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1. using the law and the courts
volume 22 number 44 november 2014
The law plays a crucial role in both restricting and supporting sexual and reproductive health and rights, and over the years, advocates have often relied on legal strategies to further their aims. While these have led to important precedents being set in many jurisdictions, their implementation is not always fully achieved.
Using domestic courts, challenges to restrictive abortion laws have led to significant liberalization, especially since the 1960s. Regional and international human rights mechanisms have also become a focus of attention for activists seeking to develop legal standards around sexual and reproductive health. Civil and political rights and, more recently, economic and social rights (articulated with broader efforts to demonstrate their justiciability) have been applied to identify human rights violations arising, for example, from forced sterilization, denial of services, abortion bans, among others. Tackling the complex systemic issues – resource allocation, neglect and poor quality of care, access to medications and treatments, discrimination, the functioning of health systems – involved in the violation of sexual and reproductive rights has been a focus of national public interest litigation and suits brought before international and regional human rights bodies.
The explicit application of international norms to SRH issues – through jurisprudence and ‘soft law’ interpretations – can support national strategies for law reform and litigation, and vice versa. Those involved in using the law and the courts point to the symbolic power of jurisprudence, the importance of legal approaches to accountability, and the ability to bring justice and reparation to individuals and communities. However, there are also concerns about possible negative consequences. For example, in Mexico, when the legalisation of early abortion in Mexico City led to other states passing more restrictive abortion statutes, or when large numbers of individuals pursue access to expensive medications through court orders, which may skew a national health budget. This is not in any ways to suggest ruling out the value of legal strategies, but to call for caution about whether such strategies are the most appropriate means of achieving progress in complex political, economic and social contexts.
In reaction to the growing number of successes of legal strategies, it is important to recognise that anti-SRHR groups have begun to develop counter-strategies for curbing and rejecting SRHR protections through the law and the courts. Effective ways of responding are crucial and complex.
For this journal issue, we welcome submissions on using local, national, regional and international laws and courts, including quasi-judicial bodies (treaty bodies, regional human rights commissions) and others developing global standards (such as UN Special Rapporteurs).
The following are some examples of the issues we think are interesting:
Evaluating approaches that have used community, national, regional and international law and courts to further the protection of SRHR and larger efforts for social change.
Implementation and non-implementation of court decisions: justice for individuals? achieving broader reforms? reinforcing a culture of impunity?
Establishing state responsibilities vis-à-vis the private sector, and putting the private sector in the dock.
Who are the petitioners, the victims and the litigants?
Creating narratives regarding the law and public opinion through litigation: victims, winners and losers.
The pros and cons of using legal strategies where the rule of law is shaky.
Types of laws applied to SRHR and how these have been used to protect or restrict rights: international, constitutional, national, penal, religious, traditional and/or customary law.
Litigating internationally: supporting or undermining efforts to achieve change locally?
Experiences of fighting the opposition in the courts: implications and reflections.
Trusting the judiciary and what to do when they get it wrong.
Working “with” the law and “in spite of” the law. How legal strategies have, or have not, worked well alongside other strategies to advance SRHR.
Acting within or breaking the law to seek justice.
Effects of legal strategies on health care provision.
Dedicating resources to legal advocacy: at the cost of movement-building or good value for money?
Court cases are creating demands and expectations on governments, but even the best law reforms and legal decisions still require implementation and social justice.
Litigating for access to medicines: help for individuals or whole population groups? Effects on health budgets and access to treatment.
Role of the courts alongside the role of government ministries, parliaments, etc.
Differential access to the law and courts for individuals due to the costs of litigation and legal fees.
Please share this with anyone who may be interested in submitting a paper.