10. Church of the Lukumi Babalu Aye, Inc., et al. v. City of Hialeah 61 U.S.L.W. 4587 (U.S. 1993). See also "Excerpts from Supreme Court Opinions on the Ritual Sacrifice of Animals," The New York Times, 11 June 1993, Section 1.
11. Although the Hialeah decision was unanimous, three justices expressed disagreement with the Smith ruling (see note 7). In a concurring opinion, Justice Blackmun, joined by Justice O ’ Connor, wrote: "This case does not present, and therefore I decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment."
12. For an analysis of the tensions between feminism and liberalism when sex is involved, see Leidholdt and Raymond (1990).
14. For a critique of the opposition to antipornography legislation, see MacKinnon (1990).
15. This point is made often in MacKinnon ’ s writings.
16. See Bass (1992) and note 8 for an update on the Connecticut law.
17. National Public Radio, Morning Edition, 3 December 1992.
18. Flag burning also involves action, but is still protected as speech. I credit Josephine Donovan for this observation, which is considered at the end of this section.
19. Animal rights activists are habitually derided as "Bambi lovers" or "bunny huggers" when the object is to protect the practice of animal killing for sport or food. The epithets are meant to imply that the activists are overly emotional and wrongly anthropomorphize animals. On the other hand, when the issue is animal experimentation, the epithet of choice is "terrorists." The term "terrorist" was given official sanction by the then Secretary of Health and Human Services Louis Sullivan, who used it on the eve of the historic March for the Animals at Washington, D.C., in June 1990. This characterization prompted a prominent animal rights leader to quip, "We used to be little old ladies in tennis shoes, now we have become terrorists!"
20. This is the official explanation given to justify these courses. Animal advocates charge that the courses are used to recruit children into hunting and trapping activities.
21. The discussion in this paragraph has been influenced by and closely follows the arguments presented by University of Chicago Professor Cass Sunstein in a seminar on Pornography and the First Amendment given 14 April 1993 at the University of Michigan. For a detailed exposition, see Sunstein (1993b).
22. For a detailed history and analysis of the University of Wisconsin ’ s code in light of recent court decisions, see Siegel (1993).
23. The case against the hunt protesters who peacefully followed hunters in the woods of the Pinckney State Recreation Area, Michigan, in October 1992 was dismissed on a technicality. Judge Bronson of the 14th District Court did find that the hungers were interfered with and harassed, but ruled that they were not engaging in lawful hunt at the time because they were illegally present in the woods before the posted park hours of 8:00 a.m. to 10:00 p.m. The prosecution argued that the hunters were exempt from the posted restrictions, but the assistant park manager, called by the defense, testified that there was no such written exemption, and that the park rules were selectively enforced for nonhunters only.
24. I do not mean to compare hunting and abortion here, but only to compare how women and hunters fare under law when faced with protests of their activities. There were two possible interpretations of the Supreme Court decision in Bray v. Alexandria Women ’ s Health Clinic, 113 S. Ct. 753 (U.S. 1992): one was that a federal civil rights law could not be used to protect abortion clinics against protesters who illegally blocked access (Shatz 1993); the other was that the federal civil rights laws could be used in this way, provided the standard of proof was held high (Pines 1993). The scene changed drastically in 1994, when two physicians performing abortions were murdered by abortion foes: the Supreme Court held that the federal Racketeer-Influenced and Corrupt Organizations (RICO) Act could be used against antiabortion or pro-life groups that conspire to close down abortion clinics, National Organization for Women v. Scheidler 114 S. Ct. 798 (1994); and Congress passed broad legislation to protect abortion clinics, Freedom of Access to Clinic Entrances Act, 18 U.S.C.S. Sec. 248 (1994).
25. A homeless person "living in the shelter system" of Ann Arbor, as he described it, told me at the annual vegan food sampling of Washtenaw Citizens for Animal Rights (March 1993) that several persons who were vegetarians for religious reasons found there was not much they could eat there.
26. "US Censored News of Pilots ’ Pre-raid Porno Movies," The Reuter Library Report, 26 January 1991.
27. Elliott-Larsen Civil Rights Act, Article 1, Mich. Comp. Laws Ann. Sec. 37.2103 (West 1985).
13. The Hialeah case is another example of mixed alliances: The ACLU and various Christian and Jewish organizations sided with the Santeria Church of Lukumi Babalu Aye in support of animal sacrifices as religious expression. Predictably, many animal welfare and animal rights organizations sided with the City of Hialeah. The latter, as the Supreme Court noted, not only deems the killing of animals for hunting, fishing, and food as necessary, but did not even consider the use of live rabbits for training greyhounds as animal cruelty.
28. "Canada ’ s High Court Upholds Anti-pornography Law," The Atlanta Journal and Constitution, 28 February 1992, Foreign News section.
29. Lois Forer has documented, from her experience as a judge, that women, children, and the elderly are not treated equally in the courts. See Forer (1991).
30. Mich. Comp. Laws Ann. Sec. 300.262a (West Supp. 1992).
31. Mich. Comp. Laws Ann. Sec. 750.520L (West 1991).
32. For parallels in the objectification of women and animals, see Adams (1990).
33. The ACLU changed its position regarding the definition of sexual harassment. It no longer requires that the harassing behavior be directed toward a particular individual (Gailey 1993).
34. In Animal Legal Defense Fund v. Secretary of Agriculture, 813 F. Supp. 882 (D.D.C. 1993), the Animal Legal Defense Fund won its case against the USDA in the matter of the USDA ’ s failure to enforce requirements of exercise for dogs and environment enrichment for primates. A year later, this decision was overturned, Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720 (D.C. Cir. 1994). See "ALDF Forces USDA to Protect Animals in Labs," The Animals ’ Advocate, Spring 1993; and "Appeals Court Reverses Key Decisions," The Animals Advocate, Fall 1994.
35. Spain has now its first woman bullfighter (Hayley 1993).
36. Observation based on my ongoing monitoring of animal research at the University of Michigan from documents obtained through the Freedom of Information Act.
References
Adams, Carol J. 1990. The Sexual Politics of Meat . New York: Continuum.
Bass, Carole. 1992. Protesters Dodge Acquittal to Challenge Harassment Law. The Connecticut Law Tribune, 12 October.
Beeston, Richard. 1992. Serb learnt rape and murder, The Times (UK), 14 December.
Castaneda, Carol. 1992. Carelessness, Hunters Equal a Deadly Season. USA Today, 2 December, News section.
DePass, Darlene. 1992. Maryland Hunters Feed Venison to Poor. The Washington Times, 16 December, Part B.
Farnham, Alan. 1992. A Bang That ’ s Worth Ten Billion Bucks. Fortune, 9 March.
Fausto-Sterling, Anne. 1985. Myths of Gender . New York: Basic Books.
Forer, Lois. 1991. Unequal Protection . New York: Norton.
Furfaro, John, and Maury Josephson. 1992. Sexual Harassment. New York Law Journal, 4 September, Labor Relations section.
Gailey, Philip. 1993. ACLU Weakens Its Commitment to Free Speech. St. Petersburg Times, 11 April, Perspective section.
Goodrich, Lawrence. 1992. Florida Court Overturns Spiritual-Healing Case. The Christian Science Monitor, 6 July.
Giobbe, Evelina. 1990. Confronting the Liberal Lies about Prostitution. In Leidholdt and Raymond, 67 – 81.
Hazard, Holly. 1992. Downed Animals: Historic Bill in the Making. The Animals ’ Advocate, Winter, 2 – 3.
Hayley, J
ulia. 1993. Spain ’ s Only Woman Bullfighter. Reuters, 18 February.
Hentoff, Nat. 1992. Free Speech for Me But Not for Thee . New York: Harper Collins.
Holmstrom, David. 1992. Efforts to Protect Women from “ Stalkers ” Gain Momentum at State, Federal Levels. Christian Science Monitor, 22 December.
Humane Farming Association. 1994. October 1994 mailing of the Humane Farming Action Fund, legislative branch of the Humane Farming Association.
Husar, John. 1992. Protesters Try, Hunters Keep Cool. Chicago Tribune, 8 October, Sports section.
Kaminer, Wendy. 1992. Feminists Against the First Amendment. Atlantic Monthly, November.
Kheel, Marti. 1990. Ecofeminism and Deep Ecology: Reflections on Identity and Difference. In Reweaving the World, ed. Irene Diamond and Gloria Feman Orenstein. San Francisco: Sierra Club Books.
Landsberg, Michele. 1993. Supreme Court Porn Ruling Is Ignored. The Toronto Star, 14 December, D1.
Leidholdt, Dorchen, and Janice Raymond, eds. 1990. The Sexual Liberals and the Attack on Feminism . New York: Pergamon.
MacKinnon, Catherine. 1987. Feminism Unmodified . Cambridge: Harvard University Press.
— — — . Toward a Feminist Theory of the State . Cambridge: Harvard University Press.
— — — . 1990. Liberalism and the Death of Feminism. In Leidholdt and Raymond, 3 – 13.
Matsuda, Mari. 1989. Public Response to Racist Speech: Considering the Victim ’ s Story. Michigan Law Journal 87(8):2320 – 81.
Motavalli, Jim. 1994. Hunters ’ Free Speech. E, October, In Brief.
Mueller, Gene. 1992. Rightists Wrong to Disrupt Hunts. The Washington Times, 23 December, Part D.
Paglia, Camille. 1992. The Return of Carrie Nation: Feminists Catharine MacKinnon and Andrea Dworkin. Playboy, October.
Pines, Deborah. 1993. Leeway Is Seen in Rulings on Abortion Protests. New York Law Journal, 22 April.
Plevan, Bettina, and Seth Popper. 1992. An Expert Can Gauge Perceptions: Harassment. The National Law Journal, 9 November.
Roman, Nancy. 1992a. Ritual Sacrifice Poses Hazards, High Court Told. The Washington Times, 5 November, Part A.
— — — . 1992b. Harassment Headlines Help Muddy Definition of Crime. The Washington Post, 13 December, Part A.
Seelye, Katharine Q. 1994. Protecting the Targets of Protests: A Debate Now Shifts to Hunting. The New York Times, 11 June, Section 1.
Shatz, Steven F. 1993. Misconstruction of Reconstruction; Supreme Court Gives Operation Rescue a Green Light. Legal Times, 5 April, Points of View section.
Siegel, Barry. 1993. Fighting Words. Los Angeles Times, 28 March, Magazine section.
Sunstein, Cass R. 1993a. Pornography and the First Amendment. Seminar given at the University of Michigan Law School, 14 April 1993.
— — — . The Partial Constitution . Cambridge: Harvard University Press.
US Censored News of Pilots ’ Pre-raid Porno Movies. The Reuter Library Report, 26 January 1991.
Varchaver, Nicholas. 1992. Protecting Women from Themselves. The American Lawyer, September 1992.
6
Gary L Francione
Abortion and Animal Rights: Are They Comparable Issues?
Abortion is a terribly complicated legal and social issue, and so is the issue of animal rights. Indeed, these topics have accounted for a great deal of recent writing in the fields of moral philosophy and applied ethics, social theory, and feminist studies. Although some feminists who support the right to terminate pregnancy have voiced strong support for animal rights, many others have refused to commit themselves or, worse yet, have indicated hostility to animal rights because they believe that recognition of animal rights will be one step down the road toward recognition of fetal rights.
Similarly, although some animal rights advocates are staunch supporters of a woman ’ s right to choose to terminate her pregnancy, many animal rights advocates either are reluctant to express a view on abortion ( “ my issue is animal rights ” ) or, worse yet, are opposed to freedom of choice on the ground that if animal life should be protected, then the argument for fetal protection is even stronger.
The present stand-off between advocates of animal rights and supporters of the right to choose can be traced to the fact that opponents of choice claim that the arguments advanced by animal advocates apply equally to fetuses, and that failing to apply such arguments is simply irrational on the part of animal advocates. For example, Peter Singer argues that nonhumans, like humans, are sentient and, by virtue of that sentience alone, are entitled to have their interests treated equally in the utilitarian balancing process (Singer 1991). Anti-choice advocates claim that if sentience, in and of itself, is sufficient to establish moral consideration for nonhumans, then fetuses (at least some of whom are sentient) are entitled to similar moral consideration. Indeed, opponents of choice view the failure to apply animal protection views to fetuses as demonstrative of misanthropy on the part of animal rights advocates.
In this essay, I want to examine the two primary theories that have been articulated in the literature to advance the cause of animal protection. It is my view that although both theories are properly applied to issues involving nonhuman animals, they cannot automatically be applied to the abortion context without recognizing that there are very significant differences between these two moral situations. When a vivisector seeks to exploit a nonhuman in a biomedical experiment, the situation is much more analogous to one of child abuse, not abortion. The state can regulate vivisection — and child abuse — in a way that does not fundamentally intrude on the basic privacy rights of vivisectors or parents. The state cannot, however, regulate abortion in the absence of a patriarchal intrusion of the law into a woman ’ s body, and we generally do not tolerate that sort of bodily intrusion anywhere else in the law. 1
That is, even if we grant that the fetus is sentient (at least at some phases of its existence), or that a fetus is a rightholder in the sense that philosopher Tom Regan (1983) intends, we are still confronted by the question as to who is the appropriate moral agent to resolve any conflict between the primary rightholder (the woman) and the subservient rightholder (the fetus). 2 The only choices are to let the primary rightholder decide, or to relegate the responsibility to a legal system dominated by actors and ideologies that are inherently sexist. In the abortion context, there are no other choices, as there are when the state attempts to regulate animal abuse or the abuse of minor children.
In this essay, I examine briefly the consequentialist and deontological views advanced by animal advocates 3 and argue that neither framework really can address the moral issue of abortion, because abortion presents a unique moral issue. That is, there is a fundamental difference between the abortion issue and the other moral contexts in which we generally seek to employ these frameworks. This difference does not mean that our discourse about the morality of abortion ends; it means only that our reliance on moral theories of animal protection do not commit us to reject abortion on the same grounds.
I should state at the outset that I anticipate that many feminists will object to my focus on the welfarist or rights structure as being itself patriarchal, both as a matter of history and theory. For example, many feminist theorists reject animal rights because a right is a male-created concept that reflects the hierarchical thinking so typical of the male mind (Glendon 1991). Although I embrace such alternatives as the ethics of care as expressions of the highest form of moral thought, I am concerned that we not reject traditional moral thought on the matter for two reasons.
Neither Bentham nor Singer argued that animals (or humans) were entitled to moral rights as a matter of consequential theory;rather, both philosophers maintained that because nonhumans were, like humans, sentient, both types of beings should have their interests considered in determining what was the best moral outcome (greatest aggregate pleasure or preference-satisfaction) for the largest number. Humans and nonhumans alike were to be counted as “ beings ” for purposes of the recog
nition and respect of these interests. The approach posited by Bentham/Singer is quite consistent with the philosophical doctrine of animal welfare — that is, that humans may justifiably exploit animals as long as human or animal suffering is considered as part of the utilitarian calculus. 4
First, it is my view that the source of a moral concept tells us little, if anything, about the sexist or nonsexist status of that concept. Virtually every intellectual concept used in our culture was formulated originally by white men, who held (and to a very considerable degree still hold) exclusive control over education and publication. That origin, however, does not mean that every concept is itself patriarchal in some way apart from its admittedly patriarchal origin. The concept of rights can be used in a patriarchal way to oppress; but then, so can any other moral concept that seeks political expression, including the ethic of care.
Second, and more important, however, is my view that in a diverse and highly populous political system, there must be some mechanism that can be used to resolve the inevitable conflicts that will arise among individuals, irrespective of whether the society in question is matriarchal or patriarchal. Many feminists argue that the ethics of care should replace what they view as the patriarchal notion of rights; that is, that a collective notion of concern, not based on competition and conflict, is preferable to rights theory. In many ways, this argument is somewhat similar (albeit different in material respects) to Marx ’ s critique of rights. Marx believed that the concept of rights was bourgeois because it reinforced the notion of people as individuals in a society that should (and, if historical materialism is true, will) regard itself collectively.
One day, if we ever achieve a society without sexism, racism, homophobia, and economic injustice, perhaps the whole concept of the individual will, like Marx ’ s state, “ wither away ” and be an unnecessary component of moral theory. For the foreseeable future, however, individual conflicts are likely to arise in any society, and there must be some set of principles that may be used to evaluate claims and to resolve conflicts. Even in a matriarchal society that employs an ethic of care, there will still be notions of individuality that delimit intrusions on one ’ s body by men or women. The concept of the individual is here to stay; it may find itself conceptually melted into a more communitarian society in which many individualistic values are traded away for the sake of the whole, but there will still be some individual left — however meager — whose individuality will in some sense be defined by laws that limit personal intrusion.
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