Animal Welfare Everywhere
by Michael C. Dorf
My most recent Verdict column discusses Tuesday's SCOTUS oral argument in National Pork Producers Council (NPPC) v. Ross, the pork industry’s challenge to California’s Proposition 12, which bans the sale of meat produced by confining pigs in gestation crates and in other ways that fail to satisfy California's humane treatment standards. The column follows up on an August Verdict column in which I pondered the potential implications of a victory for California for red-state efforts to ban the importation of abortion pills from other states. Although this week's argument did not focus on abortion pills, the Justices' questions revealed that they are concerned about the implications of a victory for either side. My column concludes that there are slippery slopes in either direction and that therefore perhaps the Court should leave the matter to political processes at the state level (where price-conscious consumers give out-of-state producers virtual representation) and in Congress (which can enact federal laws pre-empting state laws that unduly burden interstate commerce).
Regular readers of my work may be disappointed to discover that my discussion of the Prop 12 case in both columns addresses broad issues regarding the scope of the Dormant Commerce Clause but fails to contextualize the case with regard to animal welfare. In today's essay, I remedy that gap.
I'll say a few words about the half a million pigs slaughtered in the U.S. every day to feed Americans' taste for pork, as well as two particular pigs who avoided that fate thanks to the efforts of Wayne Hsiung and Paul Picklesimer. Their open rescue of Lily and Lizzie led to an expensive federal investigation and felony charges in state court in Utah. Despite the trial judge's exclusion of nearly all the evidence of the cruel conditions at the Smithfield facility from which Hsiung and Picklesimer rescued Lily and Lizzie, last week a jury drawn from "a part of rural Utah whose economy is largely tied to the fortunes of agricultural giants like Smithfield" acquitted them on all charges. (The quotation marks in that last sentence enclose language drawn from an excellent NY Times article following the acquittal. An article in The Intercept also provides a useful account of the case.)
Hsiung is the co-founder and Picklesimer is a member of Direct Action Everywhere (DxE), a network of activists who, as their name suggests, take direct (but always nonviolent) action to challenge the injustice of the status quo. I'm going to use the DxE acquittals and the Prop 12 case to discuss a topic that I have addressed on occasion in the past and that occupied Professor Sherry Colb and me in Chapter 5 of our book Beating Hearts: Abortion and Animal Rights--the relation between laws and other efforts to reduce the cruelty of animal agriculture, on one hand, and efforts to abolish animal agriculture, on the other hand.
It might be helpful to begin by distinguishing animal welfare from animal rights. As used in common parlance, laws and activities that aim to promote animal welfare accept that human beings will breed, confine, raise, exploit, and slaughter nonhuman animals for food and other purposes. Welfare reforms aim to reduce the suffering of animals so used. By contrast, proponents of animal rights object to all or almost all animal agriculture on the ground that it is inherently unjust, varying only in degree of cruelty.
The Humane Society of the United States (HSUS)--which supported California in defending Prop 12--is an example of an animal welfare organization. DxE also engages in animal welfare campaigns and makes statements in support of animal welfare. For example, upon his acquittal, Hsiung said (as quoted in the Times article): "Instead of trying to put us in prison, . . . [t]he better thing to do is just take care of your animals." That statement sounds in welfarism, not rights, because from an animal rights perspective the better thing for Smithfield and other companies to do is to stop exploiting animals altogether.
Nonetheless, the distinction between welfare and rights is less sharp than one might think. Many of the people who work for animal welfare organizations like HSUS are vegans committed to the end of animal agriculture, but the best-funded organizations promote welfare, not rights. With full-time employment opportunities for activists limited, people who support abolition of animal agriculture frequently find themselves working to reform rather than abolish it.
Meanwhile, some activists who support abolition of animal agriculture pursue animal welfare as part of a long-term strategy to get there step by step. DxE itself is a leading example. Its website states that it aims "to achieve revolutionary social and political change for animals in one generation." A roadmap document posted on DxE's website sets 2040 as the target date to end "animal farming in the US."
How? A DxE video contends that social science research shows that if only (or perhaps not even) 3.5 percent of the population take sustained nonviolent direct action, major change happens. I am dubious of this claim for two reasons.
First, 3.5 percent of the U.S. population is over 11 million people. I have seen widely varying estimates of the number of Americans who are vegans or vegetarians, but even if we accept the likely very exaggerated high-end estimate of 6 percent vegans (based on self-reports), roughly half of all the vegans would need to engage in sustained nonviolent direct action to achieve DxE's goal. That's a tall order, especially because many of those self-described vegans are in it for health benefits and so not likely to be committed to the cause. And many others are probably just too shy. How many people are willing to risk prison to engage in the sorts of activities that DxE organizes? Even the protests that are not likely to lead to jail time take a certain kind of courage (and perhaps a certain kind of personality) that most people supporting a cause lack.
Still, DxE says that the actual threshold for change may be substantially lower than 3.5 percent, and whatever its size now, the vegan movement is undoubtedly growing. Accordingly, I don't rule out the possibility that the movement reaches a critical mass. But that leads me to my second reason for doubting the tipping-point theory of social change: its failure to consider counter-movement mobilization.
My Cornell Government Department colleague and occasional co-author Sidney Tarrow has written at length about the dynamics by which individuals and groups in social movements engage in political contestation to bring about social and/or legal change. It is almost never a one-sided affair. Rather, movements that challenge the status quo typically catalyze counter-movements. Movement and counter-movement then engage in cycles of contestation. Sometimes the movement wins; sometimes the counter-movement does; sometimes there is a stalemate; and sometimes there is a back and forth.
Consider the cycles of contestation in the United States between the movement for abortion rights (itself mostly overlapping with the broader movement for sex equality) and the counter-movement against abortion (which overlaps substantially with religious conservatism more broadly). The movement scored victories in the 1970s, which helped catalyze the counter-movement to push for change in state legislatures, the Republican Party, and ultimately the Supreme Court, resulting in the overruling of Roe and the enactment and/or enforcement of restrictive abortion laws in many states. Now the abortion rights movement is energized to fight back. No one knows how this back-and-forth will play out over the coming decades, but one thing is certain: achieving critical mass—even a critical mass of more than 3.5% of the population who are willing to engage in “sustained nonviolent direct action”—will not ensure victory for either side. That’s because it’s likely that more than 3.5% of the population are active on each side of the issue.
As a matter of simple arithmetic, the DxE claim can’t be right whenever a movement finds itself opposed by a robust counter-movement. It’s logically impossible for a movement for X and a counter-movement for not-X each to be guaranteed success because each has 3.5% of the population actively supporting its cause.
Yet even as I’m dubious about DxE’s broad claims regarding inevitability, I am hopeful about the particulars. There is at least some chance that the dynamic with regard to animal rights will resemble what we saw with respect to the movement for marriage equality (and LGBTQ+ rights more broadly). The movement made its justice claims; social conservatives counter-organized to “defend” traditional marriage; but once the general public focused on the issue it became obvious that the opposition’s arguments were incredibly weak. (As Professor Tarrow and I argued, the sequence of contestation around marriage equality was a bit unusual, but that’s not important to my point here.)
We could see the same dynamic with respect to animal rights. There is of course industry opposition to ending animal agriculture, but that’s not exactly a counter-movement, much less a set of arguments. The moral bankruptcy of the animal exploitation position was on display in the Prop 12 oral argument when Chief Justice Roberts suggested that there’s a moral basis for opposing animal welfare measures that impose financial costs. He said that "people in some states, maybe the ones that produce a lot of pork, . . . may think there's a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices." That’s obviously a makeweight position, however, because pork is actually very expensive when compared with plant-based foods, especially if one considers the negative externalities of animal agriculture, such as air and water pollution, human illnesses, and greenhouse gas emissions.
Aside from industry propaganda, the most substantial obstacle to progress on animal rights is the tendency of human beings to rationalize. People who currently eat animals and their products do not want to change, so they tell themselves that their behavior is normal and that we animal rights activists are extremists and weirdos. (Okay, a lot of us are weirdos, but still . . . .) Many current consumers of animal products support animal welfare measures like Prop 12 and, if called upon to sit on a jury in a case involving DxE or other activists, sympathize with the defendants, because doing so enables them to feel that cruelty to animals is aberrant rather than inherent in animal agriculture. To win these people over it’s less important to expose the weakness of the anti-animal-rights position than it is to assure them that they can have just as much pleasure in eating vegan as they do now. For that reason, although I have long thought that some of the most effective vegan advocacy is good vegan food. (Sherry routinely baked cookies and other treats each week for her animal rights class.)
Thus, there is some reason for cautious optimism that, as with marriage equality, so too here, once the public focuses sufficient attention on the reality of animal agriculture, they will come to realize that this really is a one-sided issue. At this point, there is no anti-animal-rights counter-movement, only industry propaganda and people telling themselves “mmmm, bacon.”