A pig's fate in California may shape the destiny of abortion access nationwide as a federal judge determines how a Supreme Court ruling on pork affects West Virginia's anti-abortion legislation.
The consequences from the six-justice majority opinion held in National Pork Producers Council v. Ross, which maintained California's law banning sales of pork meat that comes from pigs that are "confined in a cruel manner," are already playing out in a legal dispute over West Virginia's ban on a common abortion-inducing drug.
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Nevada-based GenBioPro, makers of the generic drug, sued West Virginia, saying the state's Unborn Child Protection Act infringes upon the U.S. Constitution’s commerce clause by disrupting interstate sales of a product that’s been approved by the U.S. Food and Drug Administration, which uses a complex regulatory scheme involving its distribution.
U.S. District Judge Robert Chambers, who has presided over the case since Jan. 25, requested parties on May 11 to answer whether the commerce clause ruling in Ross supports the drugmaker's claim or allows the state regulation.
Officials defending West Virginia's near-total ban on the abortion drug, mifepristone, said the commerce clause challenge should result in the same conclusion following the Supreme Court decision. They argue the extraterritorial effects, or any effects, of the law extending beyond its borders do not automatically violate the commerce clause, according to a May 19 brief.
James Bopp Jr., counsel for National Right to Life, largely agrees with the state officials, telling the Washington Examiner that the Supreme Court ruling "provides additional legal support" for West Virginia's law.
"California had a law that if an out-of-state pork producer produced products that were sold in California ... they are subject to California's law on how to raise those pigs in another state. So I think that has [an] application" to West Virginia's law, Bopp said.
However, lawyers for GenBioPro say the matter is distinguishable because there wasn't a compelling interest for national uniformity with respect to regulating pork that there is with mifepristone.
The drugmaker furthered that mifepristone is within a "small subset" of products subject to the FDA's Risk Evaluation and Mitigation Strategy that governs its distribution. The system “dictates in detail how such drugs move through interstate commerce, from packaging through distribution,” according to GenBioPro's May 19 filing.
GenBioPro also says the harms that come with West Virginia's ban outweigh the state's interest. The state disputes that assertion by saying even if a balancing test is applied, GenBioPro does not pass that test.
“Nothing in GenBioPro’s complaint alleges discrimination against interstate commerce,” the state officials said in filings, adding that West Virginia sought to ban nearly all pill-induced abortions regardless of where the pills are made.
The potential ties to abortion disputes were also raised by conservative Justice Brett Kavanaugh, a dissenting voice over the decision, suggesting the majority's test could expand the state's authority to pass laws that impact abortion as well as a wide range of practices.
Other legal experts have gone back and forth over the notion that Ross will play a larger role in the ongoing litigation tied to abortion drugs.
The Martin Luther King Professor of Law at UC Davis, Mary Ziegler, wrote an op-ed for the Boston Globe suggesting the "logic of the ruling" could make it harder for abortion-rights advocates to challenge state laws forbidding residents from obtaining abortions in other states.
Regarding a surgical procedure, Ziegler said that California's open abortion laws would likely apply. However, a California doctor endorsing the mailing of abortion pills to another state may face legal consequences since that state could argue for enforcement of its laws that have impacts elsewhere.
But Michael Dorf, a Cornell law professor, suggested in a Justia op-ed that the ruling might not reach as far as other legal experts have speculated, saying the court only "reaffirmed the longstanding principle that states may generally regulate conduct within their territory” despite "the interconnectedness of the national market."
The U.S. Court of Appeals for the 5th Circuit is currently weighing a case that is challenging the FDA's approval of mifepristone, as challengers seek to revoke its approval on the basis that it was improperly vetted.
And Dorf contends that even if the FDA's approval is upheld, there exists a "powerful argument that state bans on the receipt of such pills are preempted by federal law."
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Regardless of how Chambers responds to how Ross applies to the suit over West Virginia's law, his answer will mark "one of the first interpretations of what it means," Case Western University professor Jessie Hill told the Washington Examiner.
"It'll be very significant because it'll be really one of the first applications of this new opinion," Hill said.