U.S. Supreme Court majority questions California law requiring bigger pig pens

WASHINGTON – The Supreme Court on Tuesday appeared willing to allow litigation to continue over a California law aimed at ensuring pregnant sows can turn around in their pens, a case with implications for one state's ability to regulate the industries of another.

California voters enacted Proposition 12 in 2018 in an effort to prevent animal cruelty. The law, which has yet to take effect, bans the sale of bacon, chops and other pork products in the most populous state unless the sow from which it was born was housed in at least 24 square feet of floorspace — a standard that industry officials acknowledge few farms can meet.

While Californians account for 13% of the nation's pork consumption, the state is home to few pig farms. That means the cost of complying with Proposition 12 would fall mainly to out-of-state farmers, many of whom are based in the Midwest. California's law also mandates more space for egg-laying hens, and in a nod to bacon and eggs, U.S. Sen. Chuck Grassley, an Iowa Republican, has denounced it as a "war on breakfast."

Reflecting that, the lead plaintiff in the case is the National Pork Producers Association, based in Urbandale. Iowa is the nation's top producer of both pork and eggs.

Justice Samuel Alito asks: Is California a bully?

Several of the justices asked probing questions of both sides during more than two hours of argument that included more than two dozen references to Iowa. The underlying questions appeared to split traditional conservative and liberal alliances. But there seemed to be agreement among a majority of the court that the case could go back to a lower court for further review.

Associate Justice Samuel Alito suggested that only a large state such as California could have such an impact because of the size of its population, nearly 40 million residents.

"Is California unconcerned about all this because it is such a giant? You can wield this power. Wyoming couldn't do it," Alito said, pressing California Solicitor General Michael Mongan. "You can bully the other states and so you're not really that concerned about retaliation."

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California argues that the law is a restriction on sales within its borders that applies evenly whether the pork originates from within its borders or outside of them.

Associate Justice Neil Gorsuch questioned whether federal courts should be involved in trying to balance a state's interest in such a regulation against the effect on out-of-state industries.

"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," Gorsuch told Timothy Bishop, the attorney for the pork producers council and the American Farm Bureau Federation, also a plaintiff.  "Is that any job for a court of law?"

At the core of the controversy is the widespread use by pork producers of gestation crates for pregnant sows. Proponents of the law contend tight pens, which prevent the animals from turning around, are inhumane and encourage crowding that can lead to disease transmission. Farmers counter that the pens are intended to prevent the mothers from unintentionally crushing their piglets, and that the cost of replacing them with larger enclosures would drive up the cost of pork across the country, not just in California.

Scott Hayes, a Missouri pig producer, said at a National Pork Producers Council's news conference after the hearing that sows are aggressive and keeping them in individual pens “where they can be fed and watered and cared for individually is a very humane way of housing” them.

"It's what works best on our farm … and I think across the industry,” Hayes said. Other producers make “other systems work well. But it's really up to the producer. We’re the experts. That’s what we do every day. We get up and take care of our animals.”

The dispute has ramifications far deeper than the price of bacon: At a time when policies embraced by conservative states often look significantly different from those adopted by liberal ones, the question is when and how much such laws may reach beyond a state's boundaries.

That led to many hypothetical questions from the justices: What would happen, for instance, if Texas banned the sale of fruit unless a producing state could demonstrate that it was harvested by U.S. citizens? Could a liberal state ban the sale of a product from a conservative-led state, for instance, that had adopted anti-LGBTQ policies?

Bishop pushed back on the suggestion that the primary motive of the opponents to the California law was the cost to themselves. He also suggested that the farmers' economic concerns have a moral aspect, framing the case as a question about whether California's view of the morality of animal treatment should be allowed to outweigh Iowa's.

"If California can tell folks in Iowa how to raise their sows, then Iowa can take the moral position that the most important moral thing to do here is to feed  people at a reasonable cost by raising sows using pens," Bishop told Associate Justice Elena Kagan, adding, "You should decide this case on the basis that Iowa's views on how pork should be raised, whatever those are, are just as weighty as California's."

Associate Justice Ketanji Brown Jackson wondered if there wasn't some sort of middle ground.

"Why can't California solve for its morality issue in a different way?" she asked. "If we assume that it's really going to create a burden to allow California to ban all Iowa pork on the grounds that California disagrees with how Iowa produces pork, why shouldn't the balance to the extent we're making one be to simply allow California to express its morality interest through a less burdensome means, like segregating Iowa's pork when it comes in, putting a big label over it that says this is immorally produced or whatever, and that won't hurt Iowa as much?"

Law's principles could reach beyond questions about food

The case centers on a legal doctrine known as the dormant commerce clause, which generally bars states from passing laws that burden interstate commerce. If Congress has not passed a law affecting interstate commerce, the assumption under the doctrine is that Congress intends an open market without state-imposed regulations.

But the contours of the doctrine are murky and experts see the potential for additional litigation. Some believe, for instance, that the case could have implications for the thorny question of whether lawmakers in one state may prohibit people from traveling to another state to obtain an abortion. That question took on new meaning after the Supreme Court overturned its landmark Roe v. Wade decision in June.

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The U.S. Court of Appeals for the 9th Circuit dismissed the farmers' lawsuit last year, writing that while the dormant commerce clause "is not yet a dead letter, it is moving in that direction."

If the Supreme Court rules against pork producers, Lori Stevermer, who feeds pigs in Minnesota with her husband, Dale, said losing the California market could push farmers like her family out of business.

"The people we raise pigs for may say, 'We don’t need your farm anymore,'” Stevermer, the National Pork Producers Council's vice president, said at the group's news conference.

The decision could be “life-changing for us and everyone in this room,” she said.

This article originally appeared on Des Moines Register: U.S. Supreme Court hears challenge to CA pig law requiring more space