On Wednesday, New York Supreme Court Judge Barbara Jaffe rejected a claim that two chimpanzees in a New York research laboratory have a right to bodily liberty. The Nonhuman Rights Project had filed a petition for the two chimps, Hercules and Leo, for a writ of habeas corpus freeing them from unlawful imprisonment. In denying the petition, Jaffe could have laughed off the NRP’s claims. Instead, she wrote a surprisingly thoughtful opinion that gives both liberty and morality a fair shake.
To its credit, the NRP has not argued that chimps and other great apes have a constitutional right to habeas corpus. (You don’t have to be an originalist to believe that the United States Constitution was written exclusively for Homo sapiens.) Instead, the NRP is attempting to develop a habeas right in New York’s common law. That’s a smart strategy. Common law is developed by judges and can be modified by the legislature; in fact, both New York courts and the legislature have recently begun to treat animals as something more than property (though less than people). NRP is only looking to extend this trend by persuading Jaffe to declare that chimps deserve basic habeas protection.
Jaffe takes this claim seriously despite its novelty. No offense intended, I assume, but she does so by repeatedly citing the Supreme Court’s decisions broadening the rights of liberty for gay Americans. “If rights were defined by who exercised them in the past,” she notes, quoting Obergefell v. Hodges, “then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Moreover, chimps are undeniably humanlike in many ways: Humans and chimps share almost 99 percent of their DNA, as well as similar brain structure and cognitive development. They are our closest relatives; our lineages split just 7 or so million years ago, which is fairly recently in evolutionary time. Chimps also seem to demonstrate compassion, depression, and a sense of humor. They may not be human—but they aren’t totally inhuman.
Still, Jaffe writes, questions about chimps’ right to autonomy should be answered by a higher court or the legislature—not a supreme court judge. (In New York, supreme courts are low-level trial courts.) While quoting another gay rights ruling, Lawrence v. Texas’ admonishment that “times can blind us to certain truths,” Jaffe throws out the petition for Hercules and Leo’s release. “Efforts to extend legal rights to chimpanzees are understandable,” she writes. “Someday they may even succeed.” That day, however, is not today.
The movement for limited chimpanzee personhood has coincided felicitously with the steep decline in the use of great apes in research. In 2013, National Institutes of Health Director Francis S. Collins declared that the continued use of chimps in biomedical research was “largely unnecessary.” For now, apes still serve some utility in developing treatments for human illnesses—but that may not be true forever. If current trends continue, the twilight of chimp research could also be the dawn of chimp personhood. And if it is, Jaffe’s opinion denying chimps rights could turn out to be unexpectedly prophetic.