The Creatures Formerly Known as Animals

Posted on April 17, 2005

Congressional critics had a field day a few years
ago, when the leader of the Western world was caught quibbling over the
definition of "is." But it turns out President Clinton had nothing on
Congress, which recently decreed that birds, rats and mice are not

Without discussion or debate, Congress wrote into federal law the
highly debatable position of the U.S. Agriculture Department, which for
decades has insisted that these small fauna — the subjects of 95
percent of all research experiments conducted in the U.S. — fail to
qualify for protection under the Animal Welfare Act.

And since the Act is the only U.S. law that promised even minimal
protection for the millions of animals used annually in research, the
welfare of these "ex-animals" is in the hands of the biomedical
industry, which is largely free to treat — or mistreat — them as it

"If you eliminate 95 percent of the animals out there in labs, then you
eliminate 95 percent of the inspections you would otherwise have to do.
It’s a way to save money and avoid doing your job," says ALDF founder and general counsel Joyce Tischler. "As originally written, AWA didn’t exempt
rats, mice and birds. USDA decided to do that."

In 1990, ALDF decided to do something about it, petitioning the USDA to
amend its regulations to include birds, rats and mice. When the agency
refused, ALDF sued. In 1992, a district court judge ruled in ALDF’s
favor, finding that the USDA was in violation of the Animal Welfare
Act. But a U.S. Court of Appeals ruling reversed that decision in 1994
on the grounds that ALDF’s plaintiffs lacked standing.

A few years later, the Alternatives Research & Development
Foundation revived the challenge with a new plaintiff, a psychology
student who had personally witnessed laboratory abuses. With ALDF’s
assistance, including pleadings from the earlier court battle, ARDF
forced the USDA to concede. At long last, the federal agency agreed to
amend its regulations and give birds, rats and mice the AWA protection
they deserved.

But before the new rules could go into effect — and at the behest of
the powerful biomedical research industry — Sen. Jesse Helms (R-N.C.)
stepped in. His amendment to the 2002 Farm Bill aimed to elevate the
birds/rats/mice exemption from departmental policy to federal law, and
trump the USDA’s reluctant movement toward finally enforcing the Animal
Welfare Act.

The ploy worked. When the massive Farm Bill was signed by
President Bush in May, the never-debated Helms amendment became U.S.
law — and the Animal Welfare Act was dealt a crippling blow. The defeat
left some animal advocates asking hard questions about how the
movement’s energies are best spent.

"It makes me wary of what a sinkhole of effort working on legislation
can be," says David Favre, a professor at Michigan State University’s
Detroit College of Law and an ALDF board member. "I think we can get
more done through the courts. There, it’s more of a rational,
intellectual argument as opposed to down and dirty politics."

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