A state law shielding hogs from inhumane treatment may face the chopping block in a coming Supreme Court case. It’s sad news, but it could teach animal welfare advocates a valuable lesson about effective advocacy.

In October, the Supreme Court heard oral arguments in National Pork Producers v. Ross. The case centers on Proposition 12, a California state law prohibiting the sale of pork products from animals raised in “inhumane” conditions. While Prop 12 includes provisions for many animals, the regulation requires a minimum cage size for the breeding sow that’s higher than national industry standards before pork products can be sold in California.

National Pork Producers v. Ross will test whether the entire pork industry in America can be subject to California’s regulations. And the prospects for Prop 12 are bleak. The National Pork Producers Council claims this law violates the dormant commerce clause, which prohibits states from enacting laws against interstate commerce.

They have a point. Prop 12 stands on shaky constitutional ground. It is likely the court will strike down the law.

That’s a shame, as Prop 12’s original goal — the protection of the welfare of pigs in the agricultural industry — is noble. Pigs are highly intelligent and comparably intelligent to the pet dogs we love. Yet, in the commercial agriculture industry, they often lack adequate conditions for living a healthy life. They are often kept in indoor Concentrated Animal Feeding Operations, which restrict their movement, overcrowd their facilities, and lead to pain, discomfort and reduced health.

Additionally, sows are kept in gestational feeding cages where they can barely stand or engage in normal behaviors.

On top of animal welfare concerns, the hog farms that Prop 12 would restrict have been linked to environmental and human harm, including increased mortality, respiratory illnesses, air pollution and water pollution. These conditions have led to a political and legal battle over pig farming in eastern North Carolina, and the industry has responded with “ag-gag” laws in the state preventing watchdogs from documenting these conditions (which has since been ruled unconstitutional). Similar battles over hog farms are continuing in states like Iowa and Minnesota, where much of the country’s pork is produced.

Yet the noble intentions of a new law mean little if it can’t hold up under constitutional scrutiny. While the outcome of the Supreme Court case is unclear, several justices seemed concerned about the implications of the California law for interstate commerce. During oral arguments, Justice Amy Coney Barrett hypothesized that Prop 12 could open the door to a slew of discriminatory trade policies between states. That doesn’t bode well for Prop 12.

If the animal welfare advocates who conceived of this legislation want to make a difference, they need to think outside the pen. The goal of animal welfare advocacy is often regulatory: to get laws passed that protect animals’ lives and welfare. But this approach undersells government subsidies’ role in funding these terrible conditions. Rather than risk the welfare of these animals on constitutionally shaky legislation, welfare advocates should push for removing the government subsidies that disproportionately benefit the livestock industry over their competitors.

To avoid constitutional concerns, California and welfare advocates should shift their focus away from passing regulations and toward eliminating subsidies that fund problem farms and turn a blind eye to animal abuse. The hog industry was one of the largest beneficiaries of the Coronavirus Food Assistance Program of 2020, receiving $612 million in subsidies in one year. In total, in 2020, the government gave $1.2 billion to the pork industry without concern for animal welfare or environmental effects.

These subsidies for livestock are not just a 2020 fluke. This is a policy decision by the government to support the animal agricultural industries over other alternatives. This policy to maintain the meat industry’s status quo costs taxpayers big time — $50 billion a year. Meanwhile, plant-based options and cell-based meat technologies receive only a small fraction of this funding, despite their smaller environmental, health and welfare tolls.

Rather than pick difficult, constitutionally questionable battles, animal welfare advocates should focus their efforts on removing the existing subsidies for animal agriculture industries (including pork) while advocating for increased research and development funding to improve alternatives to meat products, as well as tying any federal subsidies for the meat industry to specific ethical standards being met.

Doing so would prevent these messy legal battles while addressing the unfair playing field the government has created for plant-based and cell-based meat alternatives.