A Most Dangerous Precedent

In doing the ASPCA's bidding, New York Governor Kathy Hochul, Senator Joseph Addabbo, Jr., and Assemblymember Amy Paulin have passed first-of-its-kind, dangerous legislation to kill animals.

New York Governor Kathy Hochul recently signed S6870B into law. The law creates a new justification for killing animals in New York pounds — “mental suffering.” The Governor signed the bill, despite rescuers, shelter reform advocates, and others urging her to veto it. The No Kill Advocacy Center also wrote and asked her to reject it. Ignoring animal lovers, she not only consigned shy animals, scared animals, feral cats, and any other animals shelters want to claim are in psychological pain to death. She also introduced a first-of-its-kind, dangerous precedent into the animal control laws of our nation.

In addition to closing shelter doors to animals in need, closing for adoption without an appointment, shelters breeding dogs while they kill rescued ones, and ending the enforcement of animal protection laws in deference to racist policies, killing animals by claiming they are “mentally suffering” now represents one of the most profound threats to animals in U.S. pounds. Other jurisdictions and individual shelters will emulate the practice, and it will kill animals for years to come.

Stress should not be a death sentence

There is no definition of “mental suffering” or standards for applying it. Even though progressive shelters have demonstrated and peer-reviewed studies have confirmed that the vast majority of dogs classified as having “behavior” issues in pounds are perfectly normal, any staff member can claim an animal is in “psychological pain” and many healthy and well-behaved animals will be put to death. Why?

All animals can experience stress on entry to a pound. Many are used to sleeping on beds and couches in homes or even living on the street and will find their familiar routines upended in a confined place that is loud, often dirty, unfamiliar, and disorienting. Getting them out of the shelter through adoption, foster, or rescue would end the stress, yet none of these are required by the new law. And they are not because the ASPCA, which authored the legislation, and the killing facilities it lobbies for, oppose them. 

But even if the ASPCA law included more stringent criteria for determining “mental suffering,” such as medical testing, behavioral evaluation, staff-mandated training, the involvement of people who understand the science of animal behavior, and the concurrence of a veterinarian board certified in behavior medicine — which it does not require — the law would still have been dangerous.

No “irremediable psychological suffering”

There is no such thing as an animal who is so traumatized that she should not be — would not want to be — alive. The view that animals can experience irremediable psychological suffering not only flies in the face of every animal’s instinctive will to live but to an animal’s own reaction to the perception that she may be in harm’s way — which is not to run towards a threat to her life but to deter it by fleeing or displaying aggression. Humans are the only species that commit suicide (and even then, suicide is not performed or sanctioned by the medical community to address a diagnosis of “irremediable psychological suffering”). It, therefore, does not make sense to respond to trauma or fear in an animal by doing the very thing a traumatized animal’s behavior demonstrates they are desperately trying to avoid: harm. 

Indeed, it is difficult to imagine any scenario in which one human being could confidently say another human being suffering “psychological pain” would be better off dead and feel justified in ending that person’s life, especially without that person’s consent, as is done for animals. Instead, when confronted with people suffering psychological trauma, the response is to seek a remedy to help them no longer feel that way. There is no justification for a different standard for animals. 

When veterinarians speak of irremediable physical suffering, moreover, they have objective measures, baseline values against which to compare any lab or pathology data and experience with medications or other attempted medical interventions. In other words, the animal has received a confirmed diagnosis through rigorous testing, prompt, necessary, and comprehensive veterinary care has failed, the condition is beyond medicine’s ability to care for or manage, and the animal is suffering severe unremitting pain. Psychological suffering fails on these counts. 

While there are some objective measures — skin conductance, heart rate, blood pressure, salivary cortisol levels, and even stereotypical behaviors — at best, these measures current mental state, not future behavior or, more accurately, “resilience,” the successful adaptation and recovery from the experience of severe adversity. At worst, these measures are meaningless, especially if there are no baselines for the individual animal, which there rarely are in the shelter environment. The result is that there are simply no objective measures to make an adequate determination as to the existence or degree of psychological suffering. And shelter personnel and the veterinary community, in general, are not qualified to do so without objective criteria.¹ In no other sub-discipline does a veterinarian make a medical determination without data. 

Moreover, even if an animal is suffering psychologically and even if it were determined, with certainty, that some mental scars would always remain and the animal will always need some level of protection or care consistent with the behavioral expression of those scars, this doesn’t mean that she cannot recover to a point of happiness and good quality of life. A lot of people successfully live with psychological scars. Studies on human resilience show that social support is a strong buffer against post-traumatic stress disorder and other psychological problems. 

In fact, social support can result in successful adaptation and recovery after experiencing severe adversity, increasing both the speed of recovery and the level of mental health and well-being. According to one analysis, “human studies clearly show that an extended social network and positive experiences are important factors contributing to resilience.” Similarly, “research using environmental enrichment strategies, i.e., using social housing with plenty of play opportunities, has suggested an important role for social contact and positive experiences in resilience to social defeat.” The three core experiences associated with recovery are forming a secure attachment, positive emotions, and purpose in life. For animals, this means a loving, new home. 

Depending on the severity of the condition, there may also be a need for behavioral rehabilitation protocols and even drug therapy. In extreme cases, where the animal feels tormented or, in the case of a dog who poses a direct and immediate risk to public safety, there may be a need for a sanctuary environment. This, however, is rare, amounting to roughly ¼ of 1% of intakes.²

Rejecting the notion of irremediable psychological suffering does not deny that animals can undergo profound psychological suffering; only that it can never rise to the level of being a death sentence. Said one shelter worker, 

I met countless dogs and cats who had survived unimaginable cruelty: they were used to fight or used as ‘bait’ in fights, starved to shockingly skeletal states, set on fire. When I would visit the animals on my lunch hour, though, I would often see dogs wag their broken, bandaged tails when I walked into the kennel room, malnourished dogs who would look up from their bowls of food to play bow and lick my hand. Of course, dogs are not alone in their capacity for forgiveness. I will never forget the cat I saw who had been set on fire. When I walked into the room, he rubbed his raw skin against the bars of his cage just at the sight of me, a stranger to him, purring and eager to be touched.

The ASPCA law offers traumatized animals more violence

What do we owe the neediest animals who arrive in our shelters looking for a second chance? We owe them a safe harbor and time — time to abandon fear, to forget a haunted past, and most important of all, to learn that humans can be trusted after all. With the right amount of love, kindness, compassion, positive conditioning, safety, and, when necessary, medical intervention, psychologically wounded animals, like humans, have a remarkable capacity for resilience.

But because of the ASPCA, who wrote the bill, Governor Hochul, who signed it, as well as New York Senator Joseph Addabbo, Jr. and Assemblymember Amy Paulin, who introduced it in their respective chambers, this opportunity will be denied them. Instead of kindness and care, which will help them heal, they will be subjected to violence. They will be given a lethal dose of poison and either turned to ash in an incinerator or placed in garbage bags and left to rot in a landfill.

That is the legacy that New York has wrought.

1. Current temperament testing regimes for dogs do not qualify as objective criteria as they have been found to be no better than a coin toss. This is not likely to change as temperament testing rests on a faulty premise: that the results of a test “administered at a single time in a stressful, unfamiliar shelter environment surrounded by strangers can generally be considered a reasonable surrogate for that dog’s behavior in a future home,” especially where the dog “would presumably be attached, settled, and frequently in the company of familiar people, and potentially have very different concepts of territory and different reactions to stimuli.”

2. Broadly, this should include placement and treatment criteria depending on the severity of the duress: 

1. The animal can go to a home; 

2. The animal needs some rehabilitation and then can go to a home; 

3. The animal has unique needs that require knowledge and possibly some restrictions (e.g., no off-leash activity);

4. The animal has unique needs that require longer-term rehabilitation and perhaps medication;

5. The animal needs long-term help and sanctuary, understanding that a sanctuary is not a place where one gives up on animals. Instead, a sanctuary provides placement that meets the needs of the individual for long-term or lifetime care, with repeated, standardized exams to flag interventions that maintain and improve quality of life.