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February 27, 2023 Feature

The Supreme Court Considers Pig Suffering

By Irina Anta
The ruling could impact how far a state can go passing laws based on the moral views of its citizens.

The ruling could impact how far a state can go passing laws based on the moral views of its citizens.

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In October, the United States Supreme Court heard what was probably one of the most important cases of the term – National Pork Producers Council v. Ross. The case questions whether California can prohibit the sale of pork products from animals treated in ways it considers cruel. No joke or snide remark was made at the pigs’ expense. Instead, the Justices spent over two hours considering how far a state can go in enacting laws based on moral grounds. The Court’s decision is likely to have widespread implications, not just for animal cruelty laws but also for states’ abilities to regulate abortion access, environmental protection, LGBTQ rights, and more.

In 2018, California voters passed a ballot initiative called Proposition 12 by an overwhelming majority. Prop 12 set minimum space requirements for egg-laying hens, pregnant pigs, and calves raised for veal, mandating that these animals have enough space to spread their wings, lie down, and turn around. In addition to outlawing the production and sale of products from severely confined animals within California’s borders, the law also banned the sale of all out-of-state products that do not meet these regulations.

A flurry of lawsuits seeking to block Prop 12 soon followed. North American Meat Institute’s (NAMI) lawsuit failed in district court, and the Ninth Circuit affirmed the decision and rejected NAMI’s request for en banc review. The Supreme Court also declined to hear NAMI’s appeal. A coalition of California retailers, including the California Grocers Association and California Restaurant Association, filed a lawsuit asking for a 28-month delay in implementing Prop 12, which was supposed to go into effect on January 1, 2022. Attempting to balance the state’s “concern about cruel confinement” and the enforcement delay, the Superior Court for Sacramento County agreed to push it back six months.

National Pork Producers Council (NPPC) and American Farm Bureau Federation (AFBF) brought their own suit challenging the constitutionality of Prop 12, specifically taking issue with the law’s regulations concerning pigs. A typical pig farm in the United States confines pregnant pigs, known as “sows,” in a metal cage roughly seven feet by two feet (slightly larger than the pig herself). This cage is known as a “gestation crate.” Once the pig gives birth, she is kept in another similar cage, known as a “farrowing crate,” with one grated side that allows the piglets to nurse. After about three weeks, the piglets are weaned, the mother is moved back to the gestation crate and re-impregnated, and the cycle starts all over until the pig is sent to slaughter at about one and a half to two years of age.

Gestation and farrowing crates are widely used across the pork industry and have been a standard agricultural practice for a long time. The past two decades, however, have seen a significant push to ban the use of these cages, given the public’s concern with pigs’ physical and psychological welfare. Some states have banned the use of gestation crates, beginning with a 2002 amendment to Florida’s constitution. Prop 12 has gone further, requiring Californian producers to provide pregnant pigs with at least 24 square feet of space and banning out-of-state pork products that failed to meet these standards. In doing so, California’s law became the nation’s strongest farmed animal protection legislation.

NPPC’s suit, National Pork Producers Council v. Ross, did not have much luck initially. The district court dismissed it, and the Ninth Circuit affirmed the dismissal. Unlike NAMI’s appeal, the Supreme Court granted cert in March 2022.

NPPC believes that California has gone too far. Because California makes up 13 percent of the market but imports almost all of its pork products, NPPC argues that Prop 12 will force the $26 billion industry to change how it operates, thereby creating a significant economic burden on other states and violating the Dormant Commerce Clause of the Constitution.

It was evident during the hearing that the Justices understood that the implications of National Pork Producers Council v. Ross went beyond pig suffering and animal cruelty. Did Prop 12 undermine state sovereignty, as one amicus brief representing 20 states argued? Or would overturning Prop 12 undermine state authority to legislate, as another amicus brief representing 14 states and the District of Columbia insisted? The Justices seemed stumped. They raised questions and used hypotheticals about whether states could ban pork from companies that did not require all employees to be vaccinated, whether states could ban the sale of produce from companies that did not pay minimum wage or hired undocumented workers, or whether states could prohibit products from factories that did not comply with environmental laws. They voiced concerns about creating even more division among states. “We’re going to have to balance your veterinary experts against California’s veterinary experts, the economic interests of Iowa farmers against California’s moral concerns, and their views about complicity in animal cruelty. Is that a job for a court of law?” Justice Neil Gorsuch asked the NPPC counsel.

While the Court considers what is at stake, its decision (expected in the spring of next year) could have far-reaching consequences. The Court’s ruling could have implications not only on whether California can regulate animal treatment and prevent animal cruelty but also on how far a state can go in passing laws based on the moral views of its citizens – moral views on issues such as abortion rights, environmental protection, and LGBTQ rights. Meanwhile, major pork producers in the country have acknowledged that they are phasing out gestation crates without suffering significant financial impact because of the growing demand for more humanely farmed meat. It seems that the wave of public opinion is already sweeping the nation, no matter how the Supreme Court rules on Prop 12.

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By Irina Anta

Irina Anta is the co-chair of the Animals in Agriculture Subcommittee of TIPS Animal Law Committee. She is an independent consultant who advises nonprofit organizations on legal compliance, operations, finance, and strategy. She previously served as the General Counsel of Animal Outlook.