Pigs, Dogs, and Nicholas Kristof

On Saturday, New York Times columnist Nicholas Kristof wrote an essay condemning the "Save Our Bacon Act," which passed the House and is currently pending before the Senate as part of the Farm Bill. Save Our Bacon would pre-empt state laws like California's Proposition 12, which establishes minimal welfare standards for the raising of pigs whose body parts are sold in the state. In National Pork Producers Council (NPPC) v. Ross (2023), the Supreme Court upheld Prop 12 against a dormant commerce clause challenge. However, a ruling either for or against a dormant commerce clause claim sets the boundaries of what states may do only absent congressional action (i.e., while the congressional power to regulate interstate commerce lies dormant). Thus, Congress has the power to supersede NPPC and allow nationwide what Prop 12 banned in California: the sale of pork products from pigs who were born to sows confined to gestation crates in which they lack the space even to turn around.

Along with Kristof, I hope the Senate rejects Save Our Bacon. As I noted when NPPC was decided, it reflects a small but significant step towards the recognition of animal welfare as a worthy concern of the law. Here's what I wrote then in a Verdict column:

Justice Gorsuch’s lead opinion in NPPC . . . treats with respect the pigs whose fate is the core concern of the challenged provision of Prop 12. Although the dominant leitmotif of the opinion is that state legislatures and Congress are better positioned than judges to weigh the benefits and burdens of measures like Prop 12, Justice Gorsuch repeatedly acknowledges that California is entitled to pursue its moral interest in addressing cruelty to animals.

As I also noted in that column, NPPC was not the first case in which the Court has shown respect for the interests of animals. I pointed to a concurrence by Justice Blackmun in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in 1993 and to Justice Alito's dissent in United States v. Stevens in 2010.

It's notable that whether particular justices express sympathy for the plight of animals does not appear to break down along conventional left/right ideological lines. Depending on the case, both conservative and liberal justices can be found expressing sympathy (and casting their votes based at least in part on that sympathy) for animals. That's true with respect to non-judicial actors as well, as I observed in an essay in January in response to the announcement that the Department of Health and Human Services under Trump and RFK Jr. is working to end federally funded animal testing.

Kristof's column takes note of the same phenomenon more broadly. He writes that "at a time when Americans can’t seem to agree on anything else, animal rights are a rare issue on which many conservatives and liberals periodically find common ground."

I do not disagree with the substance of that claim, but I do have an issue with the phrasing. Support for Prop 12 or opposition to Save Our Bacon reflects at least a minimal concern for animals, but it does not reflect a view in favor of what I would call "animal rights." If someone took the view that certain disfavored human beings who had committed no crimes could be imprisoned from infancy and then slaughtered as soon as they reached maturity but were entitled during that time to have access to the prison yard rather than being constantly confined to their cells, I doubt that the person taking this view would be described as supporting "human rights."

To be sure, we can think that some class of beings have a right to avoid some evil fates but not all such fates. For example, it is not an oxymoron to say that people on death row retain rights. One such right that the Supreme Court has at least nominally recognized is the right to avoid cruel methods of execution. I say "nominally" because the Court has in fact allowed executions to proceed via methods that posed the potential for inflicting excruciating suffering--potential that has far too frequently been realized.

Still, it is not logically incoherent to speak of the minimal "rights" of animals who are raised for food. Nonetheless, there is a great deal of incoherence in practice. Nicholas Kristof himself illustrates the proposition. As he frequently mentions when discussing animal welfare, Kristof grew up on a farm. He tends to romanticize how the animals on that farm were treated, feeding the narrative of happy hens, pigs, cows, and other animals whose lives are cut short by one bad day, even as the agony of that one bad day is mitigated by thoughtful killers. Kristof sees himself as standing up for traditional animal agriculture as against the big bad factory farms.

Factory farms are indeed big and bad, but the alternatives (such as the practices permitted by Prop 12) are not much better. They are more accurately described as slightly less awful.

Moreover, even were we to grant Kristof's assumption that there is a world of difference between the farm of his youth and the factory farms of today, his argument goes much further than he or his audience is prepared to accept. He concludes his essay on Saturday this way: "think of your dog enduring what pigs face, and you realize that the moral cost is incalculable."

That's just right. Pigs raised for pork in the United States are typically slaughtered at about six months of age, even though their natural lifespan is roughly the same as that of a dog. If you think of your dog--really your six-month-old puppy--being slaughtered and eaten, then you realize the full moral cost of not simply the miserable conditions in which pigs are raised for food but the fact that they are raised for food at all.

We have been here before. Consider a letter to the editor that appeared in the New York Times in 2013 in response to a 2013 column by Kristoff in which he acknowledged his own hypocrisy even as he touted the progress that he saw being made towards better treatment for animals by the food industry:

To the Editor:

I was pleased to read Nicholas D. Kristof’s acknowledgment that eating meat is inconsistent with a professed concern for the lives and well-being of animals. Less convincing is his suggestion that consuming eggs labeled “cage free” or pork labeled “crate free” represents progress.

I hope that Mr. Kristof comes to realize that “humane” animal products do not exist. He and others can then make the truly compassionate choice to become vegan, a step that authentically reflects the ethical intuition that animals matter.

SHERRY F. COLB

Falmouth, Mass., July 28, 2013

The writer, a law professor at Cornell, is the author of “Mind if I Order the Cheeseburger? And Other Questions People Ask Vegans.”

Plus ça change, plus c'est la même chose.

-- Michael C. Dorf