Today we report on a case between Happy, an elephant, and the Bronx Zoo, where Happy has been held captive for the past 45 years. Represented by an animal-rights group, Happy filed a petition for a writ of habeas corpus, claiming that her captivity is unlawful and that she should be allowed to go to an appropriate sanctuary where she could socialize with other elephants and roam more freely. Joining all other courts to have considered habeas petitions filed on behalf of (non-human) animals, a divided New York Court of Appeals, the state’s highest court, denied the petition, holding that the writ is “intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.” Nonhuman Rts. Project, Inc. v. Breheny, — N.E.3d —-, 2022 WL 2122141, at *3 (N.Y. 2022) (emphasis added). The ruling will be welcomed by drug and device manufacturers who use animals to develop and test their products.
You can’t help but feel for Happy. Born in the wild, she was torn from her mother and other family members when she was one. During her earlier years at the zoo, she had several companions, but they died over the years. Today, there is only one other elephant, from whom Happy is kept separate because they don’t get along. As biologists (and all who has been on safari) know, elephants are highly intelligent, highly social creatures. Under the circumstances, it seems likely that Happy is anything but happy.
The majority acknowledged that “elephants are intelligent beings, who have the capacity for self-awareness, long-term memory, intentional communication, learning and problem-solving skills, empathy, and significant emotional response.” 2022 WL 2122141, at *2. But as “impressive” as those capabilities are, said the court, she isn’t a human and therefore isn’t entitled to habeas relief. Id. at *3.
The court’s conclusion that Happy is not entitled to habeas relief rests on several prongs.
First, said the court, “the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement.” 2022 WL 2122141, at *2; see also id. at *6. Treating ‘person’ and ‘human being’ as synonymous, the court held that the writ “has no applicability to Happy” because, as “a nonhuman animal,” she “is not a ‘person’ subjected to illegal detention.” Id. at *1; see also id. at *3. Noting that “courts have consistently determined that rights and responsibilities associated with legal personhood cannot be bestowed on nonhuman animals,” the court observed that “legal personhood is often connected with the capacity, not just to benefit from the provision of legal rights, but also to assume legal duties and social responsibilities.” Id. at *4. From this the court concluded that neither Happy nor any other nonhuman animal could claim personhood and the associated right to a writ of habeas corpus because, “[u]nlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.” Id.
Second, the court said that it would not “turn a blind eye to the impact of any ruling that elephants (or autonomous beings more generally) have liberty interests.” 2022 WL 2122141, at *5. The court explained that
[g]ranting legal personhood to a nonhuman animal … would have significant implications for the interactions of humans and animals in all facets of life, including risking the disruption of property rights, the agricultural industry (among others), and medical research efforts. Indeed, followed to its logical conclusion, such a determination would call into question the very premises underlying pet ownership, the use of service animals, and the enlistment of animals in other forms of work.
Id. That pragmatic observation echoed the amicus brief filed by the National Association for Biomedical Research (NABR), an organization whose members include universities, researchers, patients, and pharmaceutical and biotechnology companies. After recounting the many laws that protect animals generally and animals used in research specifically, NABR warned that extending habeas rights to animals would upset the current balance between animal welfare and critical human interests. Citing various examples of live-saving drugs developed with animal testing, NABR noted that “[t]he vital role of animal research in advancing medicine cannot be overstated.” NABR Am. Br. 24. NABR explained that “[e]xtending habeas rights to animals would” jeopardize those advances by “impos[ing] untold new litigation costs on research universities, laboratories, and hospitals” given that anyone “could file a habeas petition seeking the release of an animal from a research facility, zoo, or other institution.” Id. at 23.
Finally, describing the extension of liberty interests to animals as a “sweeping” departure from the law up to now, the court declared that the decision whether to do so “is not a matter for the courts” but one for the legislature. 2022 WL 2122141, at *6–7.
Two justices dissented. They argued that historically courts have extended habeas rights to individuals—including women, children, enslaved people, and others—who lacked legal autonomy and the ability to assume legal duties. They contended that given this history there is no reason why animals ought to be categorically denied access to the writ. The fact that animals’ liberty rights have not been recognized previously, said the dissenters, is immaterial: the common law in general and the writ of habeas corpus in particular have evolved over time thanks to judicial decisions. In this instance, according to the dissenters, changing norms regarding the ethical treatment of animals and increased knowledge of animals justify extending habeas rights to animals.
The three opinions—the majority opinion and the two dissents—are worth reading. All too often we bloggers must slog through tedious, poorly written decisions so that you don’t have to (just as judges all too often must slog through tedious, poorly written briefs because they do have to). This is not one of those cases. The opinions are well written, with biting zingers and interesting surveys of the law.
That said, we should briefly pause to consider the composition of the court—seven human beings. One might wonder whether recusal was warranted. Under New York law as under federal law, judges are required to recuse themselves when their “impartiality might reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 548 (1994); accord In re LaBombard, 898 N.E.2d 14, 16 (N.Y. 2008). That is arguably the situation here, where members of a species that exploits other animals got to decide what rights, if any, those other animals have. No one could reasonably think that an antelope would receive a fair hearing before a tribunal of lions or that a woman would receive a fair hearing before a tribunal of religious zealots. Elephants and other nonhuman animals might fairly think that this tribunal, comprised entirely of humans, was stacked against them.