Congress delivers 9/11 to the Animal Welfare Act

From ANIMAL PEOPLE, July/August, 2002:

Monday, May 13, 2002, was a date which should live in
infamy among American animal advocates. On that day, U.S.
president George W. Bush signed into law a new federal Farm Bill
which erased Animal Welfare Act protection of rats, mice, and birds
used in laboratories.
Rats, mice, and birds constitute more than 95% of all of
the warmblooded animals who suffer and die in U.S. biomedical
research, testing, and teaching: about 30 million per year.
Entrusted with enforcing the Animal Welfare Act, the U.S.
Department of Agriculture in truth never actually did protect rats,
mice, and birds as the law directed. Yet for 32 years the Animal
Welfare Act did say that the USDA Animal and Plant Health Inspection
Service was supposed to protect rats, mice, and birds.

Instead of obeying the law, the USDA evaded the clearly
stated intent of Congress by excluding rats, mice, and birds from
the regulatory definition of “animal.” Animal welfare groups and
concerned individuals repeatedly filed lawsuits against the
exclusion, even winning some lower court verdicts, but the USDA and
the research industry repeatedly obtained appellate rulings that the
plaintiffs had no legal standing to bring their cases–which meant
that those cases were never decided on their merits.
This obstacle was overturned in September 1998 by the U.S.
Court of Appeals, in a verdict later upheld without comment by the
U.S. Supreme Court.
Two years after that, the USDA finally felt obliged to agree
to enforce the Animal Welfare Act as written, to settle a case
brought by the Alternatives Research and Development Foundation, a
subsidiary of the American Anti-Vivisection Society.
Unfortunately, even if the USDA sincerely meant to protect
rats, mice, and birds at long last, which may be questioned in
view of three decades of dereliction of duty, the research industry
had no intention of allowing even the most rudimentary form of humane
oversight of most of their activities.
First, through a backdoor budget maneuver, then-Senate
Appropriations Subcommittee on Agriculture chair Thad Cochran
(R-Mississippi), also a notorious defender of cockfighting,
prohibited the USDA from spending any money to amend the Animal
Welfare Act enforcement regulations.
Then, just over one year later, Senator Jesse Helms
(R-North Carolina) introduced the permanent exclusion of rats, mice,
and birds, by means of a late-hour Farm Bill amendment that was
never reviewed in committee and never debated at any level, but
which won hasty approval on a voice vote.
Even though the House of Representatives had never discussed
such an amendment, the Helms amendment was incorporated into the
final reconciled version of the Farm Bill, and was ratified by both
the House and the Senate–whose members may have been mostly unaware
of it, not least because leading animal protection groups did almost
nothing to oppose it, even though Helms was expected to introduce
his amendment right from the beginning of the current Congress.
Then the biggest groups predictably did even less to inform
donors of their failure. The Humane Society of the U.S., for
example, responded to the passage of the 2002 Farm Bill with a
self-congratulatory 17-paragraph press release that focused on
securing an amendment that reinforces 1976 legislation against the
interstate transport of fighting cocks. A few fleeting words noted
that other pro-animal amendments to the Farm Bill were passed by
either the Senate or the House but were excluded from the final
draft. The Helms amendment was not even mentioned.
Neither was the Helms amendment mentioned in any national
animal advocacy group membership magazine or newsletter reaching us
since May 13. Only a handful of groups mentioned it in electronic
Considering that the Animal Welfare Act provides the
framework for almost all federal protection of animals other than
wildlife, the silence–especially for lab animals–was as if the
World Trade Center was demolished and nobody noticed. This was the
single most crushing political defeat in the history of the animal
rights and animal welfare movements, turning the clock back with a
single rap of a Senate gavel.
The 1966 passage of the original Laboratory Animal Welfare
Act, the 1970 expansion of that act into the Animal Welfare Act of
today, the 1985 amendments to require attention to the psychological
well-being of dogs and nonhuman primates, and the 1990 Pet Theft Act
amendment were the four most important legislative accomplishments
ever on behalf of U.S. lab animals.
Among them, the biggest gain by far was the 1970
Congressional recognition that all warmblooded animals are sentient
beings, capable of suffering and worthy of protection. The 1985 and
1990 amendments on behalf of dogs, nonhuman primates, and stolen
pets who might be sold to laboratories applied only to species that
most Americans consider cute and cuddly, but the 1970 language
applied–in theory–even to the animals who tend to be most
thoughtlessly mistreated.
That is undoubtedly part of why it was repealed so easily.
The National Association for Biomedical Research noted that
the 30 million rats and mice used in U.S. labs are far fewer than the
170 million who are bred each year to be fed to pet snakes. And even
170 million is paltry beside the 10 billion chickens, turkeys,
ducks, and geese bred and killed each year by the U.S. poultry
industry, typically under appalling conditions.

Shelters fail to set example

Weak as the standards required by the Animal Welfare Act are
compared to the humane ideal, the act does set a standard for
scientists which is higher than any other animal handlers have ever
been required to meet–including humane societies.
As ANIMAL PEOPLE has often pointed out, dogs do not go
kennel-crazy from being in a shelter too long. Rather, they go
kennel-crazy because standard cement-floored, tin-roofed chain link
dog runs deprive dogs of compatible companions, adequate sunshine,
room to run, a place to dig, and security from being stared at and
barked at by menacing strange dogs. Cats do not go cage-crazy just
from being in a shelter, but rather from being continually
surrounded by the din of barking dogs, with nowhere to climb to feel
safe. The typical animal shelter, unfortunately, could not have
been designed to drive normal animals insane more effectively if it
had been assembled by mad scientists as a psychological torture
But the 1970 Animal Welfare Act language was adopted by
Congress before there was an animal rights movement as such, before
the major animal-use industries were organized in opposition to
establishment of humane standards, and before the humane community
had even begun to seriously address pet overpopulation and the
treatment and disposal of homeless dogs and cats.
No one even considered in 1970 that legislation should be
drafted to protect the well-being of the 115 dogs and cats per 1,000
Americans who were killed each year in shelters, typically by means
of decompression or gas, within 24 hours of arrival.
Under the Laboratory Animal Welfare Act of 1966, dogs and
cats who were sold for lab use had to be held for at least five days
first. This gave them by far the best chance of being rehomed before
meeting a miserable end.
Today the shelter killing toll is down to 16.8 dogs and cats
per 1,000 Americans. The last decompression chambers used to kill
homeless animals in the U.S. are believed to have been scrapped in
1985. Gas chambers too are on their way out. The 300-odd animal
dealers who “bunched” stray dogs and cats from shelters for sale to
laboratories as of 1970 have dwindled down to just 27.
Though many U.S. shelters remain overcrowded and overwhelmed,
the sheltering community collectively has enough cage space, at
last, to guarantee all dogs and cats at least a five-day holding
period if the necessary cooperative adoption promotion and fostering
arrangements could be made.
Yet the Humane Society of the U.S. has for several years led
a series of legislative efforts in California to erase the 1998
Hayden Act requirement that shelters must hold all healthy dogs and
cats for at least five working days.
Much of the sheltering community has essentially the same
objection to the Hayden Act that the research community had to
protecting rats, mice, and birds under the Animal Welfare Act: it
would cost too much money and be too much work.

Fundraising dictates agenda

The same attitude pervades animal protection campaign strategy.
In 1970, along with nominally protecting all warmblooded
animals used in labs, Congress privatized the U.S. Postal Service,
authorizing the introduction of bulk mail presort discounts, thereby
creating the direct mail fundraising industry.
“We discovered you could create programs by creating them in
the mail,” San Francisco direct mail copywriter Jeffrey Gillenkirk
admitted to Sacramento Bee reporter Tom Knudsen in 2001. “Somebody
would put up $25,000 or $30,000, and you would see whether sea
otters would sell. You would see whether rainforests would sell.
You would try marshlands, wetlands, all kinds of stuff. And if you
got a response that would allow you to continue–a 1% or 2%
response–you could create a new program.”
Campaigns have always been driven by donor support, but now
more than ever, major organizations choose their campaigns based on
donor response to direct mailings, and invest in direct mail based
mostly on what has worked in past mailings.
The major issue driving passage of the 1966 Laboratory Animal
Welfare Act, 1970 Animal Welfare Act, and 1990 Pet Theft Act was
public fear that missing pets might become subjects of vivisection.
Public concern about dogs also drove passage of the 1985 amendments
to require attention to the psychological well-being of dogs and
nonhuman primates. The sum of all dogs and cats verifiably stolen
for laboratory use in the U.S. since 1990 is under 750, more than
half of them ex-racing greyhounds who were never anyone’s pet. Yet
pet theft for lab use appears to have been the topic of more
electronic activist alerts, web sites, protests, and especially
direct mailings during the past few months than the exclusion of 30
million rats, mice, and birds per year from any Animal Welfare Act
protection. Dogs bring donations; rats, mice, and birds do not.
The worst aspect of the Congressional exclusion of rats,
mice, and birds from coverage by the Animal Welfare Act is that
pro-animal legislation as sweeping as the 1970 Animal Welfare Act
could not be passed today. Congressional restoration of coverage of
rats, mice, and birds is not to be expected in the near future, if
This is partly because animal-use industries are now
mobilized to thwart any attempt to require them to do anything to
ensure even minimal attention to animal well-being, and partly
because allowing direct mail fundraising appeals to set campaign
priorities has reduced to the vanishing point any chance that
unpopular species will ever become more than just accidental
beneficiaries of big-group advocacy.

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