When a court hearing was ordered to determine whether two chimpanzees, named Hercules and Leo, are being "unlawfully detained" by the State University of New York at Stony Brook, the primates (and their lawyers) made a bit of history. No, New York State Supreme Court Justice Barbara Jaffe did not decree that the chimps had all the rights that human beings have — as some observers initially thought when she granted a "writ of habeas corpus." (Generally, only prisoners use habeas corpus to petition for their freedom.) By the next day, the judge had scratched out the habeas corpus reference in her order to show cause. She is simply requiring the parties — without the chimps — to show up in court and plead their cases.
But the mere fact that SUNY is being ordered into court is significant. The hearing is not about whether the chimps, which are apparently kept for anatomical study on movement and muscles, are being treated badly or whether the university is violating any existing animal welfare statutes. Rather, lawyers for the Nonhuman Rights Project, which filed the suit on behalf of Hercules and Leo, are arguing that SUNY has no legal right to hold the chimps. The issue is not their welfare but their freedom.
Even lawyers for some animal welfare groups acknowledge that the chimps are unlikely to prevail. And if they do, it's not as if they will be set loose on the streets of suburban Stony Brook. They will go to an expansive sanctuary where they will have more autonomy. But just having a day in court to argue that primates' higher cognitive ability gives them the right to "bodily liberty" is a step toward upgrading their status, because it challenges the notion that animals should be considered mere property, like a sofa or a refrigerator. The Nonhuman Rights Project contends that chimps and other highly capable animals should be considered not "things" but "persons" in the narrow legal sense of having a right to freedom.
There has already been a tremendous evolution over the last few decades in how we treat animals, be they chimps or poodles. They may be considered property in some senses, but they are protected far better than sofas. There are numerous federal and state anti-cruelty laws. In Los Angeles alone, there is an Animal Protection Unit in the city attorney's office and an Animal Cruelty Task Force within the Police Department. Dog fighting is a felony in all 50 states. More than half the states extend domestic violence orders of protection to pets, requiring abusers to stay away from their animals.
And the SUNY hearing comes at a time when scientists are using fewer chimpanzees for research. The National Institutes of Health announced that it would retire most of its chimps to sanctuaries, concluding that advances in medical research make them less necessary as genetic stand-ins for humans. More than two dozen pharmaceutical companies have policies barring or discouraging research on chimps. GlaxoSmithKline and Merck & Co. ban it altogether.
Yet in other ways, we still treat animals as property. A person — an "owner" — can take a perfectly healthy pet to a veterinarian and demand that it be euthanized. (Of course, vets can refuse and often do.) And while there are some animal welfare statutes that govern agriculture, millions of animals raised for food must endure miserable conditions before they are slaughtered.
The hearing later this month will raise new questions about the property status of animals. If chimps can't be held for research, can they be held at zoos? Could lawyers request the freedom of orangutans, elephants and other species with a "higher cognitive ability"? For that matter, why do animals with higher cognitive abilities have more of a right to freedom than other animals? What would the implications of such an expansion of rights be for biomedical research?
Even if SUNY prevails, as expected, these questions are worth asking. The relationship between humans and animals has changed dramatically over the years. (California allowed grizzly bears to be hunted into extinction in the state; that would never be allowed today.) And it will continue to evolve.
No, animals are not people and they are not entitled to all of our rights. But they are living creatures, some with substantial capacities for emotion and cognition. They deserve the respect and protection of humans.