SCOTUS Case on Animal Welfare Could Implicate State Power to Ban Abortion Pills Under the Dormant Commerce Clause

Michael Dorf, SCOTUS Animal Welfare Case Could Implicate State Power to Ban Abortion Pills

In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.

The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.

The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition.***The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.***

[A]lthough the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.