Thursday, October 20, 2022

By Jon Lovvorn

Last week, the U.S. Supreme Court heard arguments about Proposition 12, California’s landmark law to address animal cruelty and public health issues stemming from the worst factory farming practices, such as confining pregnant pigs in gestation crates so small they can hardly move. Jon Lovvorn, senior vice president and chief counsel for our Animal Protection Law department, sat at the counsel table in support of Proposition 12. Here he reflects on what this moment in history means for the animal protection movement.

As the Justices of the Supreme Court of the United States slid into their ceremonial chairs last Tuesday morning, I was lucky to have a front row seat at counsel table. The legal question before the Court was how far states can go under the Constitution to keep immoral and unsafe products out of their domestic markets. Remarkably, the national test case for deciding this question was about farm animal protection—an issue long neglected on the national stage, and even in some corners of the humane community itself. But not that day. The highest court in the land was going to debate and decide whether California and other states have gone too far in their efforts to rid their markets of farm animal abuse, and if so, what that would mean for laws addressing other major moral questions of our time.

I steeled myself for what was to come. Our work at the Humane Society of the United States has been before the high court twice in the last 20 years, and the outcomes were not positive. Unlike the lower courts, where we have won more than a hundred cases, the Supreme Court has never been a favorable venue for animals. Time and again, the Court has limited or struck down animal protection laws at the behest of animal abusers and big business interests. But I took comfort in the knowledge that we had done everything possible to prepare for this fight. Over the past year, our legal team—which now numbers over a dozen attorneys with more than a hundred years of combined experience—collaborated with experts throughout our family of organizations to recruit hundreds of outside organizations and scientists to submit briefs in support of our position. We invested hundreds of hours of research, writing, practice arguments and other preparations. We were ready.

A short history of a very long fight 

Although the case concerns California’s Proposition 12—the 2018 farm animal ballot measure that enacted the world’s strongest legal protections for farm animals—the hearing was just one chapter in a story that goes back 200 years (almost to the day) to the enactment of the very first animal cruelty law in the UK—Dick Martin’s Act of 1822. Ironically, that first animal law was focused on farm animals, and inspired the founding of the American humane movement. Unfortunately, in the intervening decades, animals raised for food were systematically exempted from our nation’s cruelty laws.

Almost 20 years ago, the HSUS and its allies came together to chart a better legislative path for animals. Rather than trying to prove that factory farming and other inhumane practices meet the definition of “cruelty” under ancient and often ineffective criminal animal cruelty codes, this second-generation of animal laws took aim at specific cruel practices—like the sale of foie gras, veal, eggs from hens confined in battery cages and other cruel food products; the sale of puppy mill dogs; trafficking in ivory and other wildlife parts; fur sales; the sale of products tested on animals; and many other unspeakable cruelties.

Proposition 12 represents the pinnacle of these efforts, and an important milestone in this second-generation of animal laws. It puts a stop to the most egregious cruelty in California’s factory farm system—the extreme confinement of hens, calves and mother pigs in cages so small they cannot even turn around and engage in normal animal behaviors. It also prohibits the sale of such cruelty in the California marketplace. Other state legislatures and agencies, restaurant chains, grocers and major companies across the nation have been inspired by Proposition 12 and have enacted or strengthened their own policies to end extreme confinement.

Although groundbreaking in their application to animal welfare, these laws fall squarely within a wide range of state laws that restrict in-state sales of products based on legislative judgments that such products represent a threat to public health, safety and community morals. Because these laws only regulate in-state sales of cruel products, and do not directly control any activity outside the state, Proposition 12 and laws like it have been repeatedly upheld against Constitutional challenges by federal district courts and the Circuit Courts of Appeals. The Supreme Court itself declined to consider an earlier challenge to Proposition 12 in 2021.

However, earlier this year, the Supreme Court agreed to hear the pork industry's latest challenge to California’s Proposition 12, and the HSUS has been preparing all day, every day since.

Pigs’ day in court

The 132 minutes of argument before the Court—almost twice what was scheduled—surprised many long-time court-watchers. The pork industry’s sweeping argument is that California (and other states) cannot prohibit the sale of inhumane or immoral products if they are produced out-of-state. In short, producers using cruel methods have an absolute right to sell their meat (or other products) into California and the state is powerless to keep such products from its marketplace.

While aimed at humane standards, the argument articulated by the pork industry and its allies threatens to wipe out numerous state laws that focus on harms to in-state constituents that originated from out-of-state actors, including those addressing animal protection, climate change, renewable energy, deforestation, food safety and child/forced labor. The on-the-ground impact of a loss in this case could be too large to even calculate. It's crucial that states’ ability to mitigate the harms to animals, people and the environment caused by industrial agriculture not be eroded.

The Tenth Amendment of the Constitution provides that powers not delegated to the federal government are reserved to the states, and the U.S. Supreme Court has long recognized the broad latitude of states to enact laws that protect public health, safety and welfare by regulating the sale of goods and services within state borders. By trying to deny states the power to protect the health, safety and welfare of their citizens, this case tramples upon the fundamental principles of federalism that have guided our nation since its founding—harming people, the environment and animals in the process.

Fortunately, the justices didn’t appear to have any appetite for the pork lobby’s most sweeping arguments. As the lawyer for the pork lobby rose to present his argument, he was almost immediately cut off by Justice Thomas—one of the most conservative Justices—asking why California’s decision to keep inhumane and unsafe animal products out of its markets is any different than setting building standards for houses, or myriad other state health and safety standards. As other justices joined the fray—both on the left and the right side of the political spectrum—the legal community got a prime opportunity to see what we at the HSUS have known for some time: Animal protection is a non-partisan, universal value that defies the traditional party-line polarities that are so prominent in every aspect of our public discourse. While the justices had probing questions for all sides, it seemed clear that a block of the Court’s most conservative and most liberal justices was forming in opposition to the pork lobby’s most radical legal theories. This would not be a party-line 6-3 outcome.

The hearing was also remarkable for what we didn’t hear from the pork lobby or its allies in the U.S. Department of Agriculture—which sadly convinced the Biden Justice Department to support the pork lobby’s lawsuit. Entirely absent from the proceedings were all the typical denigrations of animal protection—and particularly farm animal protection—that have historically been the bread and butter of our legislative and legal opponents. In more than two hours, the pork lobby did not once suggest that the humane treatment of pigs in food production was an irrelevant or improper concern. Instead, they argued that they—the pork lobby—knew better how to humanely treat pigs, and (astoundingly) that pigs are both happier and healthier locked inside a crate so small they cannot even turn around for their entire lives.  Without fanfare, the jokes, the puns, and the derision we’ve seen in the past simply evaporated. This was a serious social issue and a serious discussion about the Constitutional limits of the States’ authority to protect animals.

This subtle shift from arguments about whether to ensure humane treatment of farm animals to how to ensure such treatment is an important milestone for our movement, and a major concession by industry they can never walk back. Once we get to the how of the matter, it is only a matter of time before we win this campaign. Win or lose in court, farm animal protection will never again be misperceived as a secondary social and legal concern.

We are going to win this fight

As I walked down the steps of the Supreme Court building to answer press questions, I continued to reflect on the inevitable nature of the change we seek, and the tenacity of our organization and allies. I ran through my talking points for the press, but then discarded them for the single message that had been shouting in my head for more than two hours: We are going to win this fight. The pork industry is going to have to surrender its cruel gestation crates—consumers and retailers will simply no longer tolerate such practices. The only question in this case is whether that happens sooner or later. The inevitability of animal protection as a social movement, and the tenacity with which we fight—that was the real story of the day.

Justice Louis Brandeis famously said that “most of the things worth doing in the world had been declared impossible before they were done,” and I can think of no greater example in animal protection than this twenty-year campaign to establish basic humane protections for farm animals within our legal system. Whatever the Supreme Court rules this spring, this is just one moment on a timeline of tireless and tenacious work that stretches all the way back to that first animal cruelty law in 1822.

We will continue this fight until our legal system ensures that all animals have legally guaranteed and enforceable protections from extreme confinement and other cruel and abusive practices.