WHEN PIGS CAN FLY (OR AT LEAST TURN AROUND) – WHAT DOES THE DORMANT COMMERCE CLAUSE HAVE TO DO WITH ABORTION?

Last term the Supreme Court decided National Pork Producers Council v. Ross, a case dealing with California’s regulation of the conditions under which pigs sold in California can be treated.  California said that all pigs had to be kept in pens prior to slaughter that gave the pigs at least enough space to be able to turn around.  The California rule applied to all pigs sold in California, regardless of where they were raised and slaughtered.  Because California has 12% of the nation’s population, regulations it implements have an outsized effect on the nation as a whole.  Just look at the impact that the state’s California Air Resources Board, or CARB, regulations have had on the automotive industry.    Many hog producers located elsewhere have little choice but to fall into line. 

Reaction from the left was predictable.  Animal rights activists cheered.  Not so fast, I say.  The decision could have a major impact on abortion, which almost no one is talking about or maybe even realizes.  And maybe the Supreme Court recognized that and intended it, making the decision a “sleeper” in the ongoing battle over reproductive rights.

How could a decision about pig pens impact abortion?  Here‘s a short lesson on the dormant Commerce Clause. 

The Constitution permits Congress to enact legislation involving interstate commerce.  Whether that allows for legislation involving actual acts of interstate commerce, such as transportation across state lines, or affecting interstate commerce generally in an integrated national economy, has bedeviled the Supreme Court since inception.  As recently as the Obamacare decision, roughly a decade ago, Justice Roberts threaded the needle of saying healthcare wasn’t interstate commerce, but the Obamacare tax invoked Congress’s taxing power, so he could uphold the legislation on that basis.  Congress then repealed the tax but Obamacare remains.  How could that be given Roberts’ distinction?  I thought his distinction was farcical.  How could healthcare, which including hospitals, doctors and other providers, and pharmaceuticals and medical testing and devices, all of which together constitutes 18% of our economy, not be commerce of national dimensions?

One element of Commerce Clause jurisprudence is the dormant Commerce Clause line of cases, which posits that when Congress hasn’t legislated there is an implicit policy choice that there should be an unfettered free national market with which the states cannot unduly interfere.  Inferring intent from silence is of course problematic, especially for the textualists and originalists on the Court, so they haven’t written much about the dormant Commerce Clause lately, even if they might prefer to see unregulated markets free from interference by the states.  Even putting current jurisprudential battles aside, the theoretical framework underlying the dormant Commerce Clause is problematic.

When the California pig case came before the Court, the argument was made that California couldn’t tell pig farmers in Iowa what to do, and the dormant Commerce Clause meant that there should be a free national market in pork products, regardless of the conditions under which pigs outside California were kept.  The Supreme Court did not bite at that argument, allowing the California law to stand.

So what does any of this have to do with abortion?  Plenty, it turns out.  A majority of abortions in this country utilize mifepristone and/or misoprostol, that is to say abortion pills.  In Red States that prohibit abortion, easy access to Blue State or even international providers of these pills has been held out by many as an escape valve, because anyone in Red States can order the pills online and get them through the U.S. Postal Service, or couriers like FedEx and UPS, seemingly with little detection risk.  But utilizing the logic of the California pig ruling, why can’t Red States prohibit the sale of the products in that fashion, making it unlawful for Blue State companies to sell the pills cross-border in this fashion?  If California can tell Iowa farmers how they can raise and slaughter pigs, why can’t Red States tell abortion pill providers in Blue States not to sell abortion pills into Red States?  There is an even stronger case to bar the couriers who are making drop offs locally.  The failure of the Supreme Court to reject California’s pig statute on dormant Commerce Clause grounds may be cited back to support Red State efforts to prohibit local traffic in abortion pills sourced from Blue States.

Indeed, given all the public attention paid to potential responses to abortion rules after Dobbs, I don’t put it past the conservative justices who voted as they did in BOTH Dobbs and Ross to have considered that very possibility when they reasoned the way that they did in Ross.

So I say to every leftwing animal rights activist who cheered Ross who is also a believer in reproductive choice, be careful what you wish for, as you may get it.

Richard P. Swanson
President-Elect, NYCLA

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, members, officers or Board.