SCOTUS Makes Room for Pregnant Pigs






It was a watershed decision by the U.S. Supreme Court. It upheld California’s Proposition 12—which the Humane Society of the U.S. calls “the strongest law in the world for farm animals,” as well as the most significant piece of farm animal protection legislation ever passed in this country. Yet no one I asked had even heard about the decision; I happened upon it while searching for something else.

On May 11, the U.S. Supreme Court upheld a California law—supported by 62 percent of California voters back in 2018—that bans the sale, in California, of pork from mother pigs so tightly caged or penned in that they cannot stretch, lie down, or turn around.

The new law gives them an extra ten square feet.

Not much, but if you are pregnant, any breathing room helps. Pregnant sows have been confined to gestational cages, unable to move freely, for decades. The pork industry has insisted all along that it raises healthy, happy animals. No mention was ever made of the pigs so frantic they gnaw on their cage’s metal bars until their mouths bleed.

“Confinement” is a term once used for human pregnancy, too—but it was a far more civilized practice, urging women were to stay home post-partum and recover from the exhaustion of childbirth. The pregnant pigs’ confinement lasts the full twelve weeks of gestation. (At least, here it does. The European Union banned gestational crates a decade ago.)

If you are applauding the warm concern of the Supreme Court justices for farm animals (Prop. 12 also applies to eggs from hens tightly confined in battery cages and veal from calves that cannot stand, stretch, or move), hold still. The appeal was cast purely in economic terms, a challenge by the National Pork Producers Council, and the decision was made in the context of states’ rights, not animal rights.

California voters backed Prop. 12 with a clear majority, and states have the right to decide what products appear on store shelves, said the majority opinion. Producers in other states (like the Midwestern ones that supply California’s pork) must then comply with the laws in their customers’ states. “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” concluded Justice Neil Gorsuch.

The pork industry cried “state overreach,” maintaining that California’s restrictions violate the dormant Commerce Clause (a legal doctrine inferred by the courts from the Constitution’s Commerce Clause) by keeping farmers outside the state from selling in one of the nation’s largest markets. Restructuring operations to give the mother pigs more room will cost billions of dollars, they protested. Those costs will be passed on to consumers, warns Missouri pork producer Scott Hays, president of the National Pork Producers Council. He refuses to make changes to become Prop. 12 compliant, telling reporters that animals need individual care, and sows can get mean.

Adding ten square feet to a cage should not expose them to gang violence. The issue is space, and therefore, economic. The Biden administration has taken the pork producers’ side, because they are loath to allow a single state to disrupt an American industry. Nonetheless, the justices have made up their mind.

On Twitter, Iowa Sen. Chuck Grassley personalized the Supreme Court decision as “an attack on your breakfast.” But what if it were a dogs breakfast? Study after study has shown pigs to be more intelligent than dogs. (Also more intelligent than some three-year-old humans.) But pigs taste sweet. A recent study found that learning an animal is highly intelligent will raise their moral standing and make people less likely to want to eat them—unless the animal is one they already enjoy eating. Eating dogs in China is therefore sanctioned as morally reprehensible, while eating pigs in the U.S. is condoned regardless of the pig’s IQ.

We shall have our pigs, whether they are stripped, linked, sliced, or wrapped in a blanket (we seem to make them more comfortable once dead). They may cost more, but they will taste better. Animal behaviorist Temple Grandin notes that “Psychological stressors, such as excitement and fighting, will often have a more detrimental effect on meat quality than physical stressors, such as fasting or cold weather.” Without even realizing it (because pigs are so sweet), we have been sucking the bitter cortisol and adrenaline of their stress at Sunday brunch.

The Supreme Court case was not, however, decided on gustatory considerations. Nor did humane conditions factor in. No, the most important animal-rights law in the world came about sideways, to underline a state’s right to control its own economy.

What is saddest is how often Prop. 12 advocates felt unable to invoke humane considerations. In this culture, arguments for animal welfare invariably look weak, naïve, sentimental, impractical, ridiculous. So to argue for adding ten square feet to a confinement cage (who knew a watershed could be so slight?), advocates had to point out that if the pigs were healthier and happier, their flesh would taste better to us.

The sows’ pregnancies are, after all, for us. Their piglets are for us. Their lives are for us—to feed us and make us money. And when cruel conditions allow more profit, they become the norm.

On May 11, 2023, that changed. No matter how or why or with what arguments, it changed. And if producers want the 13 percent of all sales that California contributes, they will wind up improving conditions for all their pigs, hens, and calves, and those of us who have always had room to lie down will sleep easier.


Read more by Jeannette Cooperman here.