Legislators, judges and lawyers do some silly things with words. Infamously, they argued about what the word “is” means during the Clinton-Lewinsky era. They tell us a corporation is a person. And they tell us mice, rats and birds are not animals. These semantic gymnastics are not just fodder for jokes, they have some very serious implications, including for the well-being of millions of creatures.
The Animal Welfare Act was first passed in 1966 to protect animals in a variety of contexts, including transportation of animals across state lines and their use in research facilities.
Originally, the AWA applied to “live dogs, cats, monkeys (nonhuman primate mammals), guinea pigs, hamsters and rabbits.” In 1970, it was amended to include “any ... warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, (or) experimentation.”
In 1971, the U.S. Department of Agriculture established its own regulations to enforce the Animal Welfare Act, and, remarkably, decided that mice, rats and birds were completely outside the legislation. In other words “warm-blooded animal” did not mean a mouse, a rat or a bird.
In the late 1990s, in the course of hard-fought litigation, the USDA conceded that its regulations were inconsistent with the law and agreed to amend them. In the interim, then-Sen. Jesse Helms, R-N.C., slipped an amendment into the 2002 Farm Bill that put the USDA’s exception for mice, rats and birds right into the AWA itself, where it remains today. The Helms amendment has been criticized as pulling a procedural fast one on Congress but stays with us nonetheless.
Ninety-five percent of the animals used in scientific research are mice, rats or birds. Conservatively, that means several million, perhaps 20 million, mice, rats and birds are used in experimentation in the United States each year. Of course, this is difficult to pin down because these animals are outside any AWA or USDA reporting requirements. This might explain where lobbying pressure came from to persuade the USDA and Helms to exempt these creatures from the act.act
However, the pressure may not have come from within the research industry itself. One of the requirements of the AWA is that each research institution establishes an Institutional Animal Care and Use Committee or IACUC. When polled, 73.3 percent of IACUC members said rats and mice should be covered by the AWA and 69 percent believed pigeons should be covered. Animal researchers in the American Psychological Association showed 72.8 percent support of protection for rats and mice and 72.2 percent for birds.
The American Association for Laboratory Animal Sciences supports extension of the AWA not only to rats, mice and birds, but to all vertebrate animals, including farm animals, reptiles and fish. When those in the trenches overwhelmingly support added protections for mice, rats, birds and other animals, it seems unlikely that the industry would suffer from a change in the law or vigorously oppose it in the halls of Congress. But clearly someone has been.
This could be a mostly semantic issue. According to a white paper by the Animal Legal Defense Fund, many legitimate research institutions already comply with or exceed the AWA’s sadly minimal standards of care. However, the same paper also notes there are likely labs out there that do not, and certainly many that enjoy the anonymity of having no accountability to the USDA. And, of course, where abuses are found, there may be little or no recourse or enforcement over these facilities if rats, mice or birds at issue. Moreover, there are those of us who are simply irritated and discomfited by glaring irrationality in legislation that can have no basis other than the influence of special interests and is not even supported by the industry directly affected.
At the end of the last congressional session, Rep. Gerald Connolly, D-Va, introduced H.R. 6693, co-sponsored by Rep. Sam Farr, D-Calif., which simply amends the language of the AWA to add rats, mice and birds back under the umbrella of “warm-blooded mammal” protected by the act. Despite support even within major animal research groups, the bill was instantaneously referred to the House Agricultural Committee at the end of a session facing a fiscal cliff, an effective form of euthanasia (according to www.govtrack.us, the status of H.R. 6693 is reported as “Died (Referred to Committee),” a succinct epitaph). Perhaps this bill or another like it will re-emerge, but it appears to have powerful opponents. For whom some animals are just more equal than others.
Kate Burke is an attorney focusing on animal law in Durango who can be reached at (970) 385-7409 and firstname.lastname@example.org.