In Supreme Court’s post-Roe dystopia, a California pig law could hurt abortion access

Californians’ noble attempt to impose minimally humane standards on pigs raised for their consumption was greeted with all the equanimity one might expect of the nation’s pork producers. In their determination to ensure that the state’s Proposition 12 meets the same fate as a fattened hog, they took the matter all the way to the Supreme Court.

The court agreed to hear it this term, though for obvious reasons it didn’t turn out to be the most closely watched case on the docket. The reactionary majority’s ham-handedly revealed decision to meddle in the lives and bodies of half the nation’s human residents makes its jurisprudence on livestock, and just about everything else, seem trivial for the time being.

Thanks to the court’s threat to overturn Roe v. Wade, the shape and scope of the dystopia awaiting American women could depend on the justices’ ruling in National Pork Producers Council v. Ross. It’s another measure of the court’s drift into kangaroo territory that an animal cruelty case could have serious consequences for people.

What the two questions have in common, as USA Today reported, is an arcane legal doctrine known as the “dormant Commerce Clause,” long-held to restrict the power of states to impose undue burdens on commerce beyond their borders. Congress derives one of its core powers, the ability to regulate interstate trade, from the Commerce Clause, which ensures that federal law supersedes state law in such matters. The dormant doctrine essentially holds that even when Congress hasn’t weighed in on a question of interstate commerce — when its power to do so is “dormant,” that is — states encroaching on this federal arena should be regarded with suspicion.

This idea has been around since John Marshall, the court’s influential fourth chief justice, and involves a key intent of the framers: to forge a national economy free of internecine trade warfare. But the federal courts still haven’t quite figured out what to do with it. Even the Supreme Court’s ultra-conservative majority appears to be divided over the dormant Commerce Clause — unlike, say, the apparently easier question of whether they should reverse a half-century-old precedent and revoke the fundamental rights of tens of millions of Americans.

Some of the far-right justices have suggested that Marshall wasn’t “originalist” enough. Sure, he may have helped ratify the Constitution and originated much of our current understanding thereof, but his dormant clause, they argue, simply isn’t in the document. And they’re not the only ones harboring doubts about the doctrine: In upholding California’s pork standards, the San Francisco-based Ninth Circuit U.S. Court of Appeals judged the dormant Commerce Clause to be approaching “dead letter” status.

That’s relevant to the California case because only about one of every thousand pigs eaten here was raised here. Most hail from the Midwest and South, where pork conglomerates maintain that Californians must not be permitted to reach beyond their borders to impose such expensive outrages as pens big enough for the animals to turn around. A weakened dormant Commerce Clause would allow California to influence national standards for pigs as well as ducks and geese, the force-feeding of which is discouraged by the state’s much-disputed foie gras ban.

But the dormant clause is also one of the constitutional principles that could prevent the states of a post-Roe America from not just outlawing abortions but also forbidding women in their jurisdictions from obtaining them elsewhere. Missouri and Texas lawmakers are considering such policies, which the California Assembly moved to counter this week. But in the backward and precarious society threatened by the Supreme Court, allowing the state to require humane treatment of animals could perversely further other states’ oppression of humans.