Voters in California oppose abortion bans. But they may have accidentally helped red states create a national one with a 2018 ballot measure. As the California Attorney General prepares to defend the measure at the Supreme Court – almost no one is paying attention to this potentially pivotal ruling.
How did this happen? It all started with animal rights activists.
Proposition 12
Back in 2018, activists convinced California voters to pass Proposition 12. This mandates that any pork sold in the state comes from pigs raised according to certain animal welfare standards. California has virtually no pork production, so its pork products are raised almost entirely outside the state. Pork farmers usually don’t control where their pigs are eaten, so it’s difficult for them to raise different groups of pigs according to different standards. So, every American pork producer must comply with Prop 12 as a matter of practicality. After outcry from the pork industry, a national group of pork producers challenged the law on two primary grounds.
Their first claim was that Prop 12 violates the Dormant Commerce Clause. This bars states from both discriminating against people and goods because they’re from out of state and from excessively burdening out of state commerce for minimal local benefit. They also claim that Prop 12 is an invalid exercise of California’s state power. The law overwhelmingly affects the welfare of pigs outside California. The pork producers allege that California’s real goal is changing the behavior of people California has no formal authority over. They argue it would damage state sovereignty to allow California to regulate how non-Californians behave by weaponizing its economic weight.
California does not contend that Prop 12 has health and safety benefits. It instead argues that enforcing its citizens’ moral judgements about animal welfare is a sufficient reason to uphold Prop 12. It even concedes that Prop 12 will force non-Californians, whom California could not control directly, to change their behavior.
If California can mandate that all pork sold in the state be raised a certain way, despite its mostly extraterritorial effect, it’s impossible to explain why other states couldn’t put assorted conditions on how goods sold in their borders are produced. In fact, California has admitted as much. In an earlier proceeding, it conceded that if the Court upholds Prop 12, it could also condition the sale of products on the workers being paid at least $15 an hour, no matter where they work.
The Potential Ramifications
It’s obvious why California winning would have implications far beyond the next pack of bacon. Why couldn’t Texas demand that all goods sold in Texas be produced by companies that certify, under penalty of perjury, that they hire don’t hire any woman who have had an abortion? Texas’s economy is massive. It’s likely such a law would force most large companies to comply, making women who have had abortions largely unemployable. Or could New York State condition sale of goods on certification that every employee is vaccinated against COVID-19? Could Georgia require certification that no employee votes by mail? California’s position would allow states, especially large ones, to export and impose their moral sensibilities elsewhere, regardless of their popularity.
Moreover, California’s proposed enforcement scheme should give even the most ardent opponents of states’ rights pause. The state proposes to enforce Prop 12 by sending agents to other states and having them inspect, search, audit, and certify pork producers. It’s not a minimization of animals to say Prop 12 is mere social policy or moral preference. California does not argue that the regulation has any health and safety benefit to the people who consume the food – only that it provides a warm and fuzzy feeling to California shoppers.
But if the potential implications for guns, abortion, vaccines, and other social policy isn’t convincing enough, consider the disastrous consequences for economic policy. Under California’s theory, nothing prevents North Carolina from passing its own version of Prop 12. Except this version could mandate that pork sold in the state be raised in a way that does not comply with Prop 12. This would force producers to choose: sell in North Carolina or sell in California.
This kind of tit-for-tat would make states economic islands. The Constitution partially owes its existence to internal trade barriers and tariffs. The Articles of Confederation saw states engage in constant internal trade wars, which made the country poor and unstable. European economies were backwards, impoverished, and (especially in France) primed for revolt partly due to these types of internal barriers. They are a pre-enlightenment relic that belongs in a museum and licensing their resurrection would be catastrophic.
California’s Arguments
California has its own arguments for why the Supreme Court should uphold Prop 12. It contends that regulating what kinds of pork its citizens can buy is a core state power subject to great judicial deference. It also contends that any compliance is voluntary. The fact that somebody, somewhere will change their behavior is the inevitable consequence of any regulation. Animal rights activists have argued that the pork industry is exaggerating the economic harm it faces.
But these arguments fall flat. Prop 12 doesn’t confer any benefit onto Californians. The Court has routinely rejected the idea that states have an interest in banning behavior when its only harm is that the majority disapproves of it. Compliance is technically voluntary, but this misses the point. The purpose of Prop 12 is to use California’s economic weight to coerce “voluntary” compliance, even though the state lacks formal legal authority over the behavior. Progressives decried such methods just this fall when Texas enacted SB8. That measure allowed private lawsuits for $10,000 against anyone who received or aided in an abortion. That measure didn’t ban abortion. Clinics could keep performing abortions so long as they were willing to pay $10,000 each time they did it. But as a practical, economic matter, SB8 banned most abortions. Prop 12 uses the same scheme. It doesn’t ban behavior; it just renders noncompliance financial suicide.
The Limits of State Power
The argument that the economic harm is small is a red herring. The monetary value of the harm doesn’t matter. What matters is how universally coercive the law is on pork producers. If states can force compliance outside their borders because the policy is “inexpensive” to follow, there’s no real reason why their coercion powers would stop there. Constitutional violations are not dependent on monetary damages. Conforming with all sorts of social policy is monetarily “free.” Americans fight over it because of deep-seated moral judgments, not dollars and cents.
True, there are reasons unique to the pork industry why Prop 12’s regulations would become so universal so fast: diffuse supply chains, challenges raising pigs on the same farm differently, and California’s enormous demand for pork. But there are numerous other industries that share these characteristics and other states that could replicate Prop 12’s scheme. Clever procedure and highly specific economic conditions are poor reasons to allow states to expand the reach of their laws beyond their borders.
Such a practice would be antithetical to America’s federalist system of government. When the national government has not spoken on an issue, states always retain the ability to create their own policy. Allowing interference from other states deprives citizens of their ability to change policy within their own states through democratic elections. California’s scheme not only usurps national power from the federal government but threatens to limit the exercise of representative democracy in other states.
The Pacific Legal Foundation summed up the stakes of this case well when it submitted a brief in support of the pork producers. It pointed out that “[i]n this era of moral crusades— across the political spectrum—individuals and businesses are in especial need of constitutional protection from states’ regulatory overreach on all manner of moral questions and social policy.” The Supreme Court should reject California’s arguments and invalidate Prop 12.