How to Qualify for Protection against Violence
by Sherry F. Colb
When we talk about rights--who has them and who does not--we often refer to a broad range of entitlements, some of which are quite basic and others relatively limited in their application. In this post, I want to talk about the most basic of rights that anyone who could be considered "someone" ought to have, regardless of their intelligence, their long-term memory, their status as a loner versus a member of a community, and other characteristics that one might require before bestowing some rights. I refer here to the right to protection against the violence of others, with violence referring to assault and battery, torture, unnecessary incarceration, and murder. Even if you are not terribly bright, have few or no friends, never earn any taxable income, and delight in your illiteracy, you nonetheless have a right not to be subjected to violence of the sort enumerated in the last sentence.
Indeed, if anyone suggested that it is acceptable to assault you, to torture you, to kidnap you and hold you captive, or to murder you because you are less intelligent or capable than your rights-bearing neighbors, most of us would condemn the person making the suggestion as a bigot lacking empathy and a conscience. If anything, most moral individuals would regard cruelty toward a less intelligent person as especially heinous and disgraceful. It is not simply that less intelligent people come in under the wire and receive protections that the rest of us have; it is that we understand intelligence and other sorts of capacities as morally irrelevant to a right against violence. People of lesser intellect are at least as entitled to a right against violence as are geniuses. While we might allocate educational resources in a fashion that takes account of intelligence (or multiple intelligences), the basic right to be free from violence properly has nothing to do with I.Q. or any other measure of intelligence or skill.
Why am I dwelling on the moral irrelevance of intelligence? I am doing so because I want to contrast two cases that come out in opposite ways and whose divergence gives us a snapshot of how some people think about the basic entitlement to be free of others' violent attacks.
Let us begin with the leaked Samuel Alito (SA) opinion in Dobbs v. Mississippi Women's Health Organization. We learn there that in order to qualify for a right against "violence," one only need consist of a single cell, an egg cell that a sperm cell has just penetrated. Once a zygote exists inside a woman's body, the SA opinion (which apparently reflects the views of five religious fanatics on the Supreme Court) says that the people's elected representatives (elected under conditions of political and racial gerrymandering) can pass laws forcing the woman in whose body the zygote exists to build that cell into a child over the course of nine months of nausea, vomiting, pain, sleeplessness, psychological distress, and more. Why? Because some people think (because of their religion) that a zygote is a baby, despite the fact that a zygote is not a baby under any sensible definition. SA thus imposes upon all pregnant women (and trans men and nonbinary individuals) the affirmative duty of protecting a single cell against the violence of extracting the cell from her body. I would not call the removal of undifferentiated embryonic tissue from one's body "violence," but SA apparently would. The single cell thus has a right against "violence," and it is the sole job of the person on whom the cell affixes itself in parasitic fashion to protect it against herself.
I said earlier that the right to protection against violence is "basic" and should not require any special capabilities. Am I being hypocritical by implying and now stating explicitly that extending the right against violence to a zygote is madness? No.
I never meant to suggest that the right against violence belongs to everything around. If you have a blueberry bush, and you want to pick berries from that bush or harvest carrots from your yard, we would not try to stop you on the ground that the blueberry or the carrot is entitled to a right against violence. Most of us (with the possible exception of Jains) would reject the notion that picking blueberries or carrots is violence at all. In order to qualify for a logically sensible right against violence, one must have the capacity to experience violence in a subjective sense. You have that capacity, so if someone punches you in the stomach, the punch will have a deleterious impact on your wellbeing. If you eat blueberries or carrots from your yard, no one--despite ridiculous claims to the contrary--experiences a subjective drop in their wellbeing (except perhaps a co-owner of the land on which the food has grown).
You therefore should not have--and do not have--an obligation to the blueberry bush or the blueberries or the carrots to leave them alone. They do not fear you, they do not suffer when you eat them, and there is nothing else to create obligations that run from you to the food. Another way of making this point is to say that blueberries and carrots are not sentient beings. We have no evidence to support a contrary notion. Only sentient beings have interests worthy of protection. One can, of course, speak as if blueberries and carrots have interests, by saying, for instance, that "blueberries like when you water the blueberry bush." But we know what we are actually saying. We are saying that the blueberry bush that we treat as our resource for food will blossom best for us if we water the bush.
One might similarly say that yeast likes it when you mix it with warm water and sugar. Yet no one (I hope) thinks that yeast is sentient, that yeast is entitled to rights, that yeast has interests, or that we violate our obligations to yeast by using it to make dough rise. Because a fertilized human egg has no more interests than yeast, it is absurd to extend rights or the possibility of rights--as SA and his colleagues are effectively doing--to a fertilized egg. Because of their religious commitments (for which the not-at-all-devout Donald J. Trump selected the fanatical jurists), the Court is about to allow something with the moral weight of yeast or a blueberry to have rights that impose directly on an actual sentient woman who wants to empty her uterus of unwanted products of conception.
Even as the Court is poised to pursue this madness, the New York Court of Appeals (the state's highest court) just held that an Asian elephant whom the Bronx Zoo has held in prison for almost her entire life has no right against the violence of solitary confinement, even though elephants ordinarily live in matriarchal societies, are highly social, and walk distances of hundreds of miles rather than the one acre in which people can gawk at them and watch what depressed and helpless creatures look like in a cage.
The majority opinion in the case of Happy the elephant answered the question about whether Happy might be entitled to relief under the common law writ of habeas corpus by saying no because Happy is not a human and only humans have the entitlements protected by habeas corpus. To the question "what qualities must an individual have to be eligible for release from solitary confinement as a tourist exhibit?," the court effectively tells us "the individual must be a member of the species Homo Sapiens Sapiens." Human DNA is an absolute prerequisite to exiting the exploitative injustice of a cage in a zoo. Happy the elephant could in fact be identical in all respects to humans but simply lack human DNA, and that "difference" would disqualify her from protection against the violence to which the Bronx Zoo currently subjects her.
I very much appreciated the two dissenting opinions by Judge Wilson and Judge Rivera, respectively. Both of them exhibited their recognition of the fact that habeas corpus has long been a vehicle for fighting injustice in a piecemeal fashion when the law has yet to recognize the particular injustice. Readers of the dissents learned, if they did not already know, that until relatively recently, women and children lacked a separate legal existence from their husbands/fathers and therefore had no recourse when the man of the house inflicted violence on his subjects. In that legal environment, a few women and children were able to escape their tormentors through habeas corpus, and they did so before the law more broadly moved away from the "women and children are a man's most valuable property" outrage of the time. Likewise, a few African Americans were able to use habeas corpus to escape the moral atrocity of slavery at a time when the law more broadly protected slaveholders and not enslaved persons. The idea here is that even though the law does not generally protect animals from most of the violence that humans inflict upon them, habeas corpus could have provided a way of identifying and rectifying injustice in an age that has yet to truly appreciate the evil of animal exploitation.
One thing that I found a little frustrating about the litigation (full disclosure: I participated on one of the amicus briefs) and about the dissents as well was the species lines that remained important to them. One finds a long list of qualities in the documents that the attorneys and judges seem to regard as relevant to having rights of the sort that Happy was seeking. Among these supposed qualities is "autonomy," defined in the papers as the ability to make choices rather than just carry out reflexive motion. The implication is that those who lack the list of qualities (which includes great intelligence) would not be eligible for the right in question. I know that the lead lawyers for Happy would say "no, these qualities are sufficient conditions for rights but not necessary conditions," and that is an accurate description of what they say in their papers, but to identify particular characteristics as a sufficient basis for rights is necessarily to imply that those who lack those characteristics are at least, on the face of it, less entitled to rights.
In reality, the animals we humans attack and torture and murder all have "autonomy," in the sense described--they have preferences and reward centers in their brains and do not simply move by reflex. But the long list of characteristics: (a) implies that the other "lesser" animals lack relevant characteristics and therefore might not be eligible for rights; and (b) construes the injustice of what we do to billions of animals in a narrow way that allows the debauchery of the slaughterhouse (and of the people who pay for its operation by purchasing slaughterhouse fruit) to continue without troubling people's conscience. I cannot help but recall in this vein the woman who many years ago approached me to sign her petition asking the courts to impose a harsh penalty on Michael Vick for dog fighting and for the extreme cruelty of that enterprise. I asked her whether she eats cheeseburgers, and she smiled and said "yes, they're delicious," seemingly unaware of the cognitive dissonance she ought to have been experiencing. The educational project of awakening people's conscience to the unambiguous evil that is the standard American diet is going to be difficult if we weave societal prejudices about who should have rights into the narrative that we bring to courts and to the public.
I have here chosen to juxtapose the Supreme Court's willingness to allow single-cell non-sentient tissue to occupy a woman's body against her will with the long list of qualifications that even Happy's supporters seem to think are relevant to a right against violence. The juxtaposition reflects human supremacy in all its glory. Unadorned human DNA not only gets protection against violence but gets to block its own eviction from a real person's body for nine months. And an elephant who is sentient and suffers and would, in nature, be walking hundreds of miles and spending time with conspecifics must show how special she is, thereby reassuring the humans that they can continue hurting animals even if they admit her to the class of honorary humans.
Rather than showing compassion and ethics toward someone who is suffering because a zoo keeps her in solitary confinement, we instead focus on how to keep humans at the "top of the pecking order." Maybe both abortion and animal rights cases could benefit from the realization that a fixation on human supremacy is only a few steps away from similar fixations on white supremacy and male supremacy that led to the grotesque violence euphemistically called discipline and moderate correction. Maybe we could begin to focus instead on sentience, the ability to suffer or otherwise have subjective experiences. Sentience and not intelligence is the true measure for who ought to be eligible for rights against violence. We would know that if we looked only a few pages back in our history to how we once treated "idiots," "imbeciles," and "morons."