I. Introduction
Veterinary medicine is constantly evolving and improving, especially in the field of veterinary surgery. Surgical procedures on animals can be performed for therapeutic, diagnostic, or preventative purposes. Surgery can also be performed for cosmetic purposes or to prevent behaviors humans find destructive or annoying. These types of surgeries are called medically unnecessary surgeries and will be the focus of this paper.
Medically unnecessary surgeries are performed for cosmetic purposes, such as tail docking and ear cropping in dogs. They can also be performed to prevent behaviors humans find destructive or unappealing, such as declawing in cats and devocalization in dogs, or procedures of unconfirmed or minimal benefit such as tail docking in horses and other livestock and dewclaw removal in dogs.
This paper will focus on four specific unnecessary medical surgeries in companion animals, including tail docking, ear cropping, devocalization, and declawing. It will examine the justifications and legal arguments both for and against the procedures. Finally, it will discuss recent efforts to ban these types of surgeries both at the city and state level, with a brief comparison of tail docking and ear cropping bans in the European Union. While tail docking occurs in a variety of animals other than dogs, including pigs, cattle, and sheep, a discussion of the practices used for livestock management is outside of the scope of this paper.
II. Cosmetic Surgeries
Cosmetic surgeries are medically unnecessary procedures used solely to alter the physical appearance of an animal. Some of the two most common cosmetic procedures performed on animals are tail docking and ear cropping, particularly in dogs. The American Veterinarian Medical Association opposes ear cropping and tail docking of dogs when done solely for cosmetic reasons. See AVMA, AVMA policy opposing cosmetic procedures reaffirmed by HOD (August 15, 2009), available at https://www.avma.org/javma-news/2009-09-01/avma-policy-opposing-cosmetic-procedures-reaffirmed-hod.
A. Docking
1. Description of tail docking
The Romans believed that removing the tails of puppies would prevent rabies. In 1786, England levied a tax upon non-working dogs, and it was indicated that dogs with a docked tail were working animals and exempt from the tax. See AVMA, Canine Tail Docking FAQ (last visited July 15, 2022), available at https://www.avma.org/about/canine-tail-docking.aspx/canine-tail-docking-faq.
Docking is usually performed on a newborn puppy, during the first five days of life. The tail is either removed by scissors or scalpel at the distal portion of the tail, or by banding. This process involves placing an elasticized band around the tail to cause loss of tissue circulation and the eventual death and sloughing of the tail. Dog breeders will often use this process without the use of anesthetics or analgesics. See Mills, K. E., von Keyserlingk, M. A. G., & Niel, L. (2016), A review of medically unnecessary surgeries in dogs and cats, Journal of the American Veterinary Medical Association, 248(2), 162-171, available at https://avmajournals.avma.org/view/journals/javma/248/2/javma.248.2.162.xml.
Even if the process is performed by a veterinarian, one study found that only 10% of veterinarians used anesthetics or analgesics in conjunction with tail docking. Weber, G. H., Morton, J. M., & Keates, H., Postoperative pain and perioperative analgesic administration in dogs: practices, attitudes and beliefs of Queensland veterinarians (2012), Australian veterinary journal, 90(5), 186–193, available at https://doi.org/10.1111/j.1751-0813.2012.00901.x.
2. Why owners dock tails
Today, dogs have their tails docked for a variety of reasons. Proponents of tail docking have several arguments, including injury prevention and cosmetic purposes.
In a case study of tail injuries in working and nonworking dogs with and without docked tails, the weighted risk of tail injuries in working dogs (0.29%) was significantly higher than nonworking dogs (0.19%). However, the overall tail injury rate was quite low. Another study found similar results, with the risk of tail injury in working dogs to be 0.90% and 0.53% in nonworking breeds. In yet another study that examined owner reports of tail injuries of docked and undocked hunting dogs, the rates of injury were higher in undocked dogs used in hunts. Notably, of the injuries, only 4.4% required veterinary treatment, suggesting that the risk of serious injury was low. See Mills, K. E., von Keyserlingk, M. A. G., & Niel, L. (2016), A review of medically unnecessary surgeries in dogs and cats, Journal of the American Veterinary Medical Association, 248(2), 162-171, available at https://avmajournals.avma.org/view/journals/javma/248/2/javma.248.2.162.xml.
3. Criticisms of tail docking
Tails are an integral part of communication for dogs. Dogs use their tails to communicate and, one study suggests, that docked dogs are more likely to be subject to more frequent aggressive encounters because of increased chances of social misunderstanding than undocked dogs. A robotic dog with a long tail was observed to be more effective at conveying certain cues than one with a short tail. See David J. Mellor, Tail Docking of Canine Puppies: Reassessment of the Tail’s Role in Communication, the Acute Pain Caused by Docking and Interpretation Behavioral Responses (May 31 2018), Animals 8(6):82, available at https://doi.org/10.3390/ani8060082available at https://www.mdpi.com/2076-2615/8/6/82/htm.
The procedure itself is painful. In a study of 50 puppies that underwent tail docking at 3-5 days of age, all puppies vocalized intensely at the time of tail amputation, indicating pain. The puppies did settle down quickly after the procedure, indicating that the pain was not long lasting. See Wansbrough R. K., Cosmetic tail docking of dogs (1996), Australian veterinary journal, 74(1), 59–63, available at https://doi.org/10.1111/j.1751-0813.1996.tb13737.x.
As for chronic pain, one study found several dogs that had extensive self-trauma at the surgical site up to one year after tail amputation due to neuroma development. See Gross, T. L., & Carr, S. H., Amputation neuroma of docked tails in dogs (1990), Veterinary pathology, 27(1), 61–62, available at https://doi.org/10.1177/030098589002700110.
B Ear cropping
1. History and description of the procedure
Ear cropping is where a portion of a dog’s ears is reduced with a blade or scissors to modify their shape or allow a naturally drooping ear to stand upright. It is typically performed when dogs are between 6 and 12 weeks old, depending on the breed. For larger breeds, ears are positioned with tape, bandages, or other devices to encourage an upright position. There are no well-controlled studies that examine the animal welfare implications of ear cropping. This practice is most common in the Pit bull, the Doberman Pinscher, Schnauzer, Great Dane, Boxer, and Cane Corso.
Ear cropping was historically performed on working dogs in order to decrease the risk of health complications. It was thought that the cropping of ears would prevent wolves and coyotes from getting an easy hold on give livestock guardian breeds. This was also common practice for war dogs and fighting dogs. Tier One Veterinary Medical Center, Bringing up Two Points (last visited July 15, 2022), available at https://tier1vet.com/bringing-up-two-points/#:~:text=Ear%20cropping%20is%20an%20elective,flappy%20portion%20of%20the%20ear.
It is argued that ear cropping reduces the risk of ear infections because there is less trapping of moisture and debris in the ear canal. There is some evidence that indicates that dogs with pendulous ears have a higher risk of ear infections than dogs with erect ears, but the prevalence of ear infection is predicated on specific breeds rather than ear confirmation. See Tier One Veterinary Medical Center, Bringing up Two Points (last visited July 15, 2022), available at https://tier1vet.com/bringing-up-two-points/#:~:text=Ear%20cropping%20is%20an%20elective,flappy%20portion%20of%20the%20ear.
2. Criticisms of ear cropping
Any purported health claims for ear cropping are not backed by enough evidence to support them. The procedure carries the risks associated with general anesthesia, post-operative complications such as infection. See AVMA, Welfare Implications of Ear Cropping-Dogs (March 13, 2013), available at https://www.avma.org/resources-tools/literature-reviews/welfare-implications-ear-cropping-dogs.
The American Veterinary Medical Association views ear cropping as a cosmetic procedure and not a medically necessary one. Id. “It poses unnecessary risks,” says Emily Patterson-Kane, an animal welfare scientist at the AVMA. See Fetch by WebMD, Ear Cropping and Tail Docking (last accessed July 22, 2022), available at https://pets.webmd.com/dogs/features/ear-cropping-and-tail-docking.
Opposition to ear cropping has been ongoing for several years. The AVMA has opposed standards set by the American Kennel Club regarding cropped or trimmed ears since 1976. The original policy called for kennel clubs to delete mention of cropped or trimmed ears from breed standards and to prohibit the showing of dogs with cropped ears. AVMA, History of Policy on ear Cropping and Tail Docking of Dogs (last accessed July 22, 2022), available at https://www.avma.org/sites/default/files/resources/tail_docking_history.pdf.
C. Cosmetic procedures and their relationship to “breed standards”
Despite most veterinarians agreeing that tail docking and ear cropping serve no therapeutic benefits for dogs, breed registries still require the procedure for many dogs. Breed standards are set by American Kennel Club parent clubs, the national organization devoted to a particular breed. Breed standards can range in length from 1,943 words (Pyrenean Shepherd standard) to 226 words (Greyhound standard). These standards may also provide a list of imperfections that would automatically or severely penalize a dog in the show ring. See American Kennel Club, Purebred Dogs: What is a Breed Standard (May 26, 2021), available at https://www.akc.org/expert-advice/sports/purebred-dog-breed-standard/.
Some kennel clubs do not make allowances for undocked or uncropped dogs. The American Kennel Club “recognizes that ear cropping, tail docking, and dewclaw removal, as described in certain breed standards, are acceptable practices integral to defining and preserving breed character and/or enhancing good health. Appropriate veterinary care should be provided.” See American Kennel Club, AKC Statement on AVMA Crop and Dock Policy (November 26, 2008) available at https://www.akc.org/press-releases/akc-statement-on-avma-crop-and-dock-policy/.
Although the AKC does not require certain breeds to be docked to be eligible for the show ring, undocked animals are at a disadvantage. In the breed standard for a boxer, “an undocked tail should be severely penalized.” Id.
As of 2013, the AKC recognized 20 breeds with cropped ears and 62 breeds with docked tails. Proponents of these breed standards fiercely defend them. Breed standards help measure how closely an individual animal conforms to the standard of the particular breed. The closer the dog’s appearance is to the breed’s standard, the more likely the dog will be able to produce healthy, purpose-bred offspring.
The AKC’s Terrier Group Breeder of the Year for 2016 was charged with eight counts of animal cruelty of illegally cropping ears of her miniature schnauzer without anesthesia or a veterinary license. When she continued to illegally crop the ears of her dogs, she faced new charges including felony torture. See Washington Post, Kim Kavin, A celebrated breeder cut dogs’ ears. Now she’s charged with felony torture (October 3, 2018), available at https://www.washingtonpost.com/science/2018/10/03/celebrated-breeder-cut-dogs-ears-now-shes-charged-with-felony-torture/.
D. State laws
Even though cosmetic procedures serve no purpose, no state law prohibits tail docking or ear cropping. There are 21 states that regulate tail docking in some form. The majority regulate docking of livestock and horses, but only two that have provisions that regulate tail docking of dogs: Maryland and Pennsylvania.
Pennsylvania prohibits the cropping of dog’s ears, debarking of dogs, docking of dog’s tails, performance of surgical births of dogs, and declawing of cats by persons other than veterinary doctors while the animals are anesthetized. Tail docking and dew claw removal is only illegal if a dog owner performs it on puppies over five days old. A licensed veterinarian may dock a tail when the dog is at least 12 weeks of age and under general anesthesia. Between the ages of 5 days and 12 weeks, a veterinarian may only remove a tail if deemed medically necessary. 18 Pa.C.S. § 5542.
Maryland law prohibits anyone who is not a licensed veterinarian from cropping ears or docking tails. Md. Code, Crim. Law, §§ 10-624.
Below are other examples of states that regulate tail docking and ear cropping in companion animals:
- Ear cropping is specifically regulated by nine states (Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, and Washington).
- Connecticut (C. G. S. A. § 22-366), Maryland (Md. Code, Crim. Law, §§ 10-624), New Hampshire (N.H. Rev. Stat. § 466:40), New York (McKinney's Agriculture and Markets Law § 365), and Pennsylvania (18 Pa.C.S. § 5542) all prohibit ear cropping unless performed by a licensed veterinarian when the dog is under general anesthesia.
- Massachusetts does not have a general anesthesia requirement for ear cropping; it only requires that the procedure is performed by a licensed veterinarian. Mass. Ann. Laws ch. 272, § 80A.
- Illinois prohibits animal torture but makes an exception for the alteration of an animal done under the direction of a licensed veterinarian. 510 ILCS 70/3.03.
- Maine prohibits mutilation of dogs. It defines "mutilate" as an act “to injure or disfigure by irreparably damaging body parts.” Mutilation does not include conduct performed by a licensed veterinarian. 7 M.R.S.A.§ 3907.
- Finally, Washington prohibits cropping and tail docking of dogs older than seven days unless performed by a licensed veterinarian. RCW 16.52.095.
II. Convenience Surgeries
Similar to cosmetic procedures, convenience surgeries are those that inhibit an animal’s natural behaviors and perpetuate avoidance of responsibilities inherent with living with the animal, at the expense of the animal. They may place animals at risk without imparting physical benefits like other surgical procedures would. These surgeries are not performed for an aesthetic reason, like ear cropping and tail docking. Instead, these surgeries, are as the name implies, for the convenience of the owner and include procedures like devocalization and declawing in cats.
A. Devocalization
Devocalization (sometimes called "debarking") is a surgical procedure where tissue is removed from an animal’s vocal cords to permanently reduce the volume of its vocalizations. This procedure may be forcefully requested as a result of a court order. It is most commonly performed on dogs, but does occur in cats as well.
1. Reasons devocalization is performed and criticisms
Devocalization is used when behavioral and management interventions have failed to reduce barking to prevent relinquishment or euthanasia. Barking is a normal canine behavior. It allows dogs to communicate with humans and other animals. Excessive barking is the result of poor animal husbandry, including, inadequate training, boredom, social isolation, territorial protection, etc.
Devocalization merely reduces the volume of the noise but not the motivation or behavior. Dr. Nicholas Dodman, Director of the Tufts Cummings School of Veterinary Medicine Behavior Clinic writes, “There is always a reason why they bark that should be understood and addressed. A surgical solution is not the answer and furthermore, it’s inhumane.” See The Humane Society Veterinary Medical Association, Devocalization Fact Sheet (last accessed July 22, 2022), available at https://www.humanesociety.org/sites/default/files/archive/assets/pdfs/hsvma/devocalization-fact-sheet-1.pdf.
As with docking, this procedure robs dogs of an important communicative function. Dogs vocalize for a variety of reasons and surgery some vets argue that it is not a solution. See American Kennel Club, Why Do Dogs Bark at Each Other? (October 22, 2020), available at https://www.akc.org/expert-advice/advice/why-do-dogs-bark-at-each-other/.
The surgical procedure itself is highly risky. Dogs are placed under general anesthesia, which has inherent risks, and are highly susceptible to post surgery infection because the surgical site (larynx and trachea) cannot be kept completely sterile during surgery. Furthermore, dogs that have undergone this procedure are at substantial risk for glottis stenosis (narrowing of the throat) and the development of scar tissue. In fact, one study cited that 14% of dogs experienced scarring following oral ventriculodectomy performed for therapeutic reasons. See AVMA, Welfare Implications of Canine Devocalization (June 2018), available at https://www.avma.org/resources-tools/literature-reviews/welfare-implications-canine-devocalization.
2. Laws addressing devocalization
Devocalization bans have seen more success statewide than any other non-therapeutic procedure bans. Non-therapeutic devocalization is banned in Maryland (MD Code, Criminal Law, § 10-625), Massachusetts (Mass. Gen. Laws Ann. ch. 272, § 801/2), New Jersey (N.J. Stat. Ann. § 4:19-38, 2002), Pennsylvania (18 Pa.C.S. § 5542), and, most recently in 2020, Washington (West's RCWA 16.52.095).
All of the states grant exceptions for devocalizations that occur because of medical reasons. Performing delocalization surgery in Massachusetts can be punished by imprisonment for up to five years or a fine of up to $2,500. Mass. Gen. Laws Ann. ch. 272, § 801/2. Maryland considers performing devocalization surgery to be a misdemeanor. MD Code, Criminal Law, § 10-625. Two states also have laws pertaining to devocalizing in the housing context (see infra Section IIB(2)).
The AVMA’s position on devocalization is that the surgery should only be performed by a licensed veterinarian as a final alternative to euthanasia after behavioral modification has failed. See AVMA, Devocalization as a final alternative (February 13, 2013), available at https://www.avma.org/javma-news/2013-03-01/devocalization-final-alternative.
B. Declawing
1. Description of onychectomy or “declawing”
"Declawing" (or onychectomy in medical terms) is a misnomer. It is an invasive surgery that entails removing the claw, bone, nerve, joint capsule, collateral ligaments, and the extensor and flexor tendons from a cat. It is comparable to cutting off a human’s toes at the joint as opposed to clipping one’s toenails. See Mills, K. E., von Keyserlingk, M. A. G., & Niel, L. (2016), A review of medically unnecessary surgeries in dogs and cats, Journal of the American Veterinary Medical Association, 248(2), 162-171, available at https://avmajournals.avma.org/view/journals/javma/248/2/javma.248.2.162.xml.
Declawing has long lasting negative effects, including pain, infection, tissue necrosis lameness, and back pain. This procedure changes the way a cat’s foot meets the ground and can lead to nerve damage and bone spurs. Id.
Often, declawing is performed as a quick fix for unwanted scratching. Scratching is a normal cat behavior. Animals do not possess the capacity to destroy things with the intent to upset or anger their owners. There are many humane measures owners can undertake to prevent unwanted scratching, including providing appropriate scratching areas, trimming nails to minimize damage, double sided tape to deter scratching, and soft plastic caps that are glued onto the cat’s nails. All of these options are humane and often, less expensive than declawing surgery. See The Humane Society of the United States, Declawing for cats: Far worse than a manicure (last accessed July 22, 2022), available at https://www.humanesociety.org/resources/declawing-cats-far-worse-manicure#:~:text=Declawing%20traditionally%20involves%20the%20amputation,medical%20benefit%20to%20the%20cat.
The American Veterinary Medical Association updated its position in 2020 on declawing. It discourages declawing of domestic cats as an elective procedure (https://www.avma.org/resources-tools/avma-policies/declawing-domestic-cats).
2. Laws that ban declawing
Declawing can be banned at the municipal level; large cities like Los Angeles, San Francisco, Denver, St. Louis, and Austin have enacted declawing bans. According to the Animal Legal Defense Fund, declaw bans did not result in an increase in abandoned cats in Los Angeles after the city enacted their ban. See ALDF, New York becomes first state to ban cat declawing (October 1, 2019), available at https://aldf.org/article/new-york-becomes-first-state-to-ban-cat-declawing/.
Animal advocates often target anti-cruelty legislation at the local level as a test to ban a particular action. As a result, when West Hollywood implemented its declaw ban, California veterinarians who had a financial stake in this veterinary procedure challenged the law. In California Veterinary Medical Association v. City of West Hollywood, the City of West Hollywood passed an ordinance banning declawing. The California Veterinary Medical Association (plaintiff) sued the city on the ground that the ordinance was preempted by the state’s Veterinary Medical Practice Act under Section 460. On cross-motions for summary judgment, the trial court concluded that West Hollywood’s anti-declawing ordinance was preempted by the Act and declared the ordinance invalid. However, on appeal, the Court reversed, finding that the Act did not preempt the ordinance. Section 460 prohibits an ordinance forbidding a licensed professional from engaging in his profession, but does not preclude an ordinance from imposing regulations on the manner in which a professional practices his profession. California Veterinary Med. Assn. v. City of W. Hollywood, 152 Cal. App. 4th 536, 61 Cal. Rptr. 3d 318 (2007).
In July of 2019, New York enacted the first statewide ban on elective declawing in cats. The law states:
No person shall perform an onychectomy (declawing), partial or complete phalangectomy or tendonectomy procedure by any means on a cat within the state of New York, except when necessary for a therapeutic purpose. Therapeutic purpose means the necessity to address the physical medical condition of the cat, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the cat's health. Therapeutic purpose does not include cosmetic or aesthetic reasons or reasons of convenience in keeping or handling the cat.
McKinney's Agriculture and Markets Law § 381. Violation incurs a civil penalty not to exceed $1,000. On April 21, 2022, Maryland became the second state to enact a statewide ban on declawing when Governor Larry Hogan signed HB0022. The law, which becomes effective October 1, 2022, provides that a veterinarian who declaws a cat could pay up to $5,000 for the first offense and eventually see their veterinary license suspended. Similar bans are being considered in California (SB 585), Connecticut (Proposed Bill HB 5512 (Rep. Perillo)), Massachusetts (SD 1433), New Jersey (SB 1209), and Rhode Island (S2445).
Not only are more states looking at declaw bans to protect cats from unnecessary amputation, but a couple states address the issue in the housing context. California prohibits any owner or property manager from advertising as a requirement, refusing occupancy of, or otherwise requiring a prospective tenant to declaw or devocalize any animal allowed on the premises. West's Ann.Cal.Civ.Code § 1942.7. Similarly, Rhode Island law provides that:
No person or corporation that occupies, owns, manages, or provides services in connection with any real property . . . may do any of the following if the person or corporation allows an animal on the subject premises:
(1) Advertise, through any means, the availability of real property for occupancy in a manner designed to discourage application for occupancy of that real property because the applicant's animal has not been declawed or devocalized;
(2) Refuse to allow the occupancy of any real property, refuse to negotiate the occupancy of any real estate property, or to otherwise make unavailable or deny to any other person the occupancy of any real property because of that person's refusal to declaw or devocalize any animal; or
(3) Require any tenant or occupant of real property to declaw or devocalize any animal allowed on the premises.
Violation results in a fine of up to $1,000. Gen. Laws, 1956, § 4-1-41.
Delaware is currently considering a similar bill (H.B. 386) that would prohibit landlords from utilizing a declawed requirement as a condition for entering into or renewing a rental agreement. See ALDF, Prohibiting landlords from requiring cat declawing (Delaware) (July 1, 2022), available at https://aldf.org/project/prohibiting-landlords-from-requiring-cat-declawing-delaware/.
III. Legal Challenges to Non-therapeutic Procedures
Beyond the legal challenge to the validity of the ordinance in West Hollywood, most court cases dealing with unnecessary medical procedures are in the criminal context. This most often occurs where someone performs unauthorized veterinary procedures without a license.
A. Ear cropping
In Bell v. Texas, Johnny Wayne Bell was charged with knowingly and intentionally torturing an animal by amputating his ears. Bell amputated the ears of a Rhodesian Ridgeback cross puppy. Bell was found guilty by a jury and six months confinement at the county jail and a $500 fine. Bell appealed, on the grounds that the affiant who made the affidavit was not a credible person. The court disagreed, because the affidavit was subscribed and sworn before an Assistant County Attorney of Montgomery County. Consequently, the judgment was affirmed. Bell v. State, 761 S.W.2d 847 (Tex. App. 1988).
Similarly, in Elisea v. Indiana, Elisea was convicted of cruelty to animals and practicing veterinary medicine without a license after cropping several puppies' ears with a pair of office scissors while under no anesthesia. Elisea appealed. Here, the State was required to prove that Elisea knowingly or intentionally tortured, beat, or mutilated a vertebrate animal resulting in serious injury or death. However, it is a defense if defendant “engaged in a reasonable and recognizable act of training, handling, or disciplining the vertebrate animal.”
Elisea argued that there was insufficient evidence to support a conviction because the State failed to present sufficient evidence to rebut and overcome his defense that he engaged in a reasonable and recognized act of handling the puppies.
The Court used the plain meaning of the words “torture” and “mutilate” because the legislature had not defined those terms within the statute. The Court found that Elisea’s actions caused severe pain to the puppies, and found that the State’s evidence was sufficient to overcome Elisea’s defenses.
Elisea’s final argument was that the State presented no evidence to establish that ear cropping constitutes a practice limited strictly to the field of veterinary medicine. Elisea argued that owners of domesticated animals should not be unduly burdened by requiring them to take their animals to a veterinarian for ear cropping. The court disagreed. Elisea engaged in the practice of veterinary medicine as defined by statute. It was surgical and he accepted money for the procedure. Elisea v. State, 777 N.E.2d 46 (Ind. App. 2002).
B. Tail docking
In contrast to criminal cases concerning unnecessary surgeries, one of the issues with tail docking is that the AKC deems it a “breed standard” and required for entrance into confirmation shows. The ability to impose such breed standards was considered by courts in New York in Hammer v. American Kennel Club, 304 A.D.2d 74 (N.Y.A.D. 1 Dept.,2003) in 2003. Jon Hammer owned a pure-bred Brittany Spaniel with a natural, undocked tail. He contended that the breed standards set by defendant unlawfully discriminated against plaintiff by effectively precluding him from entering his dog in breed competitions, and thus, was arbitrary and capricious and also violated the primary anti-cruelty law (Agriculture and Markets Law § 353). As a result, plaintiff argued that the breed standard was null and void in derogation of the criminal law.
Defendants moved to dismiss on the grounds that the plaintiff did not have the legal capacity to sue and that he failed to state a cause of action. The court held that Hammer lacked standing to obtain any of the civil remedies he sought for the alleged violation of Agriculture and Markets Law Section 353.
The dissent argued that plaintiff’s object was not to privately enforce § 353; rather, plaintiff was seeking a declaration that the AKC’s breed standard for Brittany Spaniel deprives him of a benefit of membership on the basis of his unwillingness to violate a state law. The dissent found that whether tail docking for purely cosmetic reasons violates § 353 is a question of law and appropriate for a declaratory judgment.
Hammer appealed the judgment in the New York Court of Appeals later that year. The issue on appeal is whether Agriculture and Markets Law § 353 granted the plaintiff a private right of action to preclude defendants from using a standard that encourages him to dock his dog. The Court of Appeals found that it would be inconsistent with the applicable legislative scheme to imply a private right of action in plaintiff’s favor because the statute does not, either expressly or impliedly, incorporate a method for private citizens to obtain relief. Therefore, recognition of a private civil right of action is incompatible with the mechanisms chosen by the Legislature. Hammer v. American Kennel Club, 803 N.E.2d 766 (N.Y., 2003).
IV. Conclusions
Current trends point to more states banning non-therapeutic procedures in the United States at the state level. Public perceptions towards procedures like declawing and devocalization are changing, with more pet owners opposing the practice. As for practices like docking and ear cropping, there seems to be a movement to regulate the procedures to only be performed by a veterinarian.
In contrast to this incremental approach, the European Union banned tail docking in 1998. Ear cropping is prohibited in all countries that have ratified the European Convention for the Protection of Pet Animals, although some nations have made exceptions for tail docking. It is illegal to show docked dogs in England and Wales after the passage of the Animal Welfare Act in 2006. See Cagri Calgary Sinmez, Tail docking and ear cropping in dogs: a short review of laws and welfare aspects in the European Union and Turkey (February 19, 2017), available at https://www.tandfonline.com/doi/full/10.1080/1828051X.2017.1291284.
Declawing is banned in 21 countries at the national level, including England, Scotland, Wales, Italy, France, Germany, Austria, Switzerland, Brazil, Australia, New Zealand, Israel and more. The penalties for performing declawing surgery in Israel include punishment by up to one year in prison and a fine of $20,000. One Green Planet, Cruel Cat Declawing is Banned in 21 Countries. Why not in the United States? (last accessed July 22, 2022) available at https://www.onegreenplanet.org/animalsandnature/why-hasnt-the-us-banned-declawing/#:~:text=The%20Cat%20Support%20Network%20lists,%2C%20Australia%2C%20and%20New%20Zealand. Likewise, devocalization is prohibited in the United Kingdom. Convenience devocalization is considered a form of surgical mutilation. It is also outlawed in all countries that have signed the European Convention for the Protection of Pet Animals.
While other developed nations have stepped up to ban both cosmetic and convenience procedures, the United States may be stymied by kennel club requirements and the dog breeding lobby. A combination of owner-education on the risks of unnecessary surgery coupled with legislative efforts could lead to similar bans in the United States.