A Big Supreme Court Win for Farm Animals

This post originally appeared in the monthly farm animal welfare newsletter written by Lewis Bollard, program officer for farm animal welfare. Sign up here to receive an email each month with Lewis’ research and insights into farm animal advocacy. Note that the newsletter is not thoroughly vetted by other staff and does not necessarily represent consensus views of Open Philanthropy as a whole.

We won. Yesterday morning, the US Supreme Court ruled that California’s Proposition 12 — the nation’s strongest farm animal welfare law — is constitutional. The justices voted 5-4 to reject a pork producer challenge to the law, which bans the sale in California of pork, veal, and eggs from crated and caged animals and their offspring.

The pork producers’ challenge was just to the pork part of the law. But a negative ruling could have had far broader implications. It could have invalidated all of Prop 12, which directly benefits roughly 40 million hens and 700,000 sows producing eggs and pork for Californians. And it could have set a precedent that wiped out about 20 more state and local laws banning the sale of cruelly produced goods, from caged eggs to fur and foie gras.

So this is a big deal. The ruling is the first time the Supreme Court has ever upheld an animal welfare law. And it sends a powerful signal to corporate America that cages and crates have no long term future.

It’s also a surprise. Since 2007, the Supreme Court has overturned fully 80% of the cases it heard from the liberal Ninth Circuit Court of Appeals, which had previously upheld California’s law here. The pork producers had secured the backing of 26 US states, the nation’s biggest industry groups, and even the Biden Administration. At oral arguments, Justices barraged California’s lawyers with hypothetical arguments about the chaos that upholding Prop 12 could unleash.

The final ruling was close, with unusual allies. The Court’s three most conservative members (Justices Barrett, Gorsuch, and Thomas) joined with two of its most liberal (Justices Kagan and Sotomayor) to uphold Prop 12. The Court’s three other conservatives joined with Biden appointee Justice Jackson to dissent against the ruling.

So what happened? Why did the Court rule for the animals and what does the ruling mean for the future of farm animal welfare? (If you’re new to the case, you may want to first read the primer I wrote about it last year.)

States rights, not animal rights

The first thing to know about the ruling is that it mostly wasn’t about animals. To quote Justice Gorsuch’s majority opinion: “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

The Court wasn’t deciding the merits of cages and crates, or even California’s law. Instead it was deciding a narrow legal question: whether Prop 12 “impermissibly burdens interstate commerce” and is thus unconstitutional under the dormant Commerce Clause, a constitutional doctrine.

Pork producers had made two arguments. First, they argued that Prop 12 “extraterritorially” regulated outside of California and thus was “almost per se” unconstitutional. If California can regulate farm conditions in Iowa, they asked, what’s to stop Iowa from regulating workplace conditions in California?

All nine justices rejected that argument, finding that the dormant Commerce Clause mostly prevents states from passing protectionist laws, which discriminate against out-of-state producers. That doesn’t apply to Prop 12, which treats in-state and out-of-state pork producers equally.

Second, the pork producers argued that the burdens Prop 12 placed on “interstate commerce” (read: pork producers’ profits) far outweighed its benefits for Californians (read: ignore the benefits to the pigs). It said scrapping gestation crates would cost it $3,500 per sow, and raise the price of each pig sent to market by $13.

The Chief Justice and three colleagues agreed that the lower court should have weighed Prop 12’s burdens against its benefits. They would have overruled the appellate court and remanded to the lower court to do so, giving the pork producers a chance to overturn Prop 12. Justice Kavanaugh went further, noting that legal challenges “to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future…”

But the pigs were ultimately saved by the other justices. Justices Gorusch and three colleagues rejected the premise that interstate commerce was burdened by Prop 12. Instead “the facts pleaded in this complaint merely allege harm to some producers’ favored ‘methods of operation’.” In other words, Prop 12 doesn’t shut down interstate commerce in pork; it just stops that commerce for producers who keep using crates.

Justice Barrett disagreed. Yet she nonetheless provided the critical fifth vote upholding Prop 12 for a different reason. (Confused yet?) She argued that courts aren’t capable of weighing economic burdens against noneconomic benefits in the first place. As she put it, “California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents…”

So we got there. For the record, I was wrong. I thought we were going to lose 6-3, with Barrett and Kagan not supporting us.

A precedent well beyond pigs

The ruling’s immediate effect is to end the years-long litigation by pork producers seeking to invalidate Prop 12. The pork parts of the law, which had been delayed pending the ruling, should now go into effect. (The egg and veal parts of the law are already in force.)

That should stop stalling by pork producers, who have fiercely resisted efforts to scrap gestation crates. Even as major European and Brazilian pork producers have scrapped gestation crates, the US industry still permanently confines 72% of its roughly six million breeding sows in them. And it says it “almost universally” confines the other 28% for at least a third of their pregnancies and subsequent lactation — collectively about half their lives.

Smithfield Foods, the nation’s largest pork producer, cited the Supreme Court case in its recent sustainability report as cause for hope that it wouldn’t have to comply with Prop 12, which it called “​​ballot initiatives introduced by animal-rights activists as part of ongoing efforts to undermine livestock agriculture and meat consumption.” (It now says it’s “committed to serving our customers in California…”)

The ruling should also accelerate the egg industry’s move away from battery cages. Already 39% of the US’ roughly 310 million egg-laying hens are cage-free, thanks to the implementation of California and Massachusetts’ laws and corporate pledges from the likes of Costco and McDonald’s. Now five more state laws banning the sale of caged eggs — in Arizona, Colorado, Michigan, Oregon, and Washington — will come into force in the next two years.

More broadly, the ruling is a win for the principle that states can ban the import and sale of cruelly produced goods. That should boost the case for more state bans on other cruelly produced goods, like fur and low-welfare chicken. It may also embolden more nations to apply their own animal welfare laws to imports, as the European Union is currently considering doing.

Finally, and most importantly, this is a win for the thousands of advocates and donors who gave their time and money to pass Prop 12. The work of advocating for the billions of factory farmed animals can be exhausting and frustrating. The Supreme Court’s ruling is a reminder that it can also benefit the lives of countless animals.