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Animal Personhood—A Threat Steve Michael |
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In a focused and determined effort to grant additional legal rights and protections for animals, including animals involved in research, lawyers within the animal rights movement have begun to lay the groundwork for testing new legal theories. Even though many lawyers involved in this new movement are sincere in their concern about the treatment of animals, many are also flatly opposed to the use of animals in research. This long-term, step-by-step strategy includes a multi-front campaign to: toughen state animal cruelty laws; authorize non-economic damage awards (i.e., pain and distress, loss of companionship, etc.) for cases in which animals are killed or harmed; establish new legal torts through judge-made case law; replace the term “owner” with “guardian” in local and state statutes; enact laws that allow trusts to be set up for family pets; make it easier to file lawsuits by eliminating standing requirements and permitting a private right of action under the Animal Welfare Act (AWA); and eventually establish a form of legal personhood for some species of animals. While many of these strategies do not appear, at first glance, to affect laboratory animals, the “sum of their parts” has the potential to have a significant impact on life-saving medical and scientific research. This movement is being driven by an increasingly sophisticated group of highly skilled lawyers. However, leaders in the new field of animal law acknowledge they do not know which legal theories will best advance their objectives. This point is illustrated by a quote from Joyce Tischler, executive director of the Animal Legal Defense Fund. Tischler wrote in the epilogue of the animal law casebook used at most law schools: “When and how legal rights for animals will be established is as yet unknown. We are only beginning to explore the legal theories that may be argued. Perhaps a student reading this casebook today will be part of the effort to achieve that breakthrough.”(1) The campaign to provide new legal rights for animals has received increasing attention in the press over the last few years. Much of the press attention has been centered on Steven Wise’s second book, Drawing the Line: Science and the Case for Animal Rights. Wise is a practicing attorney and the first person to teach animal law at Harvard Law School. He taught animal law at several other law schools around the country and is one of the leading advocates for establishing legal “personhood” for some animals. Wise is not alone. A growing number of animal rights lawyers are writing about this issue, lobbying for changes in state and federal laws, and filing suit in state and federal courts. Many of the most outspoken advocates of new legal rights for animals candidly acknowledge they oppose all animal research. Two years ago, I attended a symposium at Harvard Law School featuring legal scholars and lawyers who discussed the possibility of obtaining legal rights for chimpanzees and other great apes. I asked the following question at the end of one of the panel discussions: “Under what circumstances would it be permissible to use chimpanzees in medical research? Is it always wrong? Morally wrong? If there were significant and clear benefits for finding cures to serious illnesses, would it then be permissible to use chimpanzees in research?” Each of the panelists responded to this question. Below are selected excerpts from each response. Steven Wise: “Well, at least legally, and probably morally, the only time I believe one should be able to use a chimpanzee in research is a situation where one would also use a four-year-old human child. Not many.” Roger Fouts (Roger S. Fouts is a Professor of Psychology and Co-Director of the Chimpanzee-Human Communication Institute): “Why are we afraid of death, when it is such a natural thing? Why do we have to take an endangered species [chimpanzees] to help an overpopulated species [humans] to become more overpopulated?” David Favre (David S. Favre is Senior Associate Dean/Professor of Law at Detroit College of Law, Michigan State University): As part of his response to my question, Steven Wise asked David Favre to explain how Favre’s concept of a new legal tort (i.e., legal wrong for which a court would award damages) would apply when a biomedical experiment on a chimpanzee might advance human health. Favre called this new tort, “intentional interference with the primary interests of a chimpanzee.” Favre’s response to the question was, “Well, I think that is a false premise. I don’t know the fact pattern where you could say doing x to x chimpanzee is going to produce a saved human life. The reality of how science works just does not allow that fact pattern to come up. But yes, you are suggesting an absolute right. I am suggesting the relative right of a balancing of interests. But I feel comfortable that in ninety-nine percent of the cases, we end up saving the chimpanzee.” To address this clear threat to animal research, several scientific organizations including APS, FASEB, ASPET, AAA, AAMC, the Society for Neuroscience, the American College of Neuropsychopharmacology (ACNP), and the American Academy of Neurology (AAN), initiated a project coordinated through the National Association for Biomedical Research (NABR) aimed at developing a coherent legal strategy to address these new “animal law” and “legal personhood” initiatives. This is a five-year effort, starting first with a foundation of legal research, followed by a legal and political strategy that would also include coalition building and outreach. The ultimate goal of the project is to be fully prepared when and if a significant “personhood” or other “animal law” case is brought before a federal or state court. What is Personhood? The term “personhood” for animals is widely used among animal rights lawyers and advocates, their opponents, and the popular media. There is no single meaning to this term, nor are the implications clear if “personhood” is granted to animals. What does it mean to grant personhood to animals? Should all animals be granted personhood or only some? If some, how do we decide which ones? Should it be those that exceed a certain threshold of cognitive abilities, or those we especially love as pets? There are no answers to these questions. Those of us concerned about the implications to research if this movement gains steam don’t fully understand this term, but neither does the other side. Wise, who has done the most to popularize the notion of personhood for animals, has a narrow view of what this means. He believes certain animals should be granted basic legal rights because they have mental abilities sufficiently similar to humans. For Wise, the basic right to be conferred is the right to bodily integrity, which means no captivity and no invasive medical research. Wise argues basic rights should be granted to certain animals on two separate legal grounds, 1) liberty and 2) equality. For both, the essence of his argument is that likes should be treated alike. Certain animals are so much like humans, based upon their mental abilities, they should enjoy at a minimum, the basic legal rights afforded to the least capable humans. Not all animal lawyers or animal rights advocates agree with this notion. In fact, most do not. The most prominent legal scholars who have spoken on animal rights issues have not endorsed the “personhood” argument as presented by Wise. Many legal scholars believe personhood should be bestowed upon animals in a legal sense, but not for the purposes of establishing “rights.” What is the difference? The law often allows legal issues to be decided in a manner that might otherwise be precluded, referring to these as “legal fictions.” For example, the law confers “personhood” on many inanimate objects. Corporations and partnerships are legal persons under the law. So are certain churches, families, labor unions, municipalities and states. Specific ships and oil rigs can be considered “persons” under the law. They all can sue and be sued. The argument is why animals should be excluded from this legal fiction. Two very prominent legal scholars, Laurence Tribe and Cass Sunstein, subscribe to this view of personhood. (Tribe is the Ralph S. Tyler, Jr. Professor of Constitutional Law, and Carl M. Loeb University Professor at Harvard Law School. Tribe is arguably the most prominent constitutional law scholar in the country. His constitutional law treatise was the most widely cited legal document of the 20th century. Cass R. Sunstein is the Karl Llewellyn Distinguished Service Professor at the University of Chicago and has written extensively on animal law issues.) They agree legal personhood should be granted to permit animals’ representatives to file a lawsuit to enforce existing rights, not necessarily to establish new rights. This still represents a significant threat to the research community, but it’s not the same personhood argument being made by Wise. Many other animal lawyers and animal rights groups seem to view the personhood issue in the context of the current treatment of animals as property under state laws. For many, the significance of eliminating the property status of animals allows much higher damage awards in lawsuits involving pets and other animals. So how do we get to personhood? Obviously the answer to this question depends upon your definition. Those with views similar to Tribe and Sunstein are seeking statutory changes to the Animal Welfare Act, as well as changes to state animal protection laws. Those who want to eliminate the property status of animals are seeking changes to state statutes, as well as local and municipal ordinances. In addition, lawsuits aimed at changing state common law are being brought by animal lawyers across the country. Many of these lawsuits are asking state judges to use their common law powers to change the law. Lawsuits have been filed seeking damages for intentional or negligent infliction of emotional distress in cases in which a pet has been killed or harmed. Loss of companionship cases and veterinary malpractice cases are increasingly being filed. All of these activities, if successful, will have the effect of breaking down the traditional view of animals as property under the law. Those with more radical views about personhood, like Wise, understand that their view of animals will best be accepted by using a step-by-step approach. They seek small gains wherever they can be achieved. Each success will be followed by new, modest, and attainable goals. They are taking a long-term view. Wise likes to quote economist Robert Samuelson who said: “Progress occurs funeral by funeral.” (2) Wise uses this quote in the context of court decisions. He believes as older judges who are wedded to certain precedents die off, new, younger judges who once may have been animal rights lawyers will be in a position to establish law more favorable to the animal rights community. Wise understands establishing his view of personhood for animals must be preceded by significant social and legal change. Even if the day comes when he believes some judges in some courts are ready to establish new legal precedents, Wise would continue with his step-at-a-time approach. He would first ask that legal personhood be granted to several of the great apes. As we increase our knowledge of other animals, personhood could be expanded to other species as courts and legislatures become more willing to establish new legal rights. Many other animal rights lawyers are also content to implement a long-term, step-by-step strategy. This strategy, though not necessarily coordinated, involves a multi-front campaign to slowly but consistently change the attitudes of the public who will then influence public policy and future court decisions. They will continue to push for new laws to increase the regulatory burden on researchers and institutions, and many will advocate for an outright ban on animal research. Animal rights lawyers and advocates have had some success. For example:
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