Sexual and Reproductive Rights Lawfare: Global battles

Timeframe: 05/01/2014 - 12/31/2019

Project Team: Siri Gloppen (Project Leader), Camila GianellaMalcolm LangfordRachel SiederBruce M. WilsonDaniel M. BrinksAlicia Ely Yamin, Julieta Lemaitre, Paola Bergallo, Charles Ngwena.


Abstract:

Sexual and Reproductive Rights (SRR) are lightning-rods of controversy in most societies. Political polarization has been particularly pronounced with regard to abortion rights and rights of sexual minorities (LGBTIQ – lesbian, gay, bisexual, transgender, intersex and queer – persons), but is also evident in issues such as the regulation of contraception, sterilization and adultery, divorce, sexual education and stem cell research. What is particularly pertinent is the growing judicialization of sexual and reproductive rights around the world. At the domestic and international level, courts have emerged as central arenas in these political-moral battles; and not only to further rights but also to limit them. The proposed project aims to understand the nature, causes and, particularly, the consequences of such lawfare, which we define as diverse and intentional strategies adopted by civil society actors that seek to engage legal institutions in order to further or halt policy reform and social change.

Background and Purpose:

Most of the literature on social movements and courts to date has focused on rights-expanding judicialization (Epp, 1998; Gauri and Brinks, 2008; Langford, Cousins, Dugard and Madlingozi, 2013; McCann, 1994; Rosenberg, 1991; Sieder, Schjolden and Angell 2005; Couso, Huneeus and Sieder 2010; Yamin and Gloppen, 2011). However, the judicial battlefield over sexual and reproductive rights has been used both to expand and to restrict rights – as illustrated by numerous legal battles over abortion legalization/criminalization and same-sex marriage in a number of countries and sub-national jurisdictions, and before international courts. In the USA, the longstanding “culture war” has intensified over abortion as well as over gay rights, with the courtroom continuing to figure as one of the main battlegrounds. In Latin America, notable victories on SSR have been registered before the courts in some countries, but there is also legal mobilization around more restrictive laws on abortion, both at the national level and before the Inter American Court of Human Rights.

Thus, there is a growing literature on various aspects of sexual and reproductive rights mobilization and its impacts. However, whereas a wealth of literature exists on SSR lawfare it is especially focused on the USA, and knowledge on SRR lawfare from other parts of the world is patchy and systematic, and comparative studies regarding the consequences of these legal battles for peoples’ actual enjoyment of sexual and reproductive rights are lacking. It is important to ask whether the US case is exceptional or seminal in understanding the lawfare dynamics elsewhere, but we lack research to test hypotheses derived from the US experience across a wider universe of country cases.

These concerns bring to the fore the importance of identifying what happens after specific rulings are issued by the courts; what the levels of compliance are; whether authorities implement what is ordered by the judges, and; which factors could influence the level of compliance and implementation of the rulings.

We seek to understand how the effects of lawfare are linked to its nature and causes, within broader institutional, political dynamics, social and cultural contexts. Thereby we aim to advance – conceptually, methodologically and empirically – the broader field of socio-legal studies concerned with law and social transformation.

The questions posed in this project are of significant social importance. Whether and how the judicialization of moral battles affects attitudes and the dynamics of social conflict – and the social legitimacy of legal institutions dealing with them – are questions of urgent concern in many contemporary societies. The effects of lawfare on SRR also deserve special attention on account of the potential implications for gender relations, the dignity, health, autonomy and well-being of vulnerable groups, and for social policy, particularly healthcare, education, public finance, civil law, and family law.

Methodology: 

We need to analyze the complexity of SRR-lawfare strategies and consider context when investigating the effects of legal mobilization, within and across countries. To understand SRRlawfare it is not sufficient to study the legal strategy, or the resulting ruling: it is also necessary to analyze the legal framework in which the lawfare strategies are embedded and the social and political structure in which they function.

In order to explore impact we want to understand whether the turn to courts is a ‘hollow hope’ or has real impacts (material, symbolic and political), we draw on a multidisciplinary team of researchers to develop a methodology integrating quantitative and qualitative methods of analysis. The aim is to operationalize a rigorous, yet nuanced conception of impact. We are interested in the direct effects in terms of policies and their implementation and outcomes, but also in other (intended and unintended) social and political, symbolic and material effects. This includes effects on public discourse, on social organization and inclusion – and on the legal institutions themselves.

Empirically, the project will examine SRR lawfare through a rigorous comparative study of battles over abortion and LGBTI rights in thirteen countries. The case selection was predicated on identifying a sample of countries in which courts validated progressive, conservative, or no lawfare. The case studies allow us to see what happens when judicial politics offers opportunities for progressive and conservative movements, and more dynamically how contextual factors, opportunity structures, and strategic action may vary across time, issues, and sub-national units. The category of no lawfare is important as a control both in understanding conditions for the emergence of lawfare and its effects in relation to counterfactuals.

The case selection is based on findings from existing research, indicating the dynamics and effects other forms of legal mobilization (around socio-economic rights, including health rights) are profoundly shaped by differences in the social and legal context (legal system, political opportunity structure; incentive structures in the health system). A comparison of SRR cases across these contexts will provide insights into whether and how these factors impact on the type of SRR lawfare; the actors involved; their strategies and arguments; and ultimately on the effects of the cases both in terms of legal remedies; influence on policy and institutional change and in terms of material outcomes (a.o. access to safe abortions and changes in social stigma for LGBTI people).

Our research design for the comparative study is ambitious and innovative, based on mixed methods. At the core are structured thick descriptions, that are qualitative cases studies allowing for in-depth consideration of multiple contextual factors, but within a relatively fine-grained common analytical framework that enables meaningful comparison and provides a clear set of questions that each country author will have to answer.

The qualitative cases studies will be complemented by targeted quantitative studies seeking to assess various effects and impacts within and across cases, including experimental surveys assessing processes of attitudinal change. What is relevant and possible to do in terms of quantitative analysis will vary between contexts, depending on the nature of SRR lawfare and data availability, but will centrally include using and expanding the Judgment Watch database (http://judgmentwatch.org). Survey data on public perceptions of abortion and/or LGBTI rights before and after periods of significant pro- or anti-SRR lawfare may provide evidence of symbolic effects. Cross-national data will be used to provide a control group to see whether the changes are not just following general trends. We will rely on existing relevant time-series data (for example World Value Survey data) on changes in attitudes on relevant issues. Some survey data will also be collected within the scope of the proposed project, using survey experiments to probe processes of attitudinal change. This comparative mixed-methods approach aims to identify and assess chains of potential causal mechanisms linking SRR-lawfare to various forms of social transformation across social contexts.

Main findings:

  • We developed a database with SRR decisions at national and international level for 42 variables (information on the case, actors, issues adjudicated, success rates, remedies, citation of jurisprudence). Both progressive and conservative judgments are included. Thus far, all international level cases are coded (188) while country level coverage will be completed in 2017. The database has already been central to a significant number of papers and has attracted interest from other scholars. So far we can conclude that SRR litigation has become a more frequent, especially from the 1990s, with an increasing number of repeat players.
  • Courts are particularly important for pro-SSR actors while anti-SRR groups to a larger extent use legislative arenas and faith based civil society campaigns. Pro-SRR activists’ turn to litigation should be understood as a response to local legal and political opportunity structures. Where the political space is politicized, and dominated by conservative actors, courts represent a potentially less hostile arena and a route to international courts and public attention. Where legislative spaces are more open (Uruguay, Chile, Mozambique, Scandinavia) the pro-SRR side has prioritized – and advanced through – legislative strategies.
  • The global trend contains marked regional and intra-regional variation: In Latin America (LAC) whether you see the right to abortion services as integral to women’s right to health and autonomy, or as a violation of ‘the right to life from conception’ – has become an identity marker, central to elections and high politics. The conflict is highly legalized. Actors on all sides use courts, but anti-abortion groups (Catholic. Evangelical) also use legislative and constitutional arenas. Regional (and global) networks of actors are particularly on the anti-side, with close links to groups opposing LGBT-rights and other SRR-issues.
  • In Africa, the big issue is ‘homosexuality’ (short for any non-heteronormative sexual orientation/practice and gender identity, LGBTIQ). South Africa and Mozambique have had significant liberal law and policy shifts. But in most African countries the anti-gay position is a valence issue that no parties oppose, with overwhelming popular support – unlike in LAC, where abortion divides political parties. Pro-LGBT voices are increasingly heard in the courts, with some significant victories. The number of cases is low, but growing, mainly focused on anti-sodomy laws and association rights. Lawfare is fuelled by hostile political conditions, enforcement of sodomy laws, diffusion effects from successful -Uganda and South Africa-, and some liberal judges and international support. Compared to LAC, international actors are more prominent on all sides (religious, global health, activist networks, donors). The anti-gay stance is interwoven with discourses around African-ness, masculinity, neo-colonialism and is closely tied to political power struggles, strategically used by regimes to silence opposition, through bans on ‘promoting homosexuality’ and stricter laws on foreign funding.
  • Indian courts have in the past 5 years handed down both liberal and conservative LGBT rulings, and, most recently a progressive abortion ruling affirming womens’ autonomy (Bombay HC, 2016). A court case on de-criminalization of homosexual relations, declined by the Supreme Court sparked counter-movements. The initial decision to litigate was controversial, but LGBT activists seem to agree that the impact has been overall positive despite loss in SC. Religious actors and framings are present, but more ambiguous in the Indian context than in LAC and African context.
  • In Eastern Europe we see successful mobilization by anti-abortion/gay groups linked to the (Catholic/Orthodox) churches, right-wing parties, and increasingly authoritarian regimes. In Western Europe both law and public opinion has shifted in a liberal direction. Most interesting in the European context is the role of the European Court of HR and the European Court of Justice. Both have giving important judgments affirming LGBT-rights, while being less assertive on abortion and the project explores how the ECHR’s reproductive rights jurisprudence is constructing narratives of women’s citizenship.
  • Across contexts, strategies and framings of pro- and anti-SRR actors are closely interlinked. As cases are taken to the legal arena claims are reframed in light of opposing argument On effects of courts and law on public opinion, survey experiments (Norwegian citizen panel) indicate that it matters whether a controversial position is endorsed by a court (in the case of sex-work), and what the law on the matter is (regarding change of legal gender).
  • Our database of national and international SRR court decisions documents the rise and spread of SRR litigation and shows a.o. that women judges are more likely to vote in support of sexual and reproductive rights; that an increasing number of actors involved in litigation are experienced repeat players; and that the (quasi-judicial) SRR decisions of UN human rights treaty bodies can have significant (although uneven and sometimes unexpected) impact on SRR litigation and jurisprudence in other courts and tribunals.

Main Outputs:

Yamin, A. (2017). Health in Latin American Constitutional Law. Handbook on Latin American Constitutional Law. Oxford.

Yamin, A. (2017). T-760/08 (Constitutional Court of Colombia). Encyclopedia of Comparative Constitutional Law. Max Planck.

Langford M. (2017). Same-Sex Marriage in Polarised Times: Revisiting Joslin New Zealand. In E. Brems and E. Desmet, Rewriting Integrated Human Rights. Cheltenham: Edward Elgar.

Wilson, B. and Rodríguez, O. (2017). Costa Rica: Understanding Variations in Compliance. In Langford, M. et al. Social Rights Judgements and the Politics of Compliance: Making it Stick. Cambridge University Press.

Yamin, A. and Bergallo, P. (2017). Editorial: Narratives of Essentialism and Exceptionalism:

The Challenges and Possibilities of Using Human Rights to Improve Access to Safe Abortion. Health & Hum. Rts. J. 1-11.

Bergallo, P. and Michel A. R. (2016).The constitutionalization of abortion in Latin American law. In R. Gargarella (Eds.), Handbook in Latin American Constitutionalism 1810-2010. London: Routledge.

Bergallo, P. and Ramon A M. (2016). Debates Legales sobre el Aborto, Eudeba. Universidad de Buenos Aires Press.

Bergallo, P. and Ramon A M. (2016). Constitutional developments in Latin American Abortion Law. International Journal of Gynecology and Obstetrics Law, 135(2).

Maistrellis, E., Chia, V. and Yamin, A. (2016). Perils and Possibilities: Reflections on the Use of Scientific Evidence in Abortion Court Cases and Why the Public Health Community Should Care. Harvard FXB Center Working Paper.

Gianella, C. and Wilson, B. (2016). Superior Courts and LGBTI Rights in Latin America. In Gonzalez-Bertomeu, J. and  Gargarella, R (Eds.), The Latin American Casebook: Courts, Rights, and the Constitution. Ashgate: Routledge.

Oja, L. and Yamin, A. (2016). Woman in the European human rights system: How is the reproductive rights jurisprudence of the European Court of Human Rights constructing narratives of women’s citizenship? Colombia Journal of Gender and Law, 32(1), 62-95.

Kollmanskog, V. (2016). Love and Lawfare: How Indian Courts Became a Battleground For Queer Rights. Gaylaxy. Empowering Expressions.

Kollmanskog, V. (2016). No Going Back. A Case Study of Sexual and Gender Minorities in India and their Legal Mobilisation. Advances in Social Sciences Research Journal, 3(8).

Gianella, C. and Wilson, B. (2015). Rainbow Revolution in Latin America: The Battle for Recognition. CMI, 4(1).

 

http://www.cmi.no/research/project/?1836=uib-nfr-sexual-and-reproductive-rights-srr-lawfare