Bloomberg Law
Oct. 11, 2022, 6:13 PM

Supreme Court Voices Worries Over California Humane-Pork Law (1)

Greg Stohr
Greg Stohr
Bloomberg News

US Supreme Court justices worried aloud about the implications of a new California humane-pork law, asking whether it might open the way for other states to try to impose their moral values beyond their borders.

Hearing arguments for more than two hours in Washington, the justices suggested they might let a pork-industry challenge go forward without issuing a definitive ruling on the measure’s constitutionality.

The law, approved through a 2018 ballot initiative, bans the sale of pork in California unless pregnant pigs are allowed at least 24 square feet (2.2 square meters) of space. Industry groups say the practical effect is to force out-of-state producers to make costly changes. California imports more than 99% of the pork it consumes.

In questioning that cut across ideological lines, several justices asked whether allowing the California law would mean other states could impose their own demands -- such as requiring that workers be paid a certain wage or be allowed to opt out of a union -- before products could be sold.

“We live in a divided country,” Justice Elena Kagan said. “Do we want to live in a world where we’re constantly at each other’s throats and, you know, Texas is at war with California and California at war with Texas?”

The National Pork Producers Council and the American Farm Bureau Federation contend the measure violates the so-called dormant commerce clause, a judge-made doctrine that says the US Constitution limits the power of states to regulate commerce outside their borders without congressional authorization.

Disease Spread

“California wants to change farming methods everywhere,” their lawyer, Timothy Bishop, argued.

He drew pushback from Justice Sonia Sotomayor, who said there is a “reasonable basis” to believe that more humane pig-breeding methods might reduce the spread of disease.

The case is likely to cut across the court’s left-right divide, in part because conservative Justice Clarence Thomas has said he doesn’t believe the dormant commerce-clause doctrine has any constitutional basis. Another conservative, Justice Neil Gorsuch, was skeptical of Bishop’s arguments, saying the lawyer was urging the court to “engage in a freewheeling balancing test.”

The Biden administration is taking the pork producers’ side. The pharmaceutical industry is also backing the pork lobby, saying the case could affect litigation over state laws that seek to regulate the nationwide list prices of drugs.

California Solicitor General Michael Mongan characterized the law as a routine effort to set standards for goods sold within their borders.

Rising Food Prices

“California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe,” Mongan said.

He drew resistance from other members of the court’s conservative wing.

“I think people in some states, maybe the ones that produce a lot of pork, Iowa or North Carolina or Indiana, may think there’s a moral value in providing a low cost source of protein to people maybe particularly at times of rising food prices,” Chief Justice John Roberts said. “But under your analysis, it’s California’s view of morality that prevails over the views of people in other states because of the market power that they have.”

Animal-rights groups led by the Humane Society of the United States are backing California in the case.

The case is National Pork Producers Council v. Ross, 21-468.

(Updates with comments from Kagan, other justices, starting in fifth paragraph.)

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Greg Stohr in Washington at

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Elizabeth Wasserman at

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