This is the second of several stories exploring the contentious relationship between the scientific community that insists animal research is essential to medical progress and the animal rights activists working to abolish animal experimentation. In part one, we examine pressure put on the biomedical research community by an increasingly savvy animal-rights effort.
On December 19, 1994, animal protection lawyer Steven Wise—a deeply patient man—was frustrated. A decade into his 25-year plan to upend the fundamental legal principle that animals are property or “things” with no more rights than a table or bicycle, he was barely making a dent.
Wise’s passion for animal rights dates to 1979 when reading philosopher Peter Singer’s landmark book Animal Liberation proved both revelation and rude awakening. “I really felt that I could not really un-ring that bell,” he says. “There was more injustice there to be fought than any I could think of anywhere in the universe.”
Wise had found his calling. His grand ambition is for nothing short of a legal revolution. He wants to systematically overturn more than 2,000 years of law by winning basic common law rights for other sentient beings we now know suffer, feel fear, have complex emotions, and possess sometimes startling levels of intelligence. Welfare laws notwithstanding, unless they are “legal persons,” to Wise they have no rights at all in the eyes of the law and therefore their lives don’t count.
He had no illusions that change could come any way but slowly. “I realized this wasn’t like a 1930s Mickey Rooney and Judy Garland thing where they say, ‘Hey! Let’s put on a show!” But on that watershed day in December—his 44th birthday—he had an epiphany.
“I woke up and said this is not going fast enough,” he recalls, “and if I’m going to be pivotal in gaining legal rights for nonhuman animals—which I thought I was, and I think I will be—I’d better get moving.”
He walked away from his comfortable 18-year law partnership and founded The Center for the Expansion of Fundamental Rights, the world’s first nonprofit dedicated to achieving legal rights for nonhuman primates, and later the Nonhuman Rights Project.
In 2000, primate researcher Jane Goodall, who wrote the foreword, called his book, titled Rattling the Cage, “the animals’ Magna Carta, Declaration of Independence and Universal Declaration of Rights all in one.” The Yale Law Journal dubbed him a “piston” of the animal rights movement.
Wise subscribes to Darwin’s belief that any sharp dichotomy between human beings and other animals cannot survive a basic understanding of evolution.
It’s what legal scholar David Favre, a professor at Michigan State University College of Law and editor-in-chief of the Animal Legal & Historical Web Center, calls the culture of, “How special are we humans? Do we deserve a place of the gods in which we simply use everything else on the planet?”
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Animal law is a growth industry. “I would call it an emerging field,” says Frankie Trull, founder and president of the Foundation for Biomedical Research. “It’s in its infancy.” Harvard and Georgetown law schools first offered animal law courses in 1999. Now, approximately 121 U.S. law schools, including the top 10, offer them. There are 160 Student Animal Legal Defense Fund chapters nationally. And by April 2011, 47 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands had elevated some animal cruelty crimes from misdemeanors to felonies.
Pets, Vets and Stalking Horses
The animal rights movement may take aim at veterinarians, warn protectors of biomedical animal research. Click the image to read the story.
Steven Wise taught animal rights law at Harvard and at Tufts University School of Veterinary Medicine. He is now an adjunct professor at Lewis and Clark Law School in Oregon, home of the U.S.’s first environmental law journal and, since 1995, the journal Animal Law. And Wise was well ahead of the curve in 1980 when he filed his first veterinarian malpractice suit. A dog owner left her dog playing with a big stick and returned to find half of the stick missing. Fearing he’d swallowed it, she rushed him straight to a veterinarian. Negligence—the wrong X-ray view—failed to reveal the stick inside the dog, and after suffering through the night, he died. Wise found satisfaction in suing for damages.
Pepperdine University law professor Richard Cupp, says that even today, while “emotional distress” damages for the negligent death of a child are common, “If a dog is negligently killed, in most jurisdictions it would be like destroying a bicycle. There’s no emotional distress; it’s just the property value.”
Early on, when Wise made arguments on behalf of a dog, people laughed aloud in the courtroom. Nevertheless, he was, “ecstatic” just to be able to bring cases involving animals before a judge. But by 1985, the feeling faded, giving way to goals far loftier than pet trusts and animal custody battles. He’d visited biomedical research laboratories and slaughterhouses, become a vegetarian, and conceived his quarter-of-a-century plan.
Wise believes that nonhuman animals meet the criteria for “personhood” and other human-style rights and protections if they are enough like us to have “consciousness” or “mind”—self-awareness and the capacity to experience their own existence—and when they are capable of desiring things and of acting in a deliberate fashion to acquire them. Chimpanzees, for instance, use tools, and some can count, make a cup of tea, and communicate with sign language. African elephants, African grey parrots, dolphins, dogs, gorillas, orangutans, cetaceans, and others also have varied but impressive mental abilities.
Initially, however, Wise’s focus is chimpanzees and bonobos. Chimpanzees share 95–98.7 percent of their chromosomes with humans. This genetic closeness makes chimps and other primates prime candidates for certain research studies, but the similarity also powers the animal rights community’s call for a serious rethink on experimenting on them.
Wise believes animals should have rights to bodily liberty and bodily integrity—you can’t be touched without your consent, or, criminals aside, be physically confined. Many who share Wise’s reverence for animals, however, consider his goals unrealistic, undesirable, or both—undesirable because giving nonhuman primates human-style civil and legal rights would, they say, create a mountain of unintended consequences.
David Favre, for example, a longtime friend of Wise’s, stops short of the legal “personhood” for animals goal. He advocates for increasing their rights incrementally to perhaps include the kind of guardianship protections afforded children, the senile and the insane.
Critics warn that the impact of “personhood” could go far beyond scientific research to preclude certain animals being kept as pets or used as food. They ask where the line will be drawn. Might bacteria have rights? That’s what University of Chicago law professor Richard A. Epstein asked in a 1999 New York Times editorial, noting that, “there would be nothing left of human society if we treated animals not as property but as independent holders of rights.”
However, philosopher and ethicist Peter Singer, who co-founded the Great Ape Project with Italian philosopher Paola Cavalieri in 1993, calls only for limited rights akin to those afforded humans, such as freedom from torture, not rights to things like medical care or education.
In 2008, Spain became the first nation to give human-like rights to animals after its parliament approved a resolution supporting Singer and Cavalieri’s manifesto of “great ape personhood.” It decrees they receive three essential human rights—life, liberty, and freedom from physical and psychological torture.
Richard Cupp will tell you about his tight bond with his dog and how much he loves animals, yet he believes that the moral placing of pets on the same level as humans devalues humanity and that pets are not equal in value to humans.
There is a broad spectrum of opinion on these issues. And with the same people who favor laws to protect animals’ welfare often simultaneously supportive of their use in research, in circuses, or as food, they are inherently complicated.
Steven Wise’s path is clear to him, however, and he does not waver. His biggest foe is history—the “this is how it’s always been done” response. “But all of the good arguments are on our side,” he says. When he was starting out, he plugged the names of iconic animal rights philosophers Peter Singer and Tom Regan into a legal search engine. Nothing. Shocked, Wise concluded that writings on animal rights had taken a moral and philosophical approach, not a jurisprudential one, and so he went to work.
After penning law review articles “that not even my mother read,” he wrote more books, honing both his philosophy and legal strategy. His 2005 book, Though The Heavens May Fall, examined the trial in England in 1772 of James Somerset, a black man rescued from a ship en route to the West Indies. The court’s decision was a step forward in the slow move towards the abolition of slavery in Britain. To Wise, that book, “is a metaphor and a blueprint for how it can be done for any legal thing, whether you’re a black slave or a chimpanzee or a dolphin.”
As Wise’s quarter century draws to a close, the interdisciplinary Nonhuman Rights Project is working full tilt. It’s very serious business involving many minds: political scientists, sociologists, psychologists, lawyers, statisticians, cognitive scientists, primatologists, cetacean experts, public policy experts, and computer modelers.
Currently, more than 50 people in six “working groups” are analyzing relevant state laws and legal precedents. They are researching, for example, how proponents of gay marriage chose jurisdictions in which to litigate and how certain high courts deal with non-autonomous humans like the comatose, mentally retarded, embryos, and fetuses. They are trying to pinpoint the most promising causes of action and the friendliest states and jurisdictions in which to file suit.
The plan is to file a landmark case demanding state high courts declare at least one nonhuman animal possesses a legal right—and is therefore a legal “person.” Choosing the optimal venue—perhaps a state whose Supreme Court is weighted with female judges or has overturned an anti-gay marriage statute—is critical. Then the goal is clear: file a case, win it, and survive the inevitable appeal to the first-ever serious legal challenge to “thinghood.”
“We want to have the most powerful case that we can in front of them,” says Wise, “so maybe they’ll realize that they really can’t defend themselves, that what they’re doing is just kind of blindly imitating what’s been going on for hundreds and hundreds of years.”
He hopes to bring the first lawsuit in 2012. A case, he says, will not be hard to find, although the exact plaintiff—circus elephant, research lab primate?—hasn’t been determined.
(In October, People for the Ethical Treatment of Animals filed a lawsuit against SeaWorld on behalf of five orcas it says are being held in involuntary servitude in contravention of the U.S. Constitution’s 13th Amendment—which only applies to people. Favre, writing to the Associated Press at the time, said he thought this personhood case would not proceed far because the human plaintiffs lacked standing.)
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Favre thinks Wise sees “a worldwide view trial that’s going to crystallize all these things and injustices, and the judges are going to see the light and totally change the system.”
In the mid-1980s, Favre says he “subversively taught animal law as part of a course called Wildlife Law,” because it sounded less radical. Today, he believes that using the law to protect animals from abusive humans is essential. But his paradigm sidesteps “legal personhood” entirely, advocating for an incremental approach to gaining protections and limited legal rights for animals. He favors the concept of “living property,” predicated on some animals already having limited legal rights that other property, like balky computers, don’t possess.
Philosopher Tom Regan has criticized the incremental approach. He says it backfires because it “undermines the eventual goal of abolition by making the terms of bondage less onerous and, therefore, making it less pressing that any action be taken.”
However, Favre believes philosophers don’t grasp to what extent legal rights are “a product of compromise and incremental change and smallness, as opposed to sudden insight and transformation of a legal system.”
He sees the Chimpanzee Health Improvement, Maintenance, and Protection Act of 2000, which says that research animals are entitled to a pleasant retirement, as an example of incremental progress. It’s also further proof to him that although property, research chimpanzees are “morally relevant” beings to whom society has obligations. The same seems true of the National Institutes of Health’s announcement last week that it was rethinking new federal research involving chimpanzees, although it is maintaining its current stable of research animals.
“There’s no rat retirement,” Favre says. “They can kill the rat as soon as the experiment’s over. But they know psychologically you can’t just shoot a chimpanzee after the experiment is over, that there’s a moral duty there.”
He envisions increased protections akin to those afforded infants and the mentally incompetent working well without the need to show that primates are human-like or changing their “property” status. A chimpanzee can be the specifically named beneficiary of a trust—that, too, shows he or she is a legally relevant being whose interests must be protected.
And Favre sees state and district courts as great venues in which to move things along.
“I’m just a little more pragmatic,” he says. “I want to tell the judge, ‘We don’t need a revolution. In fact, guess what? You’re already halfway down the trail. And it’s the normal evolution of how we deal with new concerns and new ideas, and therefore, Judge, I’m just asking you to move the ball along a little, 5 yards or 10 yards.’”
Favre is less concerned with crashing through what Wise sees as a high, thick legal wall separating human and nonhuman animals, and more intent on, “just fording the stream, and we just got to find the right rocks to cross over on.”
“We don’t talk about the interest of cars, right?” he says. “Or any of the other things that are things. Clearly, we as human beings understand, particularly now in this world of really extreme ownership of pets, that a dog has interests. It has desires. It has abilities. It has all sorts of things that are, in fact, almost childlike. And therefore you can say with a straight face before a judge, ‘Judge, you need to make a decision that’s going to best accommodate the interest of this particular animal. What’s in the best interest of the animal?’ It parallels the familiar concept of, ‘What’s in the best interest of a child?’”
In his paper, “Living Property,” Favre argues that not all of animals’ various interests have equal weight, and that the law can balance the interests of humans and of animals, “and decide if one is superior to the other.”
Richard Cupp favors increasing protections for animals over expanding their rights. The very term “animal rights” bothers him because it is so fuzzy. Society tends to view rights as inherently good, he says. “The Civil Rights Movement is the most shining example of where an expansion of discussion of rights has been incredibly good for our society.”
Yet rights come with a cost and responsibility, and animals “are not able to accept responsibilities.” Cupp believes “personhood” would be more harmful than helpful, “because it pretends that animals have the capacity to engage in a social contract when they don’t.”
Animals’ roles in people’s lives have changed dramatically from when cows were for milk and dogs guarded farms—the view on which the property damages paradigm is based. In 2009, there were approximately 171 million “owned” cats and dogs nationwide, and many people now have animals for emotional rather than monetary reasons. “So, it’s an appealing argument to say well, then law should evolve to keep up with society’s evolution,” he says. “My children might be a little bit more open to Wise’s ideas than I am, and their children might be a little more open yet.” Nonetheless, efforts like a proposed ordinance in San Francisco to ban sales of animals as pets have been characterized as “nutty” by mainstream commentators.
Animal rightists worry that animal law taught in a university that houses an animal research facility might take on a pro-research cast. Conversely, Frankie Trull and others in biomedical research believe that animal law courses are primarily taught “from an animal rights perspective” and in support of assigning rights of some kind to animals.
That was the argument of Oregon Health Sciences University’s P. Michael Conn, who has been harassed by animal rights protesters, in a December 2009 opinion piece for The Scientist. He wrote that he welcomed as a “forward step” the use of the law instead of “violence and threats” to advance concepts of animal rights. But, he noted that 41 percent of law schools have connections to medical schools, and 69 percent of the schools teaching animal law are housed in universities that conduct animal research.
“Courses that promote standards for humane animal care and welfare are unlikely to provoke conflict,” he wrote, “but programs championing animal rights or ‘liberation’ set up adversarial potential on campuses and pose a serious risk to the future of animal research.”
Joyce Tischler, founder and chief counsel of the Animal Legal Defense Fund (ALDF) said such reactions remind her of early environmental law classes, when the refrain was, “Oh my God, it’s so radical!” She says that Steven Wise aside, courses are basically animal protection law and may not even include a section on animal rights.
ALDF attorney Matthew Liebman responded to Conn on ALDF’s website saying that “there is no doubt that at least a few animal research programs have attempted to block the addition of animal law courses or at least alter their content.” While in a follow-up e-mail he explained that his statement was “anecdotal,” he did think Conn’s editorial “demonstrates the anxiety many researchers feel about the proliferation of animal law classes.”
They are certainly not going away. Lewis & Clark Law School’s Center for Animal Law Studies will present the 9th annual National Animal Law Competitions, an inter-law school competition in collaboration with the ALDF, at UCLA in February 2012.
Pacific Standard magazine, 2011
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