Pork, Abortion Pills, and Constitutional Methodology

 by Michael C. Dorf

My latest Verdict column previews the pending Supreme Court case of National Pork Producers Council (NPPC) v. Ross. As the column explains, the national pork industry has challenged California's Prop 12, which sets standards for the humane treatment of pigs from which pork products sold in the state derive, even where, as is true of over 99% of the pork sold in California, the pigs are raised and slaughtered in other states. The plaintiffs/petitioners argue that Prop 12 violates the dormant Commerce Clause because it imposes an excessive burden on interstate commerce and/or because it amounts to impermissible extraterritorial legislation. I argue in the column that both challenges should fail.

The column then asks whether, if Prop 12 is valid, so are state laws that ban the importation into the state of abortion pills. After explaining why that result might follow, I offer possible grounds for distinguishing abortion pills, including that FDA approval of such pills may pre-empt state law. If so, then the dormant Commerce Clause is not implicated, because Congress and an agency to which it delegated power will have acted.

As a good legal realist, of course, I don't believe that anything the Court holds in the Prop 12 case will bind the Justices if and when they consider an abortion pill ban. Skilled lawyers can find a way to populate each of the four squares of the 2x2 matrix of possible combinations of results with respect to Prop 12 and abortion pills. A Justice could find both kinds of laws valid, both invalid, Prop 12 valid and abortion pill bans invalid, or vice-versa. Nonetheless, being a constitutional scholar means sometimes taking seriously the possibility that doctrines and principles matter--that sometimes a rule or standard adopted in one case leads one to a result one might oppose on ideological grounds in another case.

My own ideological druthers would have the Court uphold Prop 12 and invalidate abortion pill bans, but suppose one thinks that Prop 12 and a state abortion pill ban must stand or fall together. If the choice were mine, would I prefer that the Court uphold both or invalidate both? I want to use that question to briefly explore a further methodological question.

The methodological issue comes in the form of an objection to the enterprise. The way to figure out the right or best answer to a constitutional or other legal question is not to engage in a kind of grand utilitarian calculus in which one tallies up the costs and benefits of Rule A and compares them with the costs and benefits of Rule B and then chooses the rule that comes closer to producing the best results in all cases. Rather, the objection goes, one works from first principle to deduce the right answer and then applies it across the board.

To take an example from the affirmative Commerce Clause context, in Wickard v. Filburn, the Court upheld a federal statute regulating wheat (that the Court assumed, albeit erroneously  was) grown for home consumption. Sixty-three years later, in Gonzales v. Raich, the Court upheld a federal statute regulating marijuana grown for home (medical) consumption. On ideological grounds, liberals tend to like the result in Filburn and dislike the result in Raich, whereas conservatives have flipped preferences. Yet no one thinks that the right way to figure out whether the results are justified is to figure out whether the cost of permitting federal regulation of weed outweighs the benefit of permitting the federal government to regulate wheat (for liberals, or vice-versa for conservatives). So far as the Commerce Clause analysis, it shouldn't matter whether the agricultural commodity is one you want regulated at the federal level or not.

Let's distinguish between a naive and a sophisticated version of the objection I'm considering. The naive version rests on legal formalism. It says that a judge simply applies the text, original understanding, precedent, and other ostensibly objective legal materials to reach a result in each case. But as I said, I'm a legal realist, especially about SCOTUS, given selection bias in cases that reach the Court and the severe under-determinacy of the underlying materials. The Prop 12 case is illustrative. The dormant Commerce Clause itself is not even a constitutional text; it's an inference from the affirmative Commerce Clause. So to decide whether to adopt a broader or narrower view of the dormant Commerce Clause, one must consider values and policy.

The more sophisticated version of the objection concedes as much but rules some kinds of value and policy considerations out of bounds. On this view, it is appropriate to consider competing conceptions of state and federal power, of free trade versus regulation, and so forth, but it is inappropriate to consider the direct ideological stakes in the range of cases likely to be subject to the relevant constitutional rule or standard and then tally up costs and benefits. Is the sophisticated objection persuasive?

Although I believe that the perspective underwriting the sophisticated version of the objection is widely shared, I want to suggest that the objection misses the mark. To be clear, I share the view that a judge or Justice should not simply follow their ideological druthers on a retail basis in each case. That is, one shouldn't decide cases involving pork, abortion pills, wheat regulation, and weed regulation based on one's respective first-order ideological views about the wisdom of the legislation on each of these matters. But the sophisticated objection doesn't stop there. It says it's also inappropriate to formulate a rule or standard that aims at getting the optimal results across the range of cases, even if one is willing to follow that optimal rule to produce suboptimal results in the cases in which the rule leads to such results.

I want to push back. One is something like reflective equilibrium. In moral reasoning unguided by religious or other authority, one chooses the best rule or standard by going back and forth between rules or standards that seem right in the abstract and then checking them against the results they produce, with the ever-present possibility of revising the rules or standards to bring them into line with one's moral intuitions about particulars.

John Rawls is the leading expositor of the method of reflective equilibrium, but it is very familiar to lawyers as well. Ronald Dworkin's notions of fit and justification adapt it to law, but it was already ingredient in common-law reasoning. Think about how a Socratic law school class discussion proceeds. The professor poses a hypothetical case. A student formulates a rule that seems to produce the right result for that case. The professor then modifies the hypo or proposes a new one to show that the initial rule is inadequate or incomplete. The student tweaks the rule. The process continues iteratively to eventually settle on a rule that seems to produce the optimal set of results, all things considered.

Thus, I conclude that even though conventional wisdom as I understand it would, according to the sophisticated objection, reject a tallying up of costs and benefits of various rules and standards across cases, that's not only an acceptable but a standard methodology in a common-law legal system such as our own.

Finally, readers might wonder where I come out on the pork/abortion-pills tradeoff. My first move was to distinguish the cases so as to allow California to exclude pork from pigs raised to low welfare standards but to disallow states to exclude abortion pills. If that move fails, which result do I prefer--both kinds of laws valid or both invalid? The short answer is I'm not sure, but I think I would favor disallowing the abortion pill regulation, not so much because I care more about reproductive autonomy than I care about animal welfare but because the California welfare standards are themselves so grossly inadequate. Moreover, they arguably perpetuate the evil of animal exploitation by reassuring Californian pork eaters that the pigs whose body parts they ingest had anything resembling decent lives. But that's not really the point of today's essay.