In June 1215, English barons cornered King John on the fields of Runnymede and forced him to sign the Great Charter—Magna Carta—among whose guarantees was the right to habeas corpus: “No man shall be arrested or imprisoned . . . except by the lawful judgment of his peers and by the law of the land.”

In June 2022, the New York Court of Appeals, the state’s highest court, ruled 5-2 in Matter of Nonhuman Rights Project v. Breheny that Happy—an elephant that has been at the Bronx Zoo for 40 years—did not have a right to habeas corpus, which would have permitted her transfer to an elephant sanctuary. “Because the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement,” wrote Chief Judge Janet DiFiore in her majority opinion, “it has no applicability to Happy, a nonhuman animal who is not a ‘person’ subjected to illegal detention.”

In his dissent, Judge Rowan Wilson presented a hodgepodge of arguments to justify providing relief to the confined animal. He began by pointing out that 116 years ago the Bronx Zoo had put Mr. Ota Benga, a “pygmy” from the Congo, “on display in a cage with an orangutan,” exhibiting him as a curiosity and “doubling attendance.” After conceding that “human beings should have greater rights than elephants, if only because we make the rules,” Wilson insisted that “the crucial point” connecting Mr. Benga’s and Happy’s experience “is that both suffered greatly from confinement that, though not in violation of any statutory law, produced little or no social benefit.” The judge then invoked 18th-century philosopher Jeremy Bentham concerning the treatment of animals: “[T]he question is not, Can they reason? nor, Can they talk? but Can they suffer?” And from there he proceeded to score the majority for paying “lip service” to “Happy’s intelligence” in their description of her as “an autonomous and extraordinarily cognitive complex being,” which, “in many contexts, the law clearly imposes a duty on humans to treat . . . with dignity and respect.”

Happy’s status as a non-person notwithstanding, Wilson wants his colleagues to break new ground, asking “whether the detention of an elephant can be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law” (emphasis added). Inviting judicial activism, Wilson urges the court to “modify the common law to adapt it to societal changes and needs,” citing the expansion of the rights of “enslaved persons, women and children” as precedents.

No mere obstacle like the letter of the law can get in the way of the modern judge sensitive to the emotional needs of elephants. After all, Wilson goes on, our evolving times have brought about an understanding “of the cognitive and emotional makeup, needs and capabilities of elephants . . .  far different than it was in bygone times.” He denies that the law’s explicit discussion of habeas corpus as applying to “a person” does not mean pachyderms can’t also be wedged into its application. Happy apparently recognizes herself in a mirror, but Wilson is far more interested in holding a mirror up to society, asking how our acquiescence in her captivity at the Bronx Zoo “defines who we are or, in the case of habeas, who we might want to be as a society.”

Evolution is key to Wilson’s worldview. He spends almost 20 pages arguing how habeas corpus created rights for slaves, wives, and children that masters, husbands, and parents (especially fathers) had to recognize. He uses that to launch his theory of evolving animal rights, assuring us that what fuels “changing social norms about wild animals is our vastly enhanced understanding of their cognitive abilities, needs, and suffering when in captivity.” He admits “human understandings of elephant cognition are continuously developing and . . . far from absolute,” but is confident that he and the plaintiffs are on the right track. He’s also certain that the law plays the role of moral pedagogue: “The law, at its core, reflects normative judgments about the behaviors we want to allow, encourage, discourage, or prohibit.”

Two observations:

First, almost all of the arguments Wilson, and Judge Jenny Rivera, who wrote a separate dissent, marshal to advance the rights of Happy the Elephant would almost certainly be dismissed by the same judges if applied to the unborn. New York is actually one of about a dozen states whose highest court has invented a state constitutional right to abortion independent of the purported federal one that Dobbs laid to rest.

One doubts a judge who spoke about the pain experienced by an unborn child while he or she is dissected, pickled, or left to die in a surgical bucket would gain much traction. The prestige media would assure us there is no pain, just involuntary “reactions to stimuli” produced by a primitive neural network. And an argument that such treatment of our own species violates the “essence of humanity” would likely produce telling guffaws in the op-ed pages of the cognoscenti for days. A judge who compared unborn children to slaves—or compared unborn girls aborted because they are the wrong “sex” to female victims of discrimination—would likely be skewered for “disrespecting” socially recognized victims. That Judge Wilson uses these victims to make a case for elephant rights has been met with deafening silence.

Second, Wilson’s arguments betray an alliance between “animal rights” radicals and environmental fundamentalists, both sides sharing the common conceit that there is nothing special or even necessarily desirable about that carbon-heavy-footprinter called man. Step-by-step, our Genesis heritage, which recognizes human dominion over the nonhuman world, is being replaced by a quasi-pantheism that protects “life” (with no special recognition of human life) when such vitalistic appeals are comforting, but in a selective fashion that guts the very value they allegedly protect. The bioethicist Wesley Smith (see here and here)  has warned against attempts to extend “rights” not only to animals but to non-animate environmental phenomena like rivers and streams as well. The process is much more advanced abroad but, as the New York case shows, it may be coming to a state near you. And don’t forget that 50 years ago, Justice William Douglas wrote in his dissent in Sierra Club v. Morton that the Court should grant rights to “valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.” Just not to the unborn.