They Shoot Horses Don't They? (part two)

As promised, here is part two of my piece on hippophagy. As you may have figured out from the fact that yesterday's post was composed in Word, I am new to posting blogs. At the University of Louisville School of Law I am a full-time Dean of Students and so don't get as much time to write as I would like, but a number of my interests, particularly in the area of indigenous peoples, overlap the area of agricultural law. See all my works (including a footnoted version of this post) at:
http:// ssrn.com/author-892061

Legislative Intervention Upheld

The last three horse slaughterhouses, two in Texas and one in Illinois, have been closed by state statutes and these closures have been upheld by the Fifth Circuit, Empacacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007) and the Seventh Circuit, Cavel International v. Madigan, 500 F.3d 551 (7th Cir. 2007) with the deal sealed by a denial of certiorari by the Supreme Court. Cavel International v. Madigan, 128 S.Ct. 2950, petition for writ of certiorari denied.

In 2002, at the request of a Texas state legislator, the Texas Attorney General issued an opinion stating that an existing state law which had heretofore not been applied in that manner prohibited the slaughter of horses for human consumption. In 2005 the United States District Court for the Northern District of Texas disagreed and granted the slaughterhouses’ motion for a permanent injunction from prosecution, but, in 2007, the Fifth Circuit reversed.

This left a lone Illinois slaughterhouse as the only equine abattoir in the United States. But in 2007, “With a stroke of his pen, Gov. [Rod R.] Blagojevich has brought the brutal slaughter of horses in the United States to an end. Hereafter, may we only hear of horse slaughter recounted in history books as a sign of how we have progressed in our treatment of these majestic animals,” As alluded to above, the governor’s decision was guided in part by the works of former actress and now animal activist Bo Derek.

The slaughterhouse operator’s motion for a preliminary injunction was denied by the United States District Court for the Northern District of Illinois, and the operator’s appeal was denied in 2007.

Thus, it became impossible to slaughter horses for human consumption within the United States, even if the meat was destined for foreign tables. But it is still possible to export live horses to be slaughtered elsewhere (mainly Canada and Mexico) for human consumption outside the United States. For now. Enter the “Prevention of Equine Cruelty Act of 2008,” introduced in the House on July 24, 2008 by Representatives John Conyers Jr. (D-Mich.) and Dan Burton (R – Ind.), which would, inter alia, criminalize the export of horses intended for human consumption. A similar bill last year passed the House 263 to 146 but never made it to the Senate. And, yes, then-Representative John Sweeney (R –NY)(about which much else could – and has – been written), sponsor of a prior bill, referenced Mr. Ed, along with Secretariat and Silver, in touting the legislation.

Conduct, “Other-regarding” and Misguided

So much, as promised, for the Bo Derek and Mr. Ed references. But where does John Stuart Mill come in? There are two potential arguments for the ban on horse slaughter. One, which I will suggest in a bit is genuinely misguided, implicates animal cruelty issues. The other implicates Posner’s invocation of Mill.

Judge Posner, who wrote the Seventh Circuit opinion upholding Illinois’ ban on horse slaughter, in so doing had to admit that “A follower of John Stuart Mill would disapprove [of a law banning eating horse meat] merely on the basis of distaste.” Posner was, of course, referring to Mill’s distinction between self-regarding and other regarding conduct, which Posner defined more clearly in an earlier case:

One is put in mind of the distinction famously drawn by John Stuart Mill, in chapter 4 of On Liberty (1859), between “self-regarding” and “other-regarding” conduct. The former term refers to acts that inflict a direct harm on one, such as an assault, or a breach of contract, or an insult, and the latter to acts that harm one only in the sense that one is offended to learn about the conduct. The example Mill gave of an other-regarding act was the distress that people in Britain felt upon learning that Mormons in Utah (this was before the Mormon Church renounced polygamy) were practicing polygamy six thousand miles away. The counterpart today would be a worker offended by the fact that a coworker was of a different race or religion.

What could be more other-regarding than a ban on eating horse meat, or (slippery slope, anyone?) as Posner stated “serving cat and dog steaks” in Chicago restaurants? Is it any different to say that, “You gay marriage demeans my straight marriage” or “You can’t eat horse meat because I am repulsed?”

There are a number of reasons why the animal cruelty argument fails as well. First, does it make any sense to leave an excellent protein source, one of otherwise zero alternative utility, on the hoof and eating food that could go to other (admittedly more universally palatable) food sources such as cows, on a planet where starvation is rampant? Second, the American methods of horse slaughter are not different from the methods of cow slaughter, so presumably a ban on one should support a ban on the slaughter of another. Third, none of the legislation, state or federal, makes any provision for funding of rescue efforts for unwanted horses; a total ban, one on domestic slaughter and on export for slaughter would undoubtedly result in more abandoned horses, which would die in worse circumstances than those of the abattoir. Fourth, the current situation, a ban on domestic slaughter but not on export for slaughter, results in the unwanted horses being “brutally slaughtered” abroad, particularly in Mexico.

If a ban on “other-regarding” conduct is a weak reed upon which to support a ban on equine slaughter, and if humanitarian support for the ban is misguided, and if there is a legitimate demand for viande chevaline in a protein-hungry world, somebody needs to take a deep breath and examine this issue a bit more dispassionately before the pending federal legislation is adopted, leaving us with tens, if not hundreds of thousands of unwanted, starving horses that could help feed starving people.