Earth Protect Blog

Why cross-border animal treatment standards are constitutional

By Krista Kafer

Columnist for The Denver Post

Search online images for “sow in gestation crate” to see the abject misery of an animal confined to a pen, typically 7 feet by 2 feet in size.

These pens confine gestating sows for the duration of pregnancy. The sow cannot walk or turn around. She cannot lie down on her side without her legs poking through the bars.

Under normal conditions, pigs are clean animals; they defecate away from where they eat and bed down. Immobilized in a gestation crate, a sow has no choice but to sit or lie on a grated floor bare but for the smear of excrement. Urinary tract infections are common.

When it is time to give birth, sows are moved to a similarly cramped farrowing crate. After three weeks, the nursing piglets are taken away. The sow will breed again and return to the gestation crate to bear a second litter in a year. The cycle will continue until she is sent to slaughter.

It is no wonder Colorado and nine other states have banned the use of gestation crates. More corporations are terminating contracts with producers that practice inhumane confinement. Americans are acting to stop the cruel treatment of livestock through their shopping choices and by supporting legislative action to ban such practices and the sale of inhumanely produced meat in their states.

This right to act is at stake in a case that will be argued before the Supreme Court next month.

National Pork Producers Council v. Ross centers on California’s Proposition 12, which sets minimum space standards for sows, veal calves, and laying hens on California farms. The law also prohibits the sale of pork, veal, and eggs derived from farms in and out of the state that do not meet minimum standards. Out-ofstate producers, through their advocacy organizations, sued on the grounds that the law violated the “Dormant Commerce Clause.”

The Commerce Clause in the U.S. Constitution states that Congress shall have power “to regulate Commerce…among the several States.” Since Congress has the prerogative to regulate such commerce, it is implied (or dormant within the clause) that states cannot enact legislation that discriminates against other states and burdens interstate commerce.

For example, states cannot enact laws that regulate or tax goods made in other states differently than goods made in-state which frequently happened before the adoption of the Constitution when the country was under the Articles of Confederation.

The pork industry alleges that California’s minimum living space standards will significantly burden out-of-state pork producers. The Southern District of California, however, dismissed the suit. The Ninth Circuit Court of Appeals affirmed the dismissal stating that while Proposition 12 will “require pervasive changes to the pork production industry nationwide,” the law did not violate the Dormant Commerce Clause. The producers appealed to the Supreme Court.

Fortunately, legal precedents such as Maine v. Taylor affirm state prerogatives to protect the health, safety, and welfare of citizens: “the States retain authority under their general police powers to regulate matters of legitimate local concern, even though interstate commerce may be affected.” Multiple states ban sales of inhumanely produced products such as ivory, cosmetics tested on animals, dog meat, eggs from cage facilities, and human tissue from aborted babies.

If the Court disregards these precedents and strikes down Proposition 12, resultant limitations on state authority “could upset the balance between state and federal power and, in effect, cede to the federal government the sole authority to enact laws in a host of areas traditionally governed by state regulation,” notes an Amicus Brief signed by Colorado Attorney General Phil Weiser and other state attorneys general.

More than a dozen Colorado veterinarians also weighed in with peer-reviewed findings about the painful physical and psychological impacts of severe confinement. In his own amicus brief, Dr. Leon Barringer, a Colorado large-animal veterinarian, dispelled producers’ claims that they cannot feasibly meet Proposition 12’s standards for California sales. “There is no plausible reason,” he wrote, “that existing tracing and segregation technology and practices cannot be used to segregate Prop 12-compliant pork from other pork in the pipeline, without any substantial burden to interstate commerce.”

The Supreme Court should uphold Proposition 12 because Californians and American citizens in every other state have the right to set minimum standards for the humane treatment of livestock within the state and to protect consumers from products produced through unethical, indeed immoral means, within and outside of the state. Krista L. Kafer is a weekly Denver Post columnist.

Follow her on Twitter: @kristakafer.