This week, in National Pork Producers v. Ross, a fractured Supreme Court sided with the California voters who backed Proposition 12, a measure prohibiting the sale of pork in the state from companies that confine the animals “in a cruel manner.” In a complex set of opinions, the divided justices agreed that the law was constitutional, even though it also applies to pork produced in other states. The decision opens the door to similar measures in other progressive states and could ultimately raise national standards for pork production.
But this win for animal welfare may also pose a threat to reproductive rights. The logic of the ruling could make it easier for antiabortion states to apply criminal or civil penalties on abortion to people beyond state lines.
Idaho was the first state to experiment with limits on interstate travel for abortion, passing a bill in April that makes it a crime to help minors travel for abortion without parental consent. It also allows lawsuits against physicians who serve these minors, even if they are out of state. Idaho’s law is likely to have imitators. Even before the Supreme Court overruled Roe v. Wade, antiabortion lawyers like Jonathan Mitchell, the architect of Texas’s bounty bill, SB8, were sketching out legislative strategies to stop travel for abortion, or to allow states to apply their criminal laws to doctors, pilots, Uber drivers, and others who helped someone from a state where abortion was illegal obtain one. Sooner or later, more conservative states are going to push the envelope on this issue.
And now Thursday’s Supreme Court decision in the pork case will leave abortion-rights supporters with one less weapon against these legislative strategies.
The California case turned on the Commerce Clause, which gives Congress the power to “regulate Commerce . . . among the several states.” Over time, the court has also developed a doctrine called the dormant Commerce Clause, which limits the power of one state to interfere with the economy, businesses, and products of other states.
There has long been a debate about what the dormant Commerce Clause means, or even whether the court should turn its back on the doctrine altogether. If the dormant Commerce Clause stands for anything, it blocks protectionism — states playing favorites with their own businesses. But some Supreme Court decisions suggested that it meant more — that states almost never could apply their laws outside of state lines. Abortion-rights supporters understood that this could be a valuable argument — that states trying to regulate out-of-state abortions would offend the Constitution. This is known as the extraterritoriality principle.
That’s where the Supreme Court case on California’s Proposition 12 comes in. Out-of-state pork producers could not fall back on the most straightforward dormant Commerce Clause argument — that California tried to give in-state pork producers an unfair advantage. Instead, they pointed to the extraterritoriality principle. The Supreme Court was not having it. In an opinion by Justice Neil Gorsuch, the Court held that states could sometimes apply their laws extraterritorially.
What this might mean in the context of abortion is that if Alabama makes it a crime for someone in California to mail pills to Alabama residents, the dormant Commerce Clause might not get in Alabama officials’ way.
The Supreme Court acknowledged that its decision is not a free pass for states to apply laws extraterritorially for any reason, at any time. And abortion may be different: Abortion pills are regulated by the federal Food and Drug Administration, so federal rules on those drugs may trump conflicting state laws. Besides, other constitutional provisions may constrain states seeking to criminalize what happens elsewhere. The right to travel has an impressive constitutional pedigree, even for justices who demand that rights be rooted in a particular vision of the nation’s history and tradition. And if a conservative state like Missouri tries to make it a crime for someone in Illinois to perform an abortion for a Missouri resident, a court would most likely apply Illinois law, not Missouri rules. Doing otherwise might even be unconstitutional, denying the Illinois resident due process of law, and potentially violating the Full Faith and Credit Clause, which requires states to honor one another’s public acts and judicial proceedings.
But these arguments are complicated, and leading constitutional thinkers have admitted that they have no idea how courts will resolve them. One thing is clear after the Supreme Court’s decision in the California pork case: As interstate conflicts around abortion escalate, abortion-rights supporters may have one less legal weapon in their arsenal.
Mary Ziegler is the Martin Luther King professor of law at the University of California Davis. Her latest book is “Roe: The History of a National Obsession.”