The US Supreme court has sided with a California law mandating pork sold in the state come from pigs raised in humane conditions.
The court yesterday (May 11) upheld California’s Proposition 12 (Prop 12), which forbids the in-state sale of whole pork meat that comes from breeding pigs (or their immediate offspring) that are “confined in a cruel manner”—regardless of whether they’re produced in California or elsewhere.
Last October, the Supreme Court started hearing arguments from pork industry lobby groups challenging Prop 12, which defines the minimum amount of space that mother pigs, baby cows, and laying hens must be given, who argued it was “unconstitutional.” The likes of National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) claimed that Prop 12 violated the constitution’s “dormant commerce clause” by imposing an unreasonable burden on interstate trade. They worried about the ripple effect the California law risks creating, allowing other states to set standards that influence food production standards nationwide.
Justice Neil M. Gorsuch, writing the majority opinion, stated: “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.” He also noted that there’s no way to directly weigh the cost on producers versus the moral and health benefits for millions of California’s residents.
Gorsuch also appeared to castigate the pork lobby’s Supreme Court challenge. “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,” he said, suggesting pork producers take their fight to Congress instead.
Porking holes: A quick breakdown of the divided opinion
The court rejected the argument that Prop 12 is unconstitutional in a 5-4 decision.
Yet Gorsuch’s majority opinion wasn’t backed by the other four justices—Clarence Thomas, Sonya Sotomayor, Amy Coney Barrett, and Elena Kagan—on all counts. Part IV of the Gorsuch’s opinion, which dealt with whether the court could assess the burden of Prop 12, proved divisive. Sotomayor and Barrett issued separate opinions to clarify where they dissented from Gorsuch.
Sotomayor dissented with Gorsuch’s assessment that courts are incapable of balancing economic burdens against noneconomic benefits. She stated that petitioners simply failed to argue that Prop 12 added a substantial burden on interstate commerce. Kagan joined Sotomayor’s opinion.
Barrett, instead, disagreed on the point that the petitioners failed to demonstrated Prop 12 causes burden on producers, but she conceded that the benefits and damages are incommensurable. Otherwise, she’d have sided with the pork industry.
In further disagreement with Gorsuch’s assessment, chief justice John Roberts, backed by Samuel Alito, Brett Kavanaugh, and Kentanji Brown Jackson—argued that the case should have been sent back to the lower court to reassess the claim of the burden on pork producers.
Quotable: The tricky cost-benefit analysis of California’s Prop 12
“The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives.” —Justice Neil M. Gorsuch in part IV-B of the ruling, which Sotomayor disagreed with in a separate opinion backed by Kagan.
US pork production, by the digits
67,000: Farmers who raise pigs in the US. They raise 131 million hogs a year, and produce 28 billion pounds of pork produced annually
15%: Share of the nation’s pork consumption Californians account for. The vast majority (87%) of pork consumed in California comes from out-of-state farmers
63%: Share of voters who backed Prop 12 in 2018.
At least 24 square feet: The amount of space each pregnant sow must have for the treatment of pigs to be treated as humane, as per Prop 12. Without enough space, pigs are at risk of physical injury, urinary tract infections, immobility is associated with musculoskeletal atrophy, constipation, impaired cardiovascular fitness, and psychological ill-effects.
25%-35%: Sow capacity loss for a typical farm as it become Prop 12 compliant
9.2%: Estimated increase in farmers’ production costs by per pig, roughly $13
Split reactions: Pork industry lobbyists vs animal welfare activists
Pork industry players are disappointed with the decisions, largely because they foresee costs—and therefore consumer prices—rising if they have to comply with the Californian law.
Julia Anna Potts, President and CEO of the North American Meat Institute, said in a statement that Prop 12 is not only “a costly burden to producers” but also that it provides “no benefit to animals or consumers.” Animal welfare activists would not agree with the latter.
Kitty Block, president and CEO of the Humane Society of the United States, called Prop 12 “the nation’s strongest farm animal welfare law” in her statement heralding the decision. “It’s astonishing that pork industry leaders would waste so much time and money on fighting this commonsense step to prevent products of relentless, unbearable animal suffering from being sold in California.”
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