Book Review: The Animal Rights Debate: Abolition or Regulation

Posted on June 7, 2011 by Animal Law Section

IN PRINT
By Yolanda Eisenstein
Eisenstein Law Office

The Animal Rights Debate: Abolition or Regulation
Gary Francione and Robert Garner
Columbia University Press; New York 2010

Gary Francione, who you may remember from his groundbreaking book, Animals, Property, and the Law, and Robert Garner, a professor at the University of Leicester in the United Kingdom, engage in a debate between the goals of the “abolitionist” movement, which advocates vegan education, and those of the animal welfare movement, which supports the end of animal suffering through regulation.

The crux of the argument is whether a total focus on ethical vegan education would have been more successful than what has been achieved through legislation. Francione argues that virtually no progress has been made in animal protection and that time and money would have been better spent over the past twenty years on vegan education.  Furthermore, he argues that the animal protection laws that have been passed and the promotion of “free-range” and “grass fed” has merely served to assure the public that animals are being treated humanely and that there is no moral problem with eating them.

Garner of course, takes issue with Francione’s position and believes it wrong to take an all or nothing attitude while animals suffer.  He sees the vegan route as a “long-term” ambition at best and argues that we should do all we can, even if it means small victories, to reduce animal suffering through legislative means.

For those not familiar with the abolitionist approach, Francione is one of its leading proponents, making it a good primer on the subject. He makes the classic moral arguments against animal exploitation and the inherent problems with their status as property. The only answer for the abolitionist is the complete cessation of the use of animals, including phasing out of pet ownership.

Garner is British and not as well known in the United States, which led me to wonder why he was chosen. Was there no one in the U.S. willing to debate Francione on the issue?  Citizens of the United Kingdom and other Western European countries have a different attitude about animal protection, which made some of Garner’s arguments seem irrelevant to me. I also thought Garner missed some opportunities to make effective arguments.  It is not clear whether that was through a lack of familiarity with American attitudes or his reluctance to be more aggressive in his argument.

While I enjoyed the book at first, it quickly became repetitive and redundant, and I found the dialogue between the two at the end of the book to be particularly so. However, I considered it a “must-read” given Francione’s prominence in animal law and my interest in staying current on the literature.

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Animal Patents

Posted on June 7, 2011 by Animal Law Section

by Dustin Mauck
Fulbright & Jaworski LLP

ANIMAL PATENTS – RIGHT OR WRONG?
It may seem strange and it is definitely controversial, but the United States is one of a select few countries that will grant a patent on an animal, such as a mouse or a dog.  Should the United States grant patents on animals?  Opponents argue that granting animal patents is immoral and unethical, while proponents argue that animal patents stimulate innovation and enhance research related to humanitarian problems.  Hence, a debate rages on. 

What Is an Animal Patent?
Patents may be obtained for non-naturally occurring animals.  This is not to say that you can patent your mixed breed dog or cat, or that you can patent an improved dairy cow or a pig created through years of selective breeding.  A plant or animal that can be found in the wild is not patentable.[1]  Patentable animals are limited to those that have been engineered by humans, and thus do not exist in the wild.  These animals are commonly referred to as “transgenic” animals because their genome has been manipulated with genes or DNA from other animals or humans.[2]  Scientists manipulate these animals to exhibit characteristics that are desired for research or experimentation. 

One of the most famous transgenic animals is the Harvard “oncomouse.”  Researchers at Harvard genetically engineered a mouse that was highly susceptible to cancer for use in cancer research.[3]  In 1988, the United States Patent Office granted a patent on the oncomouse, which sparked a heated debate over the patenting of transgenic mammals.  Pro-patenting groups argue that patent protection is necessary to stimulate funding of the research needed to develop medical breakthroughs, while anti-patenting groups argue that the patenting of animals leads to their suffering and exploitation.  Since the oncomouse patent was granted, over 660 patents have been issued for transgenic animals such as pigs, rabbits, dogs, cattle, and mice.[4]  Patents have been obtained for transgenic animals that help to fight diseases such as Parkinson’s and the HIV virus.[5] 

Who Grants Animal Patents?
Many countries do not allow the patenting of animals.  When the Canadian patent for the Harvard oncomouse reached the Supreme Court of Canada in 2002, the court ruled that higher life forms, such as mammals, are not patentable.[6]  Other countries such as Belarus, Brazil, China, Denmark, India, Ireland, Netherlands, Norway, the Philippines, Russia, and Thailand agree with Canada and prohibit animal patents.[7]  However, in addition to the United States, the European Patent Office, United Kingdom, Australia, and Japan grant animal patents.[8]    

The United States patent system has two noteworthy restrictions related to the availability of animal patents:  (1) a utility restriction that the invention be useful or beneficial to society, and (2) a moral restriction prohibiting patents on human/animal chimeras.[9]  Generally, patents on transgenic animals satisfy the utility restriction because they are used for beneficial research, although inventions directly related to humans are excluded from patent protection.  The European Patent system has additional exclusions for inventions that are contrary to public policy and morality.  Under this regime, non-technological concerns, such as the well-being of animals, ethical consequences, and environmental risks, are considered during the patent process.[10]  Furthermore, in deciding whether to grant an animal patent, the European Patent system weighs the benefits to humanity derived from the invention against the suffering of the corresponding animals.[11]  Several groups feel that these additional non-technological concerns should be adopted in the United States. 

The Great Debate Over Animal Patents
There are numerous groups that oppose animal patents, including the American Anti-Vivisection Society (AAVS), the Alternatives Research & Development Foundation (ARDF), and PatentWatch.  These groups argue that “animal patents provide an incentive to harm animals for economic gain.”[12]  The manipulation of these animals leads to their suffering and exploitation, they argue, especially for animals that are engineered to have a defect or malady that enhances its research value.  As an example of this exploitation, opponents point to:  (1) a patent for creating rabbits with a mutation of the eyes that are used for research on human eyes, and (2) a patent for producing beagles with weakened immune systems that are used for research on infections of the lungs.  Opponents urge that the mutations of these animals and the corresponding research evidence their suffering and exploitation.  Overall, the opponents of animal patents feel that the engineering of animals is immoral and unethical, and that granting patent rights for transgenic animals promotes this practice. 

The proponents of animal patents, including research institutions and biotechnology companies, argue that animal patents “facilitate the development of more efficient food sources and better human disease models, increase productivity, and yield other significant benefits.”[13]  Patents enable investors and companies to risk resources and capital on research and development for the hope of obtaining a patent and the corresponding monopoly.  This provides the necessary incentive to innovate.  For example, the Harvard oncomouse was created to further cancer research in humans, and other genetically engineered animals are used to produce beneficial drugs or medications.[14]  Supporters of animal patents admit that there are moral issues involved, but they believe that the greater good is served by promoting research to solve social and medical problems.[15]  

However, the patent system may not be the proper vehicle to address the concerns animal patent opponents have about animal suffering.  A patent for a transgenic animal provides a relatively brief monopoly for the patent owner (approximately 20 years), but this may not be the main incentive for experimenting with transgenic animals.  Research institutions and corporations use transgenic animals to research treatments and medications that will benefit society, and transgenic animals that exhibit desired characteristics improve the efficiency and quality of this research.  The engineering of transgenic animals will likely continue with or without patent protection.  Moreover, at this time, Congressional action would be required to alter the law concerning the patenting of transgenic animals.  As a result, new laws regarding the control and protection of transgenic animals may provide a better way to address the prevention of animal suffering.   

[1] See Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (“[T]he laws of nature, physical phenomena, and abstract ideas have been held not patentable.” (citing Parker v. Flook, 437 U.S. 584 (1978)).
[2] “Bioethics and Patent Law: The Case of the Oncomouse,” WIPO Magazine (2006), http://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html (last visited April 13, 2011).
[3] See U.S. Patent No. 4,736,866 (filed June 22, 1984) (widely known as the first patent for a “Transgenic Non-Human Mammal”).
[4] See “USPTO Accepts Challenge on Legality of Animal Patents,” American Anti-Vivisection Society (2007), http://www.stopanimalpatents.org/images/pressrelease_rabbit_challenge_accepted.pdf (last visited April 13, 2011). 
[5] See, e.g., U.S. Patent 7,550,649 (filed Oct. 28, 2004) (claiming a transgenic mouse that is a model for Parkinson’s disease); U.S. Patent 5,574,206 (filed Aug. 24, 1994) (claiming a transgenic mouse carrying a transgene that expresses non-infectious HIV RNA).  
[6] “Bioethics and Patent Law: The Case of the Oncomouse,” WIPO Magazine (2006), http://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html (last visited April 13, 2011).
[7] Stop Animal Patents FAQ, http://www.stopanimalpatents.org/faq.html (last visited April 13, 2011). 
[8] Id. 
[9] Jerzy Koopman, “The Patentability of Transgenic Animals in the United States of America and the European Union: A Proposal for Harmonization,” 13 Fordham Intell. Prop. Media & Ent. L.J. 103, 179-181 (2002). 
[10] See id. at 181. 
[11] See id. 
[12] See “USPTO Accepts Challenge on Legality of Animal Patents,” American Anti-Vivisection Society (2007), http://www.stopanimalpatents.org/images/pressrelease_rabbit_challenge_accepted.pdf (last visited April 13, 2011). 
[13] David Manspeizer, “The Cheshire Cat, the March Hare, the Harvard Mouse: Animal Patents Open up a New, Genetically-Engineered Wonderland,” 43 Rutgers L. Rev. 417, 455 (1991). 
[14] See id. at 426-28. 
[15] See id. at 455.

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Stevens Article

Posted on June 6, 2011 by Animal Law Section

By David J. Chapman
Chapman Immigration Law Group

I must admit some naiveté because the term “crush video” meant nothing to me until the case of U.S. v. Stevens, 130 S.Ct. 1577 (2010), was decided on April 20, 2010 and the only word that can describe my reaction is disbelief.  Apparently crush videos primarily appeal to those weird dregs of humanity that derive a perverse sexual enjoyment in watching scantily clad women crushing small animals to death with their spiked heels or bare feet.  And I thought the revelation that some people have a foot fetish was weird?  The screams, whimpers and death throes of these innocent small animals apparently bring enjoyment to the individuals watching the depiction.  Although it takes an unusually warped person to enjoy such a repugnant depiction of the death of defenseless animals there are apparently a thousand people who qualify in this special category of weird in the U.S.  However, the U.S. v. Stevens case was not about approval or disapproval of these individuals or their strange predilections.

The case considered application of 18 U.S.C. §48, which prohibited knowingly creating an animal crush video if: “the person intends or has reason to know that the animal crush video will be distributed in, or [will use] a means or facility of, interstate or foreign commerce”, or “the animal crush video is distributed in, or [uses] a means or facility of, interstate or foreign commerce.”

However, it was not this conduct portion of the statute, but the definition of a crush video that became the Court’s primary focus.  The statute addressed the depiction in “. . . photograph, motion-picture film, video or digital recording, or electronic image. . .” of “. . . actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury” where such conduct is also obscene.

Although the majority was faced with speech valuation in U.S. v. Stevens, the case did not turn upon that issue.  Congress apparently felt that so long as they threw in the word “obscenity” that it could do just about anything to restrict speech involving crush videos.  Hiding the statute behind the rubric of obscenity initially raised the danger that the Court would once again be thrust into the unwinnable position of valuing speech.  Past U.S. Supreme Court cases such as Chaplinsky v. New Hampshire and Beauharnais v. Illinois placed the Court in the position of placing value on certain types of speech.  In those cases the Court tinkered around the edges of valuing speech and expression that many find repugnant.  The Court in the Stevens case recognized that the exercise of valuing speech is a dangerous endeavor and avoided it like the plague.  The Court avoided travel down the path chosen by Justice Brennan in Roth v. United States where he boldly cast the first stone into the cesspool of obscenity.  Cases such as Miller v. California followed Roth and retooled the standard for obscenity.

The U.S. v. Stevens case relied in the end not upon the valuation of speech, but upon the over breadth of the statute.  As an initial matter the Court stated that, “. . . the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  130 S. Ct. at 1584.  The Court did recognize that although obscenity, defamation, fraud, incitement and speech integral to criminal conduct are very narrow classes of speech not accorded protection, “animal cruelty” was not historically within the classes of unprotected speech.  Although the Court conceded that there may be areas of speech that are not historically found to be without protection, there was also no evidence that “animal cruelty” was one of those yet undiscovered areas of unprotected speech.

Although the Government claimed that the actions in the crush videos are prohibited by almost every state under cruelty laws, Stevens was not charged for crush video production.  Stevens ran a business selling videos depicting the equally repugnant practice of dog fighting.  As part of its defense of the statute, the Government advocated a test that stated that: “. . . “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck,” 130 S. Ct. at 1586.  The Court rejected this balancing test as “startling and dangerous”.  The Court was right in that regard as the balancing test leads to valuation of speech, which is exactly what the First Amendment frowns upon.  To adopt a balancing test would convert our judges or even worse our unelected bureaucrats into speech appraisers who estimate the value of speech against its costs.  The First Amendment stands for the opposite proposition.  One man’s trash is another man’s treasure.

The Court did admit that the Government’s push for a balancing test appeared to have some basis in precedent.  The Court then cleared up the appearance by concluding that it had never adopted such a balancing test and did not do so now.  The Court cited New York v. Ferber as a justifiable basis for the Government position.    Ferber dealt with prohibiting the distribution of material depicting the sexual performance of a person under the age of 16.  However, in U.S. v. Stevens the Court called Ferber a special case where the market for child pornography was intrinsically related to the underlying production, a production which was illegal throughout the nation.  Although the court did determine in Ferber that the value of the use of children in these productions was de minimis the Court in Stevens correctly points out that there was much more to Ferber than a simply balancing test.

This case does show how dangerous it is for Courts to embark on speech valuation.  Such valuations simply encourage legislative and executive branch efforts to restrict speech based on the popularity of speech.   The logical progression of Ferber is to attempt to prohibit crush videos because their production would be so intrinsically related to the repugnant conduct they depict.  However, there were a couple of problems with comparing cruelty with the sexual exploitation of children.  The first was that the production of this type of video is not universally prohibited across the United States.  Prohibitions on cruelty are one thing and video productions are another.  The second problem is that the definition of cruelty varies across the country, as do the sanctions for various acts.  Thus, unlike Ferber there is no universality.

If one did buy the Ferber line that a balancing test should apply, can a case be far removed where the very possession of materials is prohibited as in Osborne v. Ohio where prohibition of the mere possession of child pornography was upheld because of its relation to the criminal behavior?  The Court is right to avoid being goaded into valuing speech.  Rightfully the Court did not take the bait in the Stevens case and decide whether preventing animal cruelty was important enough to ban the mere creation of videos depicting animal cruelty.  The best opponent of bad speech and expression is good speech and expression in opposition.

In the end the case avoided the unpleasant task of valuing speech or adopting new areas of unprotected speech.  Stevens challenged the application of §48 on its face.  Stevens’ challenge would have required the Court to determine whether the statute could ever be applied in a constitutional manner.  That would have required the Court to determine whether crush videos could be prohibited.  In the end the Court fell back on over breadth as a reason to strike down the law, which Justice Alito’s dissent pointed out was really a misinterpretation of the over breadth doctrine.  The over breadth doctrine requires that a petitioner against whom a statute can be lawfully applied show that it reaches other conduct which cannot be prohibited.  Justice Alito pointed out that Stevens did not claim the statute could be lawfully applied to him and, thus, consideration of the over breadth doctrine was improper.  However, the Court clearly did not want to address the actual “crush video” situation because it would have had to create a precedent saying that crush videos specifically are protected speech.  Legitimizing the gruesome crushing of small animals does not make for popular reading.  Thus, the Court relied on the over breadth doctrine.

The Court did not grant a stamp of legitimacy to crush videos, but concluded that one major flaw of §48 was its definition of a crush video which included illegal depictions of wounding or killing animals.  The Court pointed out that all hunting is prohibited in the District of Columbia, but it is not prohibited elsewhere in the country.  Possibly a video depicting the hunting and killing or wounding of pheasant in North Dakota might be found to violate §48 in the District of Columbia.  In the end the overly broad definition of crush videos that rendered §48 unconstitutional.

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