The Connection Between Nat’l Pork Producers Council v. Ross and Abortion
- January 23rd, 2023
- in Capstone Commentary
By: Delaney Epley
Nat’l Pork Producers Council v. Ross is a pending case argued in front of the Supreme Court in 2022. The case revolves around Proposition 12, passed by California in 2018, which prohibits the sale of pork from animals confined in a manner inconsistent with California’s standards. The case’s central question is whether this law is inconsistent with the U.S. Constitution’s dormant commerce clause. Here, the argument is that the law violates the dormant clause because it essentially forces hog farmers to comply with California’s regulations of their facilities, even though they are not in the state. As 87% of pork in the country is consumed outside of California, it primarily affects non-Californian transactions. On its face, this topic certainly does not bring abortion to mind. However, they have the potential to be linked in a way that one might not think.
In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled decades of precedent set in Roe v. Wade (1973) that conferred a constitutional right to abortion, kicking the issue back to the states to decide. This decision has allowed many states to pass abortion bans to varying degrees. Further, there is currently a rampant discussion on if states can regulate their citizens getting abortions in other states. In U.S. v. Lopez (1995), the Supreme Court ruled that interstate commerce involves 3 things: channels of commerce, instrumentalities of commerce, and activities that have a substantial effect on commerce. To obtain an out-of-state abortion, a woman must spend the money on transportation, hotel rooms, food, the procedure itself, etc. These expenses, I would argue, have a substantial effect on interstate commerce. Under the precedent set by Lopez, that would make traveling for an abortion a part of interstate commerce. The Court has changed the meaning of interstate commerce several times pre-Lopez to expand and contract the scope of interstate commerce, but as the law stands today, abortion is most likely to be deemed a part of interstate commerce.
States’ ability to regulate interstate commerce is limited by what Chief Justice John Marshall calls in his opinion for Gibbons v. Ogden (1824) the “dormant clause.” This doctrine says that there is an implied ban against state laws that conflict with Congress’ ability to regulate interstate commerce, prohibiting states from discriminating against or burdening interstate commerce. Today, the test used to determine if state laws violate this clause comes from Hunt v. Wash. State Apple Adver. Comm’n (1977): when there is discrimination or burden against interstate commerce, the state must prove that it is justified in terms of local benefits and that there is a lack of alternatives to effectuate the outcome. For example, in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019), the Supreme Court struck down a Tennessee law that imposed a two-year residence requirement for state liquor licenses because the law discriminated against interstate commerce without enough local benefit to justify it. Ross focuses on whether Proposition 12 violates this Hunt test—if California’s moral objections to the treatment of animals in other states is a sufficient local benefit to justify burdening interstate commerce.
California argued at the oral argument that the law only covers the pork that the state’s own residents buy, so it should not be considered a burden on interstate commerce. However, the law also sets a moral standard for the products that Californians can buy from out-of-state vendors. Applying the Hunt test, the key is if the Court determined moral objections are legitimate reasons to discriminate against interstate commerce. Traditionally, the meaning of local benefit has meant more tangible concerns, like protecting native species from being destroyed by disease. This interpretation would make Proposition 12 seem to be a reach. Moreover, we should consider the potential for other states to begin passing similar laws. If every state decides to pass a law regulating the conditions of out-of-state farms that sell products in their state, the combination of trying to follow 50 states’ laws, which could be contradictory to one another, is undoubtedly a burden on interstate commerce.
While the potential for this to apply to abortion was not brought up by the attorneys or justices, others have discussed Proposition 12’s significant possible implications. If California can regulate the moral standards of pork production outside of its borders, what else can states regulate? If abortion is considered commerce, which it likely would be under the standards set under Lopez in 1995, is that something that states can enforce their moral standards on for their citizens outside their borders? Legislation introduced in Missouri this year sought to allow private citizens to sue someone who helps a Missouri resident outside of the state. Another Missouri bill would make its abortion laws apply out-of-state, as it includes “sexual intercourse occurred within this state and the child may have been conceived by that act of intercourse.” The idea of regulating their citizens’ behavior in other states is something of interest to some lawmakers. The result of Nat’l Pork Producers Council may profoundly impact whether states can do that. Ruling in favor of the pork producers could strengthen the dormant commerce clause to the point that it limits states’ legal standing to regulate out-of-state abortions. However, a decision that rules in favor of California could weaken the dormant commerce clause to the point that state legislators see an opening to pass such laws with minimal legal intervention. The Court heard oral argument on October 11th, 2022, and they are likely still writing their opinion. But when the Court announces its decision, it will impact many fields outside pork production.
 Nat’l Pork Producers Council v. Ross, 6 F.4th 1021, 1029 (9th Cir. 2021).
 Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).
 Roe v. Wade, 410 U.S. 113 (1973).
 U.S. v. Lopez, 514 U.S. 549 (1995).
 See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
 See National League of Cities v. Usery, 426 U.S. 833 (1976).
 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1 (1824).
 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 97 S. Ct. 2434 (1977).
 Tennessee Wine and Spirits Retailers Assn. v. Thomas, 139 S. Ct. 2449, 204 L. Ed. 2d 801 (2019).
 See Maine v. Taylor, 477 U.S. 131, 106 S. Ct. 2440 (1986).
 Oral Argument – October 11, 2022, National Pork Producers Council v. Ross, OYEZ, https://www.oyez.org/cases/2022/21-468.
 Tierney Sneed, Can red states regulate abortions performed outside their borders? A post- Roe landscape would test just that, CNN: POLITICS, (May 3, 2022, 10:58 AM), https://www.cnn.com/2022/04/23/politics/abortion-out-of-state-legislation/index.html.