Pets aren’t persons yet, but action is needed
October 15, 2021, was a big day for hippos. That day, you might remember (who could forget?), the Animal Legal Defense Fund (ALDF) announced an Ohio judge ruled that the late Pablo Escobar’s ‘cocaine hippos’ are ‘interested persons’ in a lawsuit taking place in Colombia. Across the spectrum of those concerned about animal rights, eyebrows raised in hope or skepticism.
The ALDF’s headline stated, “Animals Recognized as Legal Persons for the First Time in US Court,” despite the fact that the Court made no such ruling. Stephen Wise, president of the Nonhuman Rights Project, considered the claim overblown. And lawyers have dismissed the court’s decision as far more limited and technical, hurried, and even misguided.
Now that the kerfuffle has died down, what was it all about, really, and what does it say about the future of animal welfare and rights in veterinary practices? For the answer, look to a movement which has taken hold in the last two decades.
“What we are seeing is scope creep, wherein attempts to characterize animals as sentient can be used to argue that animals have the same rights as ‘persons,’” according to attorney Nancy Halpern, DVM, former president of the New Jersey Veterinary Medical Association and chairman of the animal law practice for Fox Rothschild, LLP. These changes are, in the fact, the result of definitive efforts by several animal rights organizations to change the status of animals from property (no matter how extraordinary our relationship is with our pets) to persons, who have standing to pursue their own legal interests, she adds.
United States law recognizes both natural persons (people) and juridical or nonhuman “persons” like corporations. The latter have rights ranging from making political contributions to filing lawsuits.
“The perception of companion animals as sentient beings has been universally appealing, but when used as a legal argument by animal activists to then label animals victims of cruelty or domestic violence and therefore persons with standing to sue their assailant in court, this changes the nature of the relationship between animals and people,” Halpern says. And notably, it raises two urgent issues for veterinarians.
First, having legal standing as a person could ultimately allow animals—including farm animals, animals used in biomedical research, and even companion animals—to sue their owners, Halpern says. It may also allow other interested parties to bring suit on behalf of the animal.
“The key questions is, who may bring actions against the veterinarian?” Halpern asks. “If I own a dog, and she has cancer and the prognosis is four to six months, but I can extend her life for three months by using expensive and painful measures, I may decide I don’t want to do it, because I do not think it is in the best interest of my dog. But if my neighbor disagrees, then what?
“That’s where the standing issue [personhood] really becomes important,” she explains. “If an animal had legal standing as a person, I could see lawsuits filed on its behalf by someone other than the owner.”
A person must have some interest in the animal in order to file a malpractice suit, but the perception of who has an interest may become broader, Halpern adds.
“Animal rights groups have been effective in arguing they have associational standing in certain cases. As a group, they have effectively argued that ‘We’re interested in the wellbeing in this type of animal, this is a mission of our organizations, and therefore our members have a legitimate concern about particular animals, which affords standing,” Halpern explains.
And that brings us to the second urgent issue for veterinarians, Halpern says. Considering pets sentient, which may lead to granting them legal standing as persons, would likely result in awards of noneconomic damages in those states in which such awards are not statutorily available.
In turn, that could increase the cost of care as veterinarians practice defensive medicine and pay higher malpractice insurance premiums, just as physicians do. “That could create a situation where only people with means will be able to afford to have pets,” Halpern says. “Is that really beneficial to society when we know of the health benefits of the companion animal bond, for animals and people?
“While veterinarians can and do utilize medical techniques and treatments available for humans, do we really want to adopt the same path physicians must use for compensation of their services?” Halpern asks. “I think that is a great model not to follow.”
Sentience. Personhood. Malpractice. Damages. What should veterinarians make of this tangled mess?
To counter the trends, “Stay on top of issues which may affect companion animal practice,” Halpern advises. “Get involved in your state VMA and specifically look at proposed legislation.”
Even more important is building long-term relationships with your local and state officials. That could mean annual meet-and-greets, providing comments on proposed laws, or inviting legislators to VMA briefings.
“It’s often too late to take action after bills have been introduced,” she advises. “Veterinarians need to develop and continue relationships with their local council persons, county officials, and state legislators.”
“Unfortunately, animal rights groups are often looked to as the experts on animal welfare,” Halpern says. “That’s a shame. It should be veterinarians. We can still turn it around. It’s about developing relationships.”
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