Saving Zoey

A veterinarian may face disciplinary action for refusing to kill a dog. She should be hailed as a hero.

As wrong as it is to talk of animal companions as “property,” there are times when that legal status confers protection, such as under the Fourth Amendment. Dogs and cats, for example, cannot be seized and killed by animal control without a court or other hearing, because doing so would be a taking of property without due process of law. But it is only a protection where no others currently exist and it is a limited one because the right belongs to the person, not the animal. What happens when the interests of the animal and the interest of the animal’s human family collide? In those cases, the animal’s status as property would harm, rather than help.

Dr. Mary Smart, a Utah veterinarian, for example, may face disciplinary action for saving a dog’s life. “Last fall, Zoey, a boxer breed, started having seizures. The dog also had a large mass on her side. The family thought it was cancerous and that it was slowly taking her life.” Zoey’s “owner” stated that “her family had been through a very hard time over the past year. Her husband robbed a bank, the family lost their home after he went to prison, and then the family dog got ill.” They were unable to afford care: “This felt like the final stab. I knew it was going to be what pushed my kids to their breaking point.” Her son described sleeping “with Zoey almost every night. She was my best friend.” The dog’s “owner” asked her father to take Zoey to a local veterinarian to be put down.

But Dr. Smart did not kill Zoey. She took the money the father paid to put Zoey down and did surgery instead. She then sent the dog to a rescue group. Six months later, while looking for another dog, the family saw Zoey on the rescue group’s page. According to Dr. Smart, she told the father that the dog was not suffering: “In my professional opinion, this was a dog that had years to live and I didn’t want to put the dog down. I was trying to save [Zoey’s] life.”

She said “she discussed other options that could save Zoey. Surgery, medication, or even ‘do nothing,’ but let the dog live.” When the father “kept repeating that he wanted to put the dog down,” she took his money, told him she did it, and saved the dog anyway. But since “A pet is legally classified as someone’s property,” she now faces sanction. She shouldn’t.

Killing a healthy or treatable dog should be illegal, regardless of whether the dog is at a shelter or it’s what a family wants. And if the dog was not classified as “property,” but had a right of legal personhood, it would be. Instead of misleading the family, the veterinarian could have gone to court on Zoey’s behalf. That is what should come of this case and there’s precedent for it.

Courts have ruled that a family who does not believe in chemotherapy or blood transfusions cannot choose to allow their child to die if those things can possibly save the child’s life. There are laws that say a family cannot cut down a tree on their own property because public policy is against cutting down of trees. Why not dogs?

Indeed, one veterinarian argues that killing dogs like Zoey is what should subject members of her profession to censure. Dr. Patty Khuley states that killing these dogs is a violation of the veterinarian’s oath to protect animals and prevent suffering: “Veterinarians protect animal life. We do not end it to serve the professed needs of a culture that has not yet become sufficiently enlightened with respect to the welfare of its animals. Until it does, we will not participate in this practice, regardless of what our larger society deems acceptable.” She goes on to argue that a veterinarian who kills healthy animals (and I would argue those who are treatable) “should do so at the risk of losing their license to practice veterinary medicine.” She’s not alone.

In his pioneering research, Dr. Gregory Berns shows striking similarities between humans and dogs in regions of the brain associated with positive emotions. And this, writes Dr. Berns, “suggests a rethinking of how we treat dogs.” “[R]ecent rulings by the Supreme Court have included neuroscientific findings that open the door to such a possibility. In two cases, the court ruled that juvenile offenders could not be sentenced to life imprisonment without the possibility of parole. As part of the rulings, the court cited brain-imaging evidence that the human brain was not mature in adolescence. Although this case has nothing to do with dog sentience, the justices opened the door for neuroscience in the courtroom. Perhaps someday we may see a case arguing for a dog’s rights based on brain-imaging findings.”

Accordingly, Dr. Berns posits that neuroscience warrants changes in how we view and treat dogs, namely that the law should not regard dogs as property, but as legal persons, and that puppy mills, vivisection, and dog racing should be banned “for violating the basic right of self-determination of a person.” In fact, there’s precedent there, too.

Over 30 years ago, California courts invalidated a provision in someone’s will that said the dog was to be killed upon her “owner’s” death. The court (and then the legislature) found that it violated California’s public policy against killing dogs who have a place to go just because the dog’s humane caretaker requests it. California law also says a shelter can’t kill a dog when a rescue group offers to save her. It is illegal in Muncie, IN, for a shelter to kill a healthy or treatable dog. And Maine’s governor just pardoned a dog involved in a death penalty case against that dog, stating that his pardon power under the constitution is not explicitly limited to humans.

Compare a 2003 case where a “court dismissed a couple’s complaint seeking enforcement of a [divorce] settlement agreement that provided for shared custody of a dog: stating that ‘appellant is ­seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp” to a new Alaska law that requires “courts to make specific determinations in a final divorce order about companion animals… taking into consideration the well-being of the animal.” As the Oregon Supreme Court recently noted, “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still:”

Over 100 years ago, you could torture and kill your own dog because “it” was your property. Today, the dog has a right to be free of such violence. In fact, “he” has a legal right to more: food, water, and shelter. Someday, he will be entitled to love and attention. And someday still, you will not be able to kill your own animal if the animal is not irremediably suffering because to do so violates his right to live. That day can’t come soon enough for dogs like Zoey and compassionate veterinarians like Dr. Smart.


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