California “wins” right to enforce ban on sale of pork from pigs kept in gestation stalls, but Justice Kavanaugh tells agribusiness how they might reverse the decision
WASHINGTON D.C.––Rendering a decision split more ways than a pork belly by a supermarket butcher, with little consideration of pig suffering but a great deal of attention to precedents pertaining to states’ rights, the U.S. Supreme Court on May 11, 2023 issued a 5-4 split decision that might turn agribusiness pig housing practices around.
More likely, the verdict points the way toward further lawsuits challenging California Proposition 12.
Will Piggly Wiggly allow pigs wiggle room?
Passed by 63% of California voters in 2018, California Proposition 12 requires that pork sold within the state must come from pigs whose mothers were raised in at least 24 square feet of space, with the ability to stand up, lie down, and turn around.
Proposition 12 further provides that every sale of covered pork in California that does not meet those requirements is a crime potentially punishable by a fine of $1,000 fine or 180 days in prison.
“That rules out confinement in ‘gestation crates,’ metal enclosures that are common in the pork industry,” explained Associated Press writer Jessica Gresko.
Proposition 12 still not enforced
But five years after passage, Proposition 12 has not yet been enforced, due to a succession of agribusiness challenges that seems certain to continue.
Indeed, Justice Brett Kavanaugh, in a concurrence to the dissenting minority opinion issued with the May 11, 2023 Supreme Court verdict, provided a blueprint for further challenges to Proposition 12 on differing grounds.
The U.S. Supreme Court on June 28, 2021 rejected a previous agribusiness attempt to overturn Proposition 12, sending a challenge from the North American Meat Institute back to lower courts, after the North American Meat Institute had already lost in the U.S. Court of Appeals.
Farm Bureau Federation and Pork Producers Council admit that all pig housing flunks the Proposition 12 standard
In the current case, the American Farm Bureau Federation and the Iowa-based National Pork Producers Council objected that while Californians consume 13% of the pork eaten in the United States, nearly 100% of it comes from pigs raised in other states not under California jurisdiction, chiefly Iowa, Minnesota, Illinois, Indiana, and North Carolina.
The Farm Bureau Federation and Pork Producers Council admitted that 72% of the 65,000 U.S. pig farmers, who among them send 125 million pigs per year to slaughter, keep sows in stalls that do not allow them to turn around.
The Farm Bureau Federation and Pork Producers Council further admitted that even the 28% of farmers who house sows in larger group pens provide less space per sow than California Proposition 12 requires.
“Wholesale change in how pork is raised & marketed”
Added Gresko, “They also testified that the way the pork market works, with cuts of meat from various producers being combined before sale, it is likely all pork would have to meet California standards, regardless of where it is sold.”
The Farm Bureau Federation and Pork Producers Council contended that complying with Proposition 12 could cost the $26 billion a year pig industry from $290 million to $350 million.
U.S. Deputy Solicitor General Edwin Kneedler, representing the Joe Biden administration, argued in support of the Farm Bureau Federation and Pork Producers Council that California Proposition 12 “fails to respect the autonomy of California’s sister states, invites conflict and retaliation, and threatens the balkanzation of the national economic union” by imposing a “wholesale change in how pork is raised and marketed in this country.”
But that is precisely what California voters approved Proposition 12 to do.
Conservative view of states’ rights prevails
In the May 11, 2023 U.S. Supreme Court ruling, explained Gresko, “a majority of the high court agreed that lower courts had correctly dismissed pork producers’ challenge to the law. Both liberal and conservative justices were a part of the majority, though they were not united in their reasoning.”
Wrote Justice Neil Gorsuch for the Supreme Court majority, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”
Gorsuch, a conservative justice, opined that the Farm Bureau Federation and Pork Producers Council had in effect asked the Supreme Court to “fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders.”
Concurring were conservative justices Clarence Thomas and Amy Coney Barrett, with liberal justices Sonia Sotomayor and Elena Kagan joining the 5-4 majority.
Cost/benefit analysis not part of Supreme Court role
Gorsuch, Barrett, and Thomas further argued, separate from Sotomayor and Kagan, that doing a cost/benefit analysis of legislation is not properly the role of the U.S. Supreme Court.
“In a functioning democracy,” wrote Gorsuch, “policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant political and economic costs and benefits for themselves, and to try novel social and economic experiments if they wish.”
Sotomayor and Kagan disagreed, in a concurrence authored by Sotomayor, but judged that the Farm Bureau Federation and Pork Producers Council flunked the cost/benefit analysis.
Four judges dissent
Barrett came to an opposite opinion of the costs and benefits of California Proposition 12, in an explanation of her opinion as a member of the majority, but otherwise agreed with Gorsuch and Thomas that applying the cost/benefit test to the legislation is beyond the jurisdiction of the courts.
But chief justice John Roberts, fellow conservative justices Samuel Alito and Brett Kavanaugh, and Kentanji Brown Jackson, usually identified as a liberal justice, recommended returning the case back to continue in lower courts.
Roberts, Alito, Kavanaugh, and Jackson contended that the case warranted further lower court consideration as to whether the burdens that California Proposition 12 imposed on interstate commerce outweighed the benefits that Proposition 12 brought to California voters.
How to screw pigs & chickens
Added Kavanaugh, in his concurrence to the minority opinion, “State economic regulations like California’s Proposition 12 may raise questions not only under the Commerce Clause,” the specific section of the Ninth Amendment to the U.S. Constitution that formed the legal basis for the appeal to the Supreme Court by the Farm Bureau Federation and Pork Producers Council, “but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.
“I do not take a position here on whether such an argument ultimately would prevail,” Kavanaugh said. “I note only that the question warrants additional consideration in a future case.”
“Although the specific issue in this case is very narrow, the implications are quite broad,” CNN Supreme Court analyst and University of Texas School of Law professor Steve Vladeck told CNN reporters Ariane de Vogue and Tierney Sneed.
“Today’s decision,” Vladeck said, “leaves a lot of room for states, by regulating what businesses can and must do within their borders, to impact how those businesses act in other states. How far that goes remains to be seen in future cases, but it gives a lot of power, especially to larger states, to influence what happens elsewhere.”
“States’ rights” in political history
Discussion of “states’ rights” usually pertains to laws, or interpretations of laws, permitting racial discrimination, including the pre-U.S. Civil War laws that permitted slavery, regarding African-Americans as livestock.
Conservative politicians and judges, including Supreme Court justices, tend to favor constitutional interpretations allowing broad leeway for “states’ rights,” while liberal politicians and judges tend to favor federal authority over any “states’ rights” that interfere with individual civil liberties.
California Proposition 12 and Massachusetts Proposition 3, approved by voters in 2016 but subsequently dismantled by the Massachusetts state legislature, broadened the “states’ rights” debate by prohibiting the import of eggs, veal, and pork products into those states if the hens, calves, and sows used to produce them have not been raised according to the California and Massachusetts animal welfare standards.
“States’ rights” in political reality
This approach to enforcement requires an interpretation of the U.S. Constitution that allows states to enforce legislation superseding federal standards.
The division of opinion among the current U.S. Supreme Court justices on California Proposition 12 has in the background that a ruling against Proposition 12 might amount to a precedent narrowing “states’ rights,” even though the immediate subject of Proposition 12 had nothing to do with traditional “states’ rights” concerns.
California Prop 12 originated out of Prop 2 failure
California Proposition 12 originated, New Food Economy features editor Joe Fassler explained in 2021, “with California’s Prevention of Farm Animal Cruelty Act, a 2008 ballot measure also known as Proposition 2, which mandated that the state’s farm animals could not be confined ‘in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.’”
This requirement, if strictly enforced, would have required that egg-laying hens be raised only in cage-free environments, as well as prohibiting the use of veal crates and gestation stalls for sows.
But Proposition 2 was not strictly enforced, particularly as it pertained to egg-laying hens. This led to the November 2018 passage of Proposition 12, touted by the Humane Society of the U.S. and other sponsors as a fix for loopholes left in Proposition 2, but denounced by the Humane Farming Association and People for the Ethical Treatment of Animals, among others, for leaving some major loopholes in place.
Exulted Humane Society of the U.S. president Kitty Block and Sara Amundson, president of the subsidiary Humane Society Legislative Fund, “Today’s ruling by the highest court in the land marks the end of the line in terms of opponents’ judicial efforts in this case,” a rather disingenuous perspective in view of Justice Kavanaugh’s dissenting opinion, suggesting further avenues for meat industry efforts to overturn California Proposition 12.
Block and Amundson credited the American Public Health Association, Infectious Diseases Society of America, and Center for Food Safety with submitting influential briefs to the U.S. Supreme Court detailing the threats to public health resulting from animal husbandry in close confinement on factory farms.
“Many organizations, donors and volunteers have made this progress possible,” Block and Amundson continued, “but we want to specifically recognize our intervening partners in the Supreme Court case: Animal Equality, Animal Legal Defense Fund, Animal Outlook, Compassion in World Farming USA, Farm Sanctuary and The Humane League.”
Humane Farming Association looks farther
But Block and Amundson along the way shed alligator tears over hens “locked in battery cages so tightly they’re unable to extend their wings.”
That detonated Humane Farming Association national director Bradley S. Miller, who has pointed out ever since the California Proposition 12 ballot initiative language was finalized that it actually undid the most significant gain made by Proposition 2, which was touted as abolishing battery caging entirely.
“With this close 5-to-4 vote,” Miller told ANIMALS 24-7, “we all dodged a bullet. We were literally one vote away from absolute disaster. Proposition 12 had put on the chopping block dozens of state animal, environmental, and consumer protection laws.
“This was a rotten deal”
“We are relieved that there was no further damage done by this rotten egg initiative,” Miller said. “But the sad fact remains that, in exchange for minimally increasing space for gestating sows, for a very limited amount of time, and a very small number of veal calves, millions upon millions of egg-laying hens were sold down the river by having had their living space set at a mere one square foot per hen. That’s a drastic reduction in living space from what the Humane Society of the U.S. told voters they had achieved years earlier with Proposition 2.
“Playing one abused animal species against another, especially for a deal this terrible, is the epitome of organizational malpractice on the part of the disgraced Humane Society of the U.S., which sold out to the United Egg Producers. This was a rotten deal,” Miller finished, “no matter how one looks at it.”
PETA: go vegan!
People for the Ethical Treatment of Animals [PETA] was also unimpressed by the Supreme Court verdict.
“While this attempt from the meat industry has failed yet again,” PETA said in a prepared statement, “there is no end to the misleading marketing that companies are using to try to
convince people that what is done to animals for meat, eggs, and dairy is somehow humane.
“Public attitudes about the treatment of our fellow animals are changing, thanks to relentless campaigning by conscientious people, but there is still a lot more work to be done. We are at a pivotal point at which more people are willing to go vegan to stop the rampant abuse in the meat, egg, and dairy industries,” the preferred direction for both PETA and the Humane Farming Association.
California judge grabs an alligator to fight another round
Meanwhile lurking in the swamps of litigation to bite the legal defenders of California Proposition 12 in the ass came a March 8, 2023 verdict from Chief U.S. District Judge Kimberly Mueller in Sacramento, California, holding that the state of California cannot ban the import of products made from alligators, Nile crocodiles, and saltwater crocodiles.
Mueller ruled, Associated Press reporter Kevin McGill summarized, that “Federal law controls trade in those products and preempts California from barring trade in them,” since “All can be sold legally under international treaty and U.S. federal law.
“Mueller had already blocked enforcement of the law,” continued McGill, “while lawsuits challenging it played out in her court. Plaintiffs included businesses based in California, Louisiana, Texas, Florida, Montana, and Wyoming.”
No crocs in California
“California is not regulating crocodile takings within its borders,” Mueller wrote. “Nothing in the record suggests crocodiles reside in California, migrate into California, or have been introduced into California.”
The Mueller decision, unless overturned on appeal by a higher court, suggests that Congress could render moot the Supreme Court ruling on California Proposition 12 by simply passing a law extending federal jurisdiction over pig, calf, and poultry welfare standards to all pigs, calves, and poultry involved in interstate commerce.
HSUS & United Egg Producers tried that already
The Humane Society of the U.S. in 2011 withdrew ballot initiative campaigns seeking laying hen standards in Oregon and Washington, similar to those mandated by California Proposition 2, and backed away from enforcement of a comparable ballot initiative already passed in Ohio, in exchange for United Egg Producers collaboration in pursuit of a weaker federal standard which would govern the entire U.S. laying hen industry.
The federal standard proposed by the Humane Society of the U.S. and United Egg Producers never advanced in Congress, however, partly because of opposition from the Farm Bureau Federation and the Pork Producers Council.
United Egg Producers withdrew from collaboration with the Humane Society of the U.S. in 2014.