Published November 25, 2014

Health rights litigation is receiving much attention at Harvard’s FXB Center for Health and Human Rights and Harvard Law School.

Under the direction of FXB policy director Alicia Ely Yamin, the Center recently hosted the third annual course on health rights litigation as part of the Global School on Socioeconomic Rights. This year’s course focused exclusively on sexual and reproductive rights (SRR) litigation, including such topics as: abortion, litigation of LGBT rights in varied contexts, access to sexual and reproductive health entitlements, and working with marginalized groups in doing SRR advocacy. Participants hailed from 26 countries and included seasoned lawyers, public health professionals, and scholars.

Capping off the course, participants were invited to attend a two-day international conference on “Sexual and Reproductive Rights Lawfare,” which drew leading world experts to discuss the dynamics and impacts of international tribunals and forums in relation to controversial SRR issues.

The conference evolved around an interdisciplinary and international research project, headed by FXB Fellow Siri Gloppen, which looks at the nature, causes, and consequences of the growing judicialization of SRR around the world. The research aims specifically to examine SRR “lawfare” – the strategic use of court action to effect political or social change – from different regions of the world and see how contextual factors, opportunity structures, and strategic action can vary across time, issues, and sub-national unions.

Experts from Europe, Latin America, Africa, the US, and Australia discussed relevant case studies illustrating how SRR lawfare is conditioned by progressive and conservative movements around the world.

In a specific session examining International SRR Lawfare Dynamics in Latin America, FXB Fellow Camila Gianella spoke about developments in reproductive rights litigation in Peru. She drew on cases regarding forced sterilization and access to therapeutic abortion. In examining the social and political context of lawfare strategies in Peru, Dr. Gianella touched upon the prominent role of local courts and the Catholic Church in the Peruvian political system, with religious leaders serving in key positions such as the Minister of Health. The resulting rulings in these cases represented legislative victories in the field of SRR achieved by conservative groups.

The conference concluded with a session examining the transnational diffusion effects of SRR lawfare through legal mobilisation, networking and norm diffusion (and reaction to it) amongst social movements and the judiciary. When it comes to the impact of judicial intervention to effect SRR legislation and widespread social transformation, scholars have raised concerns about the existence of organized opposition to rulings in these highly normative cases. The discussion brings 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.

In December, Health and Human Rights has a special issue on health rights litigation, guest edited by Yamin, which examines the role of courts in promoting equity for health and whether health rights litigation can bring real material, symbolic, and political impacts on social progress.

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