching and research areas include torts, animal law, environmental law, climate change, products liability, and risk regulation.