“We could see anti-abortion states and even pro-abortion states enacting policies that have spillover effects in other states,” said Drexel University law professor David Cohen. “Just like California said, ‘We don’t allow pork to be raised in a way that goes against our ethics,’ you can see states saying, ‘We can’t do business with this state or that state’” because of their abortion policies. he added.
James Bopp Jr., an attorney for National Right to Life, largely agreed. “I think, on the face of it, there is a greater opportunity for pro-life states to regulate, for example, the sale of abortion-inducing chemicals out of state,” as long as there is still some connection to the original state, he said. .
On a superficial level, the outcome of the case provides rhetorical opportunities for advocates on both sides of the abortion rights debate to argue that their efforts carry more moral weight than those at stake in the legal showdown over pork. and therefore should get a similar result. court blessing.
The California ballot measure, passed with 63% support in 2018, sought to improve conditions for calves, laying hens and breeding pigs. However, the Supreme Court case, known as National Council of Pork Producers v. Rosslargely focused on the prolonged confinement of pregnant sows in pens where they cannot turn around.
The case revolved around an obscure and murky constitutional doctrine called the dormant commerce clause. This has been interpreted as limiting the ability of states to make policies that interfere with economic activity outside their borders.
Most of the justices concluded that lobbying by pork producers failed to establish a clear case that the California law was significantly taxing interstate commerce.
“What this could mean in the context of abortion is that if Alabama makes it a crime for someone in California to send pills to Alabama residents, the inactive Commerce Clause might not get in the way of Alabama officials,” he said. the law professor at the University of California at Davis. Mary Ziegler wrote in a Boston Globe opinion piece on Friday.
State laws that appear to be intended to influence abortion-related activity in other states have been proposed and enacted in several states in the wake of the Supreme Court’s decision last June to strike down Roe vs. Wade and give states broad powers to enact their own abortion laws. Some states have not been content to regulate only what happens within their borders.
Idaho has passed laws that prohibit advising someone in the state on how to get an abortion in another state, if the procedure would be illegal under Idaho’s strict abortion ban.
California has passed a law that nullifies out-of-state subpoenas and lawsuits in abortion-related investigations and has established a fund to help people from out-of-state travel to the Golden State for abortions.
The only member of the Supreme Court who directly mentioned the possible impact of Thursday’s factory farm ruling on the fight against abortion was Justice Brett Kavanaugh, who said he would have allowed the pork producers’ lawsuit against California.
“Future state laws of this type may not be limited to the pork industry,” Kavanaugh warned, before citing an amicus brief filed by 26 conservative-leaning states. “What if a state law prohibits ‘the retail sale of goods by producers who do not pay for employee birth control or abortions’ (or alternatively, who do pay for employee birth control or abortions)? the employees)?'”
Kavanaugh, a former President Donald Trump appointee, said the country was slipping down a slippery slope that could end the notion of the United States as a unified market.
“California law, therefore, may herald a new era in which states close their markets to goods produced in a way that offends their moral or political preferences and, in doing so, effectively compel other states to regulate accordingly. according to those idiosyncratic state demands. That is not the Constitution that the framers in Philadelphia adopted in 1787,” Kavanaugh stated in his sole opinion.
Abortion-rights lawyers said they paid close attention to Kavanaugh’s statement Thursday because when he joined four other conservatives in ending federal abortion rights last year, he emphasized that individual states should retain the power to limit or allow abortion and would remain available because women have a constitutionally guaranteed right to travel.
Still, the ideologically scattered distribution of judges in the pig case may advise against reading too much into abortion. Two of the liberal members of the court, Justices Sonia Sotomayor and Justice Elena Kagan, joined the part of the ruling that dismissed the pork producers’ lawsuit. The other liberal, Judge Ketanji Brown Jackson, reportedly allowed the case to go forward.
It seems doubtful that Sotomayor and Kagan would have endorsed the power of individual states in the pork dispute if those justices thought they were dealing some kind of blow to abortion rights.
“I think this might have more effect or application to abortion if the court split along ideological lines and made it clear that the dormant Commerce Clause is dead and states can do a lot, but that’s not what happened.” Dean Rachel said. Rebouché of Temple Law School.
Some legal experts said the ruling likely improved the chances that courts will uphold certain state abortion-related laws, but only on the margins.
“A court that was inclined to uphold state laws that prohibited the importation of abortion pills already had the tools to do so,” said Cornell law professor Michael Dorf. “This confirms those tools, but I don’t think it strengthens them that much.”
Cohen also warned that judges and magistrates who rule one way on an issue in certain cases sometimes manage to take a different position when the case is about abortion. “It is always true that once you seek or inject abortion into the mix, what the judges said in previous cases is thrown out the window,” he said.
