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ABORTION AND ANIMAL RIGHTS SHERRY F. COLB AND MICHAEL C. DORF BEATING HEARTS CRITICAL PERSPECTIVES ON ANIMALS: THEORY, CULTURE, SCIENCE, AND LAW CRITICAL PERSPECTIVES ON ANIMALS: THEORY, CULTURE, SCIENCE, AND LAW Series Editors: Gary L. Francione and Gary Steiner The emerging interdisciplinary field of animal studies seeks to shed light on the nature of animal experience and the moral status of animals in ways that overcome the limitations of traditional approaches. Recent work on animals has been characterized by an increasing recognition of the importance of crossing disciplinary boundaries and exploring the affini- ties as well as the differences among the approaches of fields such as philosophy, law, sociology, political theory, ethology, and literary studies to questions pertaining to animals. This recognition has brought with it an openness to rethinking the very terms of critical inquiry and the traditional assumptions about human being and its relationship to the animal world. The books published in this series seek to contribute to con- temporary reflections on the basic terms and methods of criti- cal inquiry by focusing on fundamental questions arising out of the relationships and confrontations between humans and nonhuman animals, and ultimately to enrich our appreciation of the nature and ethical significance of nonhuman animals by providing a forum for the interdisciplinary exploration of questions and problems that have traditionally been confined within narrowly circumscribed disciplinary boundaries. The Animal Rights Debate: Abolition or Regulation?, Gary L. Francione and Robert Garner Animal Rights Without Liberation: Applied Ethics and Human Obligations, Alasdair Cochrane Experiencing Animal Minds: An Anthology of Animal-Human Encounters, edited by Julie A. Smith and Robert W. Mitchell Animalia Americana: Animal Representations and Biopolitical Subjectivity, Colleen Glenney Boggs Animal Oppression and Human Violence: Domesecration, Capi- talism, and Global Conflict, David A. Nibert Animals and the Limits of Postmodernism, Gary Steiner Being Animal: Beasts and Boundaries in Nature Ethics, Anna L. Peterson Flight Ways: Life and Loss at the Edge of Extinction, Thom van Dooren BEATING HEARTS ABORTION AND ANIMAL RIGHTS Sherry F. Colb and Michael C. Dorf Columbia University Press New York Columbia University Press Publishers Since 1893 New York Chichester, West Sussex cup.columbia.edu Copyright © 2016 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data Colb, Sherry F., 1966– author. Beating hearts : abortion and animal rights / Sherry F. Cobb and Michael C. Dorf. pages cm. — (Critical perspectives on animals : theory, culture, science, and law) Includes bibliographical references and index. ISBN 978-0-231-17514-2 (cloth : alk. paper) — ISBN 978-0-231-54095-7 (ebook) 1. Law—Moral and ethical aspects. 2. Animal welfare—Law and legislation. 3. Animal rights movement. 4. Abortion—Law and legislation. 5. Pro-choice movement. I. Dorf, Michael C., author. II. Title. K247.6.C65 2016 179'.3—dc23 2015026814 Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 Cover design: Mary Ann Smith References to websites (URLs) were accurate at the time of writing. Neither the authors nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. CONTENTS Acknowledgments vii Introduction: Two Movements, One Set of Issues 1 PART I: ETHICS 1. Sentience or Species? 13 2. The Necessity Defense 45 3. Reproductive Servitude 76 4. Death Versus Suffering 96 PART II: MOVEMENTS 5. Strategy 120 6. Graphic Images 149 7. Violence 165 Conclusion 183 Notes 193 Index 237 ACKNOWLEDGMENTS A great many people played important roles in our thinking about the issues addressed in this book. Gary Francione’s influ- ence on our views about nonhuman animals and on our lives has been enormous. As Sherry’s colleague at Rutgers School of Law– Newark for thirteen years, he was a shining example of how we could live according to our values. We regret that it took us as long as it did to follow his example, but that was our failing, not his. In addition, he and Gary Steiner were extremely generous in urging us to submit our book for publication in their wonderful series. We are honored to be included. Each of us has been thinking and writing about reproductive rights questions for a long time, at least since law school in the late 1980s. Our respective mentors—especially Nomi Stolzenberg and Laurence Tribe—helped us develop our views on these questions and offered us scholarly opportunities for which we will always be grateful. More recently, a teaching and scholarly collaboration between Michael and Sidney Tarrow gave us a grounding in the dynamics of social movements, discussed in part 2. viii Acknowledgments We transitioned from vegetarian to vegan in 2006, and we soon discovered an incredibly supportive community. Much of what we know and think about animal rights comes from extended conversa- tions with our friends in and around the movement, including (in addition to those already mentioned) Jonathan Balcombe, Carol Barnett, Ted Barnett, Harold Brown, Taimie Bryant, Neil Buchanan, T. Colin Campbell, Jim Corcoran, Anne Dinshah, George Eisman, JoAnn Farb, Joe Farb, Lewis Freedman, Amber Gilewski, Stephen Glass, Ariel Gold, Amie Hamlin, Lara Heimann, Mark Heimann, Julie Hilden, Robert Hockett, Keith Langer-Liblick, Stephanie Langer- Liblick, James LaVeck, Bob Linden, Eric Lindstrom, Jen Majka, Jeffrey Moussaief Masson, Milton Mills, Victoria Moran, Ducson Nguyen, Alan Scheller-Wolf, Terri Scheller-Wolf, Mary Schuelke, Harold Schultz, Linnaea Scott, Paul Scott, Rae Sikora, Jasmin Singer, Jenny Stein, Mariann Sullivan, Evan Tasch, and Priscilla Timberlake. We are also very grateful to Cornell Law School for supporting our work and for providing vegan options at just about every event at which food is served. For most of our time at Cornell thus far, Stewart Schwab was the dean, and we very much appreciate his leadership in this and so many other respects. Eduardo Peñalver, our new dean, has also been enormously supportive. Speaking of Cornell, we would also like to thank the students and the guest speakers in Sherry’s animal rights seminars, whose challenges and insights are reflected in these pages. Special thanks to our tireless and thorough research assistants, Jesse London, Justin Mungai Ndichu, Geoffrey Parker, and Matthew Tymann, to Ernestine Da Silva and Gina Jackson for their help in formatting the manuscript, and to Estalita Slivosky for preparing the index. Eduardo Peñalver, Sidney Tarrow, Manès Weisskircher, Alan Scheller-Wolf, and two reviewers for Columbia University Press read all or substantial parts of the manuscript and gave us extremely helpful feedback. We are also grateful to participants in workshops and conferences at Cornell University, Princeton University, Rut- gers School of Law–Newark, UCLA School of Law, and the annual Vegetarian Summerfest at University of Pittsburgh at Johnstown. Finally, we extend special thanks also to our wonderful vegan daughters, Amelia Colbdorf and Meena Colbdorf, for making our values their values; we do not take that for granted. BEATING HEARTS Introduction TWO MOVEMENTS, ONE SET OF ISSUES How can someone who condemns practices like animal farming, hunting, and experimentation favor a right to abortion? Abortion, after all, is the deliberate taking of a human life, or at least of a potential human life. Yet many people in the animal rights move- ment do support legal abortion. Do animal rights activists really care more about the well-being of nonhuman animals than they do about tiny humans? Conversely, how can people who would ban the destruction of even a one-celled human zygote—an entity as simple as an amoeba and possessing no more consciousness than a fingernail or a strand of hair—eat and use the flesh, skin, and secretions of feeling crea- tures like cows, pigs, and chickens, whose lives were filled with unspeakable suffering, ended only by horrific deaths? Do pro-life activists really care more about a human cell than about the suf- fering of fully sentient animals whose evolutionary history, brain chemistry, and emotional repertoire closely resemble our own? It is of course possible to favor both animal rights and the rights of embryos and fetuses, and some people are in fact active in both movements.1 Yet for the most part the animal rights movement and 2 Introduction the pro-life movement do not overlap. Indeed, in public debate the issues of abortion and animal rights are rarely discussed together, except perhaps when someone is trying to score rhetorical points through mockery: You favor rights for chickens but not human babies? Your position is grotesque!2 Despite the rhetorical gap between most activists, abortion and animal rights raise closely intertwined questions. Both the pro-life movement and the animal rights movement challenge conventional views about the moral relevance of membership in the human spe- cies: people in the pro-life movement regard humanity as a suffi- cient condition for moral rights; people in the animal rights move- ment contend that humanity is not a necessary condition for moral rights. Although the question of whether humanity is a sufficient condition for moral rights is logically distinct from the question of whether it is