Non-Ambulatory Animals as Persons?

I have been an admirer of Sherry F. Colb's FindLaw articles for months. It's always interesting to me to come across and read intelligent critical examinations of issues from a vegan -- and even an abolitionist -- perspective. Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, Colb has been a FindLaw columnist for the past ten years, providing clear insight into what sometimes seem to be morally complex court cases and media stories. A piece of hers from mid-April ("Federal Appeals Court Rejects Preemption Claim Against California 'Downed Animal' Law: A Victory for Animal Rights?") displays more of that keen and clear insight--although I disagree with part of the conclusion she reaches in it.

Colb's article is about U.S. Court of Appeals for the Ninth Circuit reversal the previous month of a district court's decision that preliminarily enjoined the enforcement of California Penal Code §599f. This is the "downed animal" law of which there's been much discussion in the animal movement over the past several months. According to this law, if it were actually enforced, slaughterhouses would be required to immediately euthanize non-ambulatory (i.e. so-called "downer") animals originally intended for slaughter for human consumption. They would also be required to utilize humane methods to move them, rather than dragging/pushing them. Much of the support for this law, as Colb explains, really rests upon concern for human safety, since the flesh of an animal incapable of standing or moving could very well be diseased and unfit for human consumption. Part of it stems from public response to a video circulated widely by the welfarist HSUS showing conscious "downer" cows being tortured by slaughterhouse workers trying to coerce them to keep moving.

Colb makes some excellent critical points concerning the law's pitiful shortcomings. First, she notes that "California's downed animal legislation does not recognize that any pig, cow, or other nonhuman animal has the right to live out her natural life". The law is about treatment and not about use. She goes on to note that the law in no way prohibits

the infliction of suffering on sentient animals. Though it is in reality not possible to slaughter billions of living creatures a year without causing immense pain and suffering to those creatures, consumers do seem to nurture the belief that while animals must die for meat (and, as informed consumers realize, for dairy and eggs as well), they need not necessarily suffer.

Basically, the law in question only targets the treatment of animals deemed unfit for human consumption -- not the ones who continue to considered useful as property, from which producers may still profit. Those other animals still labeled potential "food", she explains, will still live horrible lives by virtue of their being bred into a cycle whose only end is slaughter for human consumption. She points out that the "truth is that the entire group of animals would benefit from immediate euthanasia, if the alternative is the terror and pain of the slaughter process". I winced a little at the idea of the term "euthanasia" being suggested for living and relatively (i.e. compared to animals described as "downers") healthy enslaved animals who'd otherwise be capable of living out long lives, if given the opportunity to do so (and of course, there's the rub). I think that Colb's suggestion could very well warrant a separate blog post in the future, since the word, I think, is often misunderstood and sometimes the actions described by it are grossly misrepresented in mainstream media. Take, for instance, the recent news story concerning PeTA's killing of 97% of the animals relinquished to it in 2009 and of how the killings were described as "euthanasia". But I'm off on a tangent and need to get back on track...

Colb also points out, rightfully so, that even if this law does go through, that based on what seems to be the norm in the animal slaughter industry, it is unlikely that it would be consistently enforced. She describes the unfortunate norm in graphic detail -- the current grossly flawed inspection process which, even if performed in good faith and as efficiently as possible, cannot possibly keep up with and cover the "over 300,000 pigs" slaughtered daily in the US alone. According to Colb, it's this very flawed inspection process upon which pig farmers have come to rely to squeeze through any animals who, if noticed, would not pass inspection. More animals getting through to slaughter = more $$.

What concerns me about Colb's article is her conclusion that she writes, going on a hypothetical assumption that the law would pass and that it would be enforced appropriately. She writes that

once a law has passed, we ought to judge that law on its own merits (rather than focusing exclusively on what could have been accomplished instead).

She sees the hypothetical passing of the law as a "tiny step in the right direction" as it "rejects the status of non-ambulatory animals in instrumental terms". Furthermore, she states:

Within its relatively narrow domain, the law will do something positive and important. It will require that an animal who cannot be placed into the food supply be treated – if only for a tiny fraction of her life – as if her own experience matters. When she proves unable to walk to slaughter, the slaughterhouse that is holding her becomes obligated to provide her with an actual humane death.

The thing is, though, that non-ambulatory animals are animals whose status as property becomes deemed potentially irrelevant because downer animals are not, theoretically, supposed to be turned into food. Colb writes that the law "rejects the status of non-ambulatory animals in instrumental terms", but isn't it that they've been deemed useless that alters their status as property? Assuming, of course, that they're identified . Also, the fact that this law may apply to cows, for instance, while baby chicks are still disposed of as usual just reinforces that some species are more worth of a certain type of treatment than others. It seems to me that this law would be just one more drop in the regulationist bucket from which people who choose to continue consuming animals and animal products obtain the fodder they need to nourish their self-deception that there is anything ethical about continuing to use animals.