At the start of this year, a new law known as Prop 12 came into effect in the state of California banning the use of gestation crates for farmed pigs, as well as cages for laying hens and crates for veal calves. It also means that animal products from other states would have to comply with the ban. The meat industry has been complaining about it since the law was voted in back in 2018 with the support of around 7.5 million Californians, representing a 63 per cent majority. In a country with abysmal legal protections for farmed animals, Prop 12 is a huge victory. 

But in March, the meat industry filed a lawsuit to get the Supreme Court to overturn Prop 12 - and now President Joe Biden is siding against a democratic decision and with pork producers who want to bring back the cruelty of gestation crates.

The part of Prop 12 that pork producers are objecting to is the ban on the sale of meat from animals raised out of state using cages on the grounds that it is an attempt to impose state regulations on other states, which goes against the “Commerce Clause” in the constitution and is therefore unconstitutional. The National Pork Producers Council (NPCC) has submitted an amicus brief (a legal brief filed with the court supporting one side of an issue or another), with endorsement from the Department of Justice (DoJ), which operates under whichever administration is in power, the current one being Biden’s.

A long list of organisations, mostly meat industry ones but also pharmaceutical companies as well as several academics, have filed their own amicus briefs in support of the NPCC. Perhaps it shouldn’t be shocking that the American Association of Swine Veterinarians, which works with pork producers, is among them, but it is disturbing to read its claim that gestation crates are better for the welfare of sows and piglets. Quite clearly, if there is no safe way to farm pigs without gestation crates, then we shouldn’t farm pigs.

On the other side of the fence, on June 2nd more than a dozen senators including Diane Feinstein, Elizabeth Warren, and Cory Booker wrote to the Solicitor General, who is the fourth highest-ranking official in the DoJ and represents the federal government before the Supreme Court, urging her to support Prop 12. But on June 17th, the Solicitor General filed an amicus brief in support of the NPCC.

The Supreme Court has taken up the case after the lower court twice rejected pork producers’ attempts to have Prop 12 overturned. This indicates that several of the justices are interested in challenging the lower court’s ruling, explains Lewis Bollard, the Farm Animal Welfare Officer for Open Philanthropy, in his newsletter, as if there was no appetite for overturning the ruling they probably wouldn’t have taken it up.

But that doesn’t guarantee the outcome of the case. Conservative justices, writes Bollard, “are likely to value the interests of agribusiness and conservative states, 20 of which have filed a brief against Prop 12. But they’re also wary of reading Constitutional provisions too broadly. In fact, the two most conservative justices — Gorsuch and Thomas — may be our surest votes, since they doubt the constitutional basis of the dormant Commerce Clause itself, which they note ‘cannot be found in the text of any constitutional provision.’”

Pig producers are talking baloney

The NPCC and the American Farm Bureau Federation have argued that Prop 12 will prevent farmers from providing animals with “a safe environment” and that the costs of altering farms to give animals more space will harm small family farms and will ultimately be passed on to consumers. They have even claimed that Prop 12 undermines Biden’s climate goals, saying that as it will require most pig farmers to build new farms or reduce efficiency, it will lead to increased greenhouse gas emissions. “Limiting hog farming operations by restricting expansion can make it impossible to reach the scale needed to finance new technologies, such as anaerobic digestion to produce, capture and recycle biogas,” the NPCC has said. But anaerobic digesters come with their own problems, including further industrialisation of rural areas, undermining moves towards truly green sources of energy and, of course, trapping more animals in intensive farming systems.

Broader consequences

Overturning Prop 12 could open the floodgates to challenges to animal welfare protections in the US. The Canadian foie gras producers have filed an amicus brief supporting the NPCC, in which they state they “have a vital interest in this case because they are the challengers to a California law that is like the statute at issue here but that bans their wholesome, unadulterated, federally-inspected agricultural products based solely on how the animals from which they were produced had been raised on farms in other states and countries.” In other words, foie gras producers are hoping that the Supreme Court will overturn Prop 12 and set a precedent that they can use to challenge California’s ban on selling foie gras.

This will ring bells for those who have been following the efforts to get foie gras imports to the UK banned, with top Tory ball of slime Jacob Rees-Mogg arguing that we shouldn’t be placing restrictions on consumer choices based on how products are made.

The consequences of overturning Prop 12 will ripple out beyond animal welfare too. “[T]his case could set new legal ground,” explains Lewis Bollard, the Farm Animal Welfare Officer for Open Philanthropy, in his newsletter, “At stake are not just animal welfare laws, but the broader principle of whether states can ban the sale of any products based on how they’re produced. A bad ruling could thus stop states from keeping out goods produced by forced labour or with large carbon footprints.” This is also what the senators in support of Prop 12 argue in their letter to the Solicitor General.

The battle lines have been starkly drawn, with the will of the people and basic regard for animal welfare on one side, and the might of the meat industry on the other. The Supreme Court will hear verbal arguments in the case later in the year. Let’s hope they see sense.

Claire Hamlett is a freelance journalist, writer and regular contributor at Surge. Based in Oxford, UK, Claire tells stories that challenge systemic exploitation of and disregard for animals and the environment and that point to a better way of doing things.

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