Julieta Lemaitre and Rachel Sieder

 Abstract

Feminists and religious conservatives across the globe have increasingly turned to courts in their battles over abortion. Yet while a significant literature analyzes legal mobilization on abortion issues, it tends to focus predominantly on domestic scenarios. In this article, we consider the effects of this contentious engagement of pro-choice and anti-abortion movements in international human rights fora, asking what happens to social movement claims when they reach international human rights courts. We answer the question through a detailed description of a single case, Gretel Artavia Murillo et al. v. Costa Rica, decided by the Inter-American Court of Human Rights in 2012 but with ongoing repercussions for abortion rights, given its authoritative interpretation of embryonic right to life. Through our analysis of Artavia Murillo, we show how legal mobilization before international human rights courts moderates social movement claims within the legal arena, as rivals respond to one another and argue within the frame of courts’ norms and language.

Introduction

Feminists and religious conservatives across the globe have increasingly turned to courts in their battles over abortion. Yet while a significant literature describes legal mobilization on abortion issues, it tends to focus on domestic scenarios, and even then often fails to consider the effects of movement-countermovement confrontation in the courts on social movements’ framings of key issues.1 More generally, socio-legal literature on legal mobilization focuses on movements’ use of legal claims (whether limited to litigation or espousing wider cultural approaches to rights language), with little attention to the specific nature of movement-countermovement engagement in court.2 Social movement moderation has been linked to the effect of organization rather than to the effect of recourse to law or to engagement with opponents in court.3 In this article, we consider the effects of this contentious engagement of pro-choice (feminist) and anti-abortion (conservative) movements in international human rights fora. We ask what happens to social movement claims when they reach international human rights courts and how these courts react to the presence of movement and countermovement claims. These are the key questions addressed, rather than the much broader issue of effects of contentious engagement on social movements themselves.

In order to answer these questions, and given the dearth of literature on contentious engagement in international courts, we adopt a case-study methodology, relying on detailed description to help us navigate the impact of contentious engagement in the international arena on social movement claims as they go transnational. The selected case study is Gretel Artavia Murillo et al. v. Costa Rica, decided by the Inter-American Court of Human Rights (IACtHR) in 2012, but with ongoing repercussions both in Costa Rica and throughout Latin America. We base our analysis of the case, and of movement and countermovement claims, mainly on documentary sources, offering a close reading of the 39 amicus briefs submitted by individuals and organizations, as well as press and other secondary documentation on the case and the organizations and individuals involved. This documentary review is complemented with a snowball sample of interviews of eight lawyers who had participated in the case at different stages, either writing amicus briefs for feminist organizations or serving as clerks in the inter-American human rights system.

Artavia Murillo is a case of singular importance in the inter-American human rights system. In Artavia Murillo, the IACtHR ordered Costa Rica to lift its unique ban against in vitro fertilization (IVF), rejecting Costa Rica’s argument that embryos had personhood and full human rights following article 4(1) of the American Convention on Human Rights Convention (henceforth the American Convention). Together with Karen Attala Ruffo v. Chile (on parental rights for gay people), it is one of only two sexual and reproductive rights cases that have completed the process from domestic tribunals all the way to the IACtHR, and it clearly shows the trajectory from domestic jurisdiction to the regional human rights system, and back.

The reference to the right to life in Artavia Murillo, ostensibly about IVF, quickly transformed it into a landmark abortion case. The American Convention, as had been abundantly argued, is unclear on the point of the beginning of life. Article 4(1) reads, “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” Religious conservatives have long used the phrase “in general, from the moment of conception” to reject abortion rights and support the criminalization of abortion. Feminists, on the other hand, have insisted, first, that the actual meaning of the phrase is ambiguous because the process of life that begins at conception does not necessarily entail personhood and, second, that the words “in general” mean that states are free to protect the right to abortion.

Interpretation of the protection of the right to life afforded by the American Convention is of extreme importance for legal activism, both for religious conservatives and for feminists. It not only affects international law but also directly affects domestic law, since regional constitutional law in Latin America tends to integrate the provisions of the convention. Thus, the unprecedented opportunity to elicit an authoritative interpretation of article 4 from the IACtHR had immediate legal relevance for domestic battles over abortion rights in a region characterized by contradictory impulses toward both liberalization and increased criminalization.4

Hence, from its inception as a seemingly obscure dispute over access to IVF in Costa Rica, the case grew into a major abortion rights case in the Americas, given the potential impact of an authoritative interpretation of the right to life. Over the years, the list of amici in the case grew to read like a “who’s who” of transnational conservative and feminist activism for and against abortion rights: all the major regional activists are present, including nongovernmental organizations (NGOs), human rights clinics, and law professors. The large number of amicus briefs (for the inter-American human rights system) represented a wide range of positions on both sides of the international conservative Catholic and feminist divide, presented by an impressive range of influential regional and international actors, in turn indicating emerging alliances and strategies. The case became a landmark in the legal battle over sexual and reproductive rights between feminist and religious conservative (mostly Catholic) lawyers in the Americas. For feminists, Artavia Murillo was a triumph: the IACtHR adopted their interpretation of a progressive protection of human life in utero, linked to the protection of the pregnant woman’s health and well-being, and excluded rights for embryos outside a female uterus. For religious conservatives, it was a serious setback to a concerted effort to convince the inter-American human rights system that the American Convention is in fact “a pro-life treaty,” a position that has influenced Costa Rica’s reluctance to date to implement the IACtHR’s ruling. In the following sections, we describe the unfolding of the case, the social movement actors that mobilized for and against the ban, and the final decision and its implications. We focus in particular on the moderating effect of legal mobilization.

Costa Rica bans IVF as a violation of the right to life

In January 1995, news broke that the first “test tube baby” had been successfully conceived in Costa Rica, the result of the work of a single private clinic that first brought IVF to Costa Rica. The news was met with condemnation, particularly from the country’s Catholic Church hierarchy and congregations, an important factor given that Costa Rica’s 1949 Constitution establishes the Catholic Church as the official state church. That same year, Pope John Paul II published a major encyclical, Evangelium Vitae, which insisted that human life was a sacred gift from God from its beginning, that embryos had the same dignity and right to respect as a child born, and that discarding embryos killed innocent human creatures and was morally unacceptable.

In March 1995, the Costa Rican Ministry of Health adopted a decree that regulated IVF for the first time. This decree stipulated that up to six embryos could be transferred into the woman’s uterus at a given time and specifically limited the intervention to heterosexual couples who were married or living in civil unions. Conservatives challenged the decree before the Constitutional Chamber (Sala IV) of the Costa Rican Supreme Court of Justice.

The conservative challenge wielded traditional Catholic arguments aligned with Evangelium Vitae, but precluding religious references. The claimant was Hermes Navarro del Valle, legal counsel for the Costa Rica Catholic Bishop’s Conference.5 In his brief, Navarro asked the Constitutional Chamber to declare unconstitutional the Ministry of Health’s decree and the procedure of IVF, as they violated the right to life of the embryos discarded during the IVF procedure. The argument built on the view, widely and transnationally disseminated by Catholic scientists and lawyers, that human personhood begins at the moment a distinct chromosome emerges from the encounter of a human egg and sperm. The biological product of conception thus defined deserves the respect and consideration due to a human being.

In 2000, after five years of deliberation, the Constitutional Chamber banned IVF in Costa Rica, agreeing with the plaintiff that life begins at conception, that this life has personhood as well as human rights within Costa Rica’s legal system, and that the surplus embryos produced by IVF procedures had dignity and human rights that were violated by IVF. The conservative ruling precluded any reference to religious authority but reflected the Catholic Church’s position as described above. Additionally, the court extensively cited the American Convention and other documents produced within the inter-American system, interpreting them to insist on the existence of personhood and full human rights from the moment of conception.

Plaintiffs take their case before the Inter-American Commission on Human Rights

In 2001, 12 Costa Rican couples brought a case before the Inter-American Commission on Human Rights (IACmHR), claiming that the ban violated their rights to family, equality, and non-discrimination. The case was not brought as part of a focused litigation campaign but rather filed by former patients of the Instituto Costarricense de Fertilidad—married, heterosexual couples denied access to IVF following the 2000 ruling. In 2004, the IACmHR admitted the case.

Over the next six years, transnational activists—conservatives as well as feminists—and the IACmHR itself would slowly come to understand the relevance of Artavia Murillo for the wider struggle around abortion rights. The IACmHR received a handful of amicus briefs during this period: three for the claimants (presented by the Center for Reproductive Rights in 2004, the Allard K. Lowenstein International Human Rights Clinic at Yale Law School in 2005, and the University of Toronto in 2009) and two for the defendants (submitted by Human Life International in 2005 and the University of St. Thomas School of Law in 2008). Amici mobilization around the case was still weak.

The IACmHR declined to address the Costa Rican (and Catholic) argument that life—and thus full human personhood and rights—begins at conception. In its final report on the merits of the case in 2010, the IACmHR attempted to find a middle ground and skirt the issue of abortion rights by avoiding an interpretation of article 4, focusing instead on IVF.6 It decided unanimously that the Costa Rican ban violated the rights to private life (article 11) and to family life (article 17), arguing that there were less restrictive alternatives to protect the right to life. It also linked the case to regional practice, pointing out that Costa Rica was the only country in the Western Hemisphere to enforce a total ban on IVF, thus opening a door to delinking the case from abortion and abortion rights, since there is no similar consensus on the criminalization of abortion. The case could then remain as decided by the IACmHR or, following the system’s procedure, be referred to the IACtHR for a binding judicial decision.

Neither feminists nor religious conservatives were pleased with the IACmHR’s report. Feminists were concerned that it opened the door for an authoritative IACtHR interpretation of article 4 as recognizing embryonic personhood, precisely because the IACmHR avoided the issue and linked the case to regional practice, which criminalizes abortion. Conservatives were concerned that interpretation could go the other way, and two leading legal figures in the regional anti-abortion movement, Ligia de Jesus and Álvaro Paúl, published separate law review articles in 2011 examining article 4 and arguing that it included a clear right to life for the unborn and recognition of legal personhood for embryos.7 Both camps braced for an IACtHR decision, which was inevitable given Costa Rica’s defiance of the orders contained in the report.

Transnational activist networks mobilize before the Inter-American Court of Human Rights

Costa Rica accepted the decision but never implemented the recommendations. This spurred the IACmHR to take the case to the IACtHR. In submitting Artavia Murillo to the IACtHR, the IACmHR argued that the case raised issues of inter-American public order, meaning it had important implications for a wider understanding of the rights protected by the inter-American human rights system. Specifically, the IACmHR argued, the case referred to the scope and content of the rights recognized in articles 11 and 17 (privacy and family life), but the question in everyone’s mind was abortion.

It was before the IACtHR that Artavia Murillo became a major case for both feminist and conservative transnational social movements, based for the most part out of the United States. Both were concerned with the IACtHR’s possible interpretation of article 4. Of the 39 amicus briefs presented in this case, 16 were clearly conservative and 13 clearly feminist. The conservative briefs defended the IVF ban, arguing generally that life begins at conception and that embryos have a right to life; feminist briefs argued that the ban represented a disproportionate violation of a number of women’s and couples’ rights, especially the rights to health, to privacy, and to have a family. The remaining 10 amici took issue with conservative claims about scientific evidence, especially claims that the embryo was a person and that IVF was harmful to the health of both fetuses and women.

Many of the feminist briefs came from the United States and Canada, signaling these countries’ centrality to feminist legal mobilization. The Center for Reproductive Rights presented two: one put forward by its Latin American office and the other by its New York headquarters, written together with Rebecca Cook and Bernard Dickens of the University of Toronto. The Center for Reproductive Rights is the leading advocate for sexual and reproductive rights in the international arena, as well as a well-known domestic organization. Cook and Dickens both teach at the University of Toronto, and for many years Cook has co-directed the International Reproductive and Sexual Health Law Program. Two US universities with a history of feminist advocacy in the international arena also submitted amicus briefs: the American University and Yale Law School, both from their human rights clinics. The additional US-based amicus came from Catholics for Choice, originally a US-based NGO with a long history of confrontation with the Catholic Church’s positions on abortion and contraception.8

The case also activated feminist networks working on sexual and reproductive rights in Latin America. One amicus was submitted by an alliance of reproductive rights NGOs from Colombia, Mexico, and Argentina and from the Latin America branch of Ipas, based in the US. An alliance of sexual rights advocates in Brazil submitted another brief, as did a human rights clinic at the Universidad de los Andes in Bogotá and the Colombian human rights NGO Dejusticia. Two professors at the Universidad Torcuato di Tella in Argentina, one of whom had studied at the University of Toronto, also submitted a feminist amicus. Only two feminist amici came from Costa Rica, and both seem to have links with the same small NGO the Colectiva por el Derecho a Decidir.

A number of briefs were presented by liberals who were not directly affiliated with the feminist movement but who were supportive of IVF as a safe and ethical medical procedure. Perhaps the most impressive of these amici was submitted by the Latin American Federation of Obstetric and Gynecological Societies, an umbrella organization based in Panama that includes several national chapters and thousands of members. According to our interviews, further liberal briefs were submitted by human rights organizations in response to requests from feminist activists who employed a deliberate strategy to diversify the profile of the briefs supporting the plaintiffs.

On the conservative side, the transnational amici also outnumbered the Costa Rican briefs, revealing the importance of the case for the regional and global anti-abortion movement. Again, US-based organizations were quite present, but so were organizations with links to the Vatican. These briefs for the most part trace networks that adopt Catholic definitions, framing them not as religious arguments but as bioethics. The first transnational amicus emphasizing Catholic bioethics was signed by a group of Italian politicians and bioethics professors who teach at the Catholic University of the Sacred Heart in Rome, as well as representatives from the US-based organizations Human Life International and the Fund for the Defense of Bioethics, in addition to a little-known Mexican association Crece Familia. The presence of Human Life International and the Fund for the Defense of Bioethics is particularly significant: the former, like the Population Research Institute, which participated in various amici, was founded by US Catholic priest Paul Marx to promote anti-abortion views around the world.

The remaining briefs further illustrate the strong presence of Catholic bioethics as the main conservative legal mobilization frame against IVF. This is a recurrent reference in the amicus brief signed by a group of Peruvian bioethics specialists from a Catholic University and the brief signed by a group of Peruvian NGOs linked to the Population Research Institute. Two additional amici were submitted by conservative legal scholars—the first by Álvaro Paúl and by the directors of a number of Catholic US-based NGOs (the Alliance Defense Fund, now Alliance Defending Freedom; C-Fam, the leading Catholic NGO at the United Nations; and Americans United for Life). Paul is a professor at a Catholic university in Chile and a respected expert in the inter-American legal system. The second was submitted by Ligia de Jesús, professor at the Ave Maria Law School and author of several academic articles defending conservative Catholic interpretations of the American Convention, together with Rafael Nieto Navia, professor at the Pontificia Universidad Javeriana in Bogotá (a Jesuit university) and a former judge of the IACtHR. Their transnational links with Catholic bioethics networks might explain some of the other amici, such as those from the president of the Spanish Association of Bioethics and Medical Ethics, from bioethics activists in Mexico, and from a pro-life doctors’ association in Guatemala.

Catholic views on the beginning of human life are the common denominator of many of the conservative amicus briefs in the Artavia Murillo case, as evidenced by their affiliations and arguments. However, many of the claims made in other fora are not present in the amici: for example, none expressed the conservative hostility toward feminism so often framed in the critiques that feminist ideas promote both “gender ideology” and a “culture of death.”9 Similarly, feminist organizations eschewed the more polemic historical arguments about achieving women’s liberation through reproductive freedom. The next section analyzes this moderating trend affecting both movements.

The moderating effect of legal mobilization

The majority of the arguments presented in the briefs were moderate in comparison with each movement’s framing of the issues for its supporters: a deep religious faith for conservatives, and a strong commitment to women’s liberation for feminists. Our conclusion is that all actors moderated their claims before the IACtHR.

Feminist lawyers, usually adamant in their rejection of female stereotypes and their central defense of female autonomy, strategically appealed instead to women’s rights to health, to privacy, and to a family, as well as the right to equality of couples and infertile women. The arguments defending abortion rights appear in the feminist amici in a more moderate form than they do in general feminist theory and social movement claims. For example, the briefs never mention the right to choose pregnancy as a human right derived from the rights to autonomy and privacy, and they generally avoid making the link between the IVF case and abortion rights. The Center for Reproductive Rights, for example, describes reproductive choice as the core of its organizational vision: “We envision a world where every woman is free to decide whether and when to have children; where every woman has access to the best reproductive healthcare available; where every woman can exercise her choices without coercion or discrimination.”10 In this vision, abortion is a constitutional right as well as an international human right.

Besides avoiding hardline positions defending abortion as a human right, the feminist briefs also generally avoided the movement’s usual emphasis on women’s points of view and experience. The only references in this regard were quotations from the plaintiffs themselves, some of whom appealed to stereotypical notions of women in order to characterize the harms caused by the IVF ban—for example, that women’s natural urge to motherhood was harmed by the ban. These arguments remained unchallenged in the feminist briefs.

In addition to the exclusion of autonomy arguments, and the appeal to motherhood, legal language and techniques of interpretation—especially appeals to proportionality and balancing—act as a moderating force in framing the feminist amici. There is an inherent moderation in saying that one’s claims must be balanced against those of the other side, or that all laws, adverse or favorable, must be applied by taking into account a proportionate relation between the rights protected and the harms caused by this protection. Hence, the value of human life since conception must be protected, but only in a fashion consistent with the rights of pregnant women carrying this life in their uterus. The Center for Reproductive Rights argues in its amicus:

While States may take certain measures in order to advance an incrementally-growing interest in developing human life, this is different than granting legal rights prior to birth because the granting of legal rights creates an inherent conflict between the rights of women and the embryo. The latter characterizes the Costa Rican Supreme Court’s decision, which states that even before gestation begins, the embryo is already entitled to all human rights to such an extent that these rights trump and nullify women’s fundamental human rights. This characterization is impermissible under international human rights norms, as it inevitably infringes upon women’s human rights as well as the principle of proportionality.

Proportionality and balancing are similar in that both call for interpretation that recognizes the importance of the different rights in question and demand that the protection of one right (in this case, the right to life) be respected in such a way that the harm to other rights (in this case, family life, autonomy, and privacy) is proportionate to the benefits of protecting the first right. These techniques of legal argumentation entail recognition of at least some of the claims of the counterpart and address them directly without completely denying their validity. This is probably the strongest feature of the feminist briefs in terms of adapting to the culture of the inter-American human rights system, which has frequently emphasized proportionality as an important form of interpretation of the rights protected in its treaties.

The strength of feminist appeals to proportionality can be directly traced to the feminist movement’s high level of comfort with the culture of international human rights, signaling another distinct feature of the international women’s movement: its legalism. The claim that women’s rights are human rights has been a decades-long staple of the transnational feminist movement, which has argued that the defense of sexual and reproductive rights derives from international human rights treaties. The orientation toward rights claims includes feminist appropriation of Catholic appeals to human dignity, the right to life, and the right to a family. This appropriation is especially striking in the case of the right to a family—a conservative aspiration that in these briefs becomes closely linked to the right to opt for IVF.

Conservative activists also moderated their claims, eschewing an important portion of their mobilizing frames in order to litigate before the inter-American human rights system. Perhaps most importantly, they excluded all mention of faith, God, and church. The importance of faith, however, is clear in the websites of the conservative NGOs that submitted briefs. Human Life International, for example, describes itself as “pro-life missionaries.” This is its description of its mission:

[Human Life International] defends both the God-given life and dignity of all human persons from conception until natural death, and the natural family based on marriage—the fundamental human institution defined by a lifetime union between one man and one woman that is open to life. As followers of Jesus Christ and members of the Catholic Church, our goal is to build a Culture of Life and of Love around the world through education, outreach, and advocacy.11

These types of religious claims do not appear in the conservative amici, in line with trends among conservative Catholic lawyers who have eschewed from their arguments the religious basis of their conviction of the full humanity and personhood rights of human life in utero.12 In addition, other frames closely linked to the Catholic Church—such as the references to “gender ideology” and the “culture of death,” as well as general references to good and evil, to love and prayer, and to God and his will—also disappeared from the framing of the IVF issue. References to nature were decoupled from the Catholic link between nature and God as creator, and to a natural law that would predate state law and be outside state purview.

Instead, the conservative amici focused on developing two lines of argument. First, they defended the embryo’s right to life from conception, arguing that conception occurs at the moment of fertilization, when distinct DNA emerges. Second, they used arguments referring to appropriate techniques for legal interpretation of article 4. The references to the right to life are repeated across the different briefs, while the arguments on legal interpretation (the recourse to the original intent of the framers, and respect for states’ margin of appreciation of human rights treaties) are found in the amici submitted by conservative legal scholars. Originalist arguments are central to the conservative turn in US constitutional law, and margin-of-appreciation doctrine has a similar function in the European Court of Human Rights. However, these associations are contextual, as there is nothing inherently conservative in appealing to them; they are not, however, the dominant form of interpretation in the inter-American human rights system, which has overtly rejected both originalism and margin of appreciation. In this context, they served conservative claims by showing that the intent of the framers had been to allow the prohibition of abortion through article 4 and by giving Costa Rica the margin of appreciation needed to pass the IVF ban. In conclusion, conservatives, like feminists, used more moderate arguments than those in seen on their websites and in street protests against abortion.

Outcomes: Feminist triumph but careful response to conservative arguments

In 2012, the IACtHR ruled against Costa Rica, ordering specific remedies for the victims and, more generally, as a measure of non-repetition, the repeal of the ban on IVF. The court concluded that the prohibition of IVF violated the rights mentioned by the IACmHR in its report: the rights to personal integrity, to personal liberty, to privacy, and of the family. It also went further, arguing that the right to privacy includes reproductive autonomy and linking sexual and reproductive health to the right to the benefits of scientific progress, to conclude that these rights were nullified by the IVF ban.

The court’s judgment clearly inclined toward the interpretations put forward in the feminist briefs. While it does not mention or cite the amici in its ruling, it does accept the argument of incremental protection of embryonic life, ruling that the embryo is not a rights-holding person but that the state does have an interest in protecting embryos, an interest that accrues gradually during the course of pregnancy. It also concurred with the liberal medical amici that conception takes place not at fertilization but rather at the implantation of an embryo into a woman’s body. It rejected the argument that personhood is present in a fertilized ovum, linking it to the attribution of “metaphysical attributes” to embryos and explaining that the adoption of such religious conceptions would imply imposing a certain type of belief on people who do not necessarily share in these beliefs. It specifically said that the phrase “in general”—referring to article 4’s protection of the right to life “in general, from the moment of conception”—could not be interpreted in defiance of the need to protect the rights of pregnant women, precluding balancing and proportionality.

In terms of forms of interpretation, the decision specifically rejected the margin-of-appreciation doctrine, arguing that “this Court is the ultimate interpreter of the Convention” and also adopting feminist arguments that rejected this possibility. Likewise, the decision did not openly reject a historic interpretation of the treaty but rather echoed the Center for Reproductive Rights’ interpretation of the travaux preparatoires as excluding the possibility of fetal personhood. It also rejected originalism by saying that historic interpretation coexisted with the recognition that treaties are living instruments that evolve.

After more than two decades of failure, the transnational feminist movement finally succeeded in securing a ruling from the IACtHR that could potentially be used to support national and regional struggles to decriminalize abortion. Similar positions had previously been taken by constitutional courts in Mexico, Argentina, and Colombia, but the fact that the movement’s and countermovement’s legal activism eventually prompted the IACtHR to define article 4(1) of the American Convention signaled the fundamental importance of the regional human rights system for national battles over abortion, contraception, and assisted reproduction. Because IACtHR decisions are binding on the 22 countries that have ratified the American Convention, Artavia Murillo has effects for legislation and policies regulating access to emergency contraceptives, therapeutic abortion, embryonic stem cell research, and reproductive health care more generally.

Domestically, the IACtHR did not completely settle the matter, although it tilted the scale in favor of feminist and liberals who opposed the ban. In September 2015, Costa Rican President Luis Guillermo Solís, following a public follow-up hearing on the case in the IACtHR, issued a presidential decree finally regulating IVF. However, on February 3, 2016, the Constitutional Chamber of the Costa Rican Supreme Court declared the decree unconstitutional because it violated the legal reserve that meant that only the legislature could regulate in human rights matters, including IVF. While apparently deciding only on matters of competency, the Constitutional Chamber insisted that this was a human rights issue concerning the rights of both the mother and the embryo.13 A few weeks later, on February 26, the IACtHR responded by issuing additional orders demanding compliance; the issue remains open to contestation.14

Conclusions

Despite its slow pace in the inter-American human rights system, litigation has increasingly become a focus for social movement activists who attempt to secure favorable interpretations or framings of human rights instruments. In contrast to other judicialized rights disputes in the inter-American human rights system—for example, on indigenous rights, where movement activists confront the state—in sexual and reproductive rights, transnational movements and countermovements directly engage each other.

Our conclusion shows that the moderating effect of movement-countermovement engagement in court extends to the international arena. Similar to patterns within the United States described by Reva Siegel, in the context analyzed here, actors discipline and shape their claims into reasoned legal arguments that are intelligible to officials in the inter-American human rights system and its own forms of legal arguments.15 Part of this intelligibility has to do with the formality and rules of appellate argumentation in courts generally, which emphasize legal analysis. This article contributes to the literature on legal mobilization on abortion issues, which tends to focus on domestic scenarios and fails to consider the dynamics of movement-countermovement confrontation in courts.

Artavia Murillo is significant in that it forced the movement and countermovement to engage with each other’s claims to a far greater extent than had previously occurred. It also signaled the growing conservative legal mobilization and the secularization of previously faith-based invocations by, for example, deploying arguments from the field of bioethics to bolster claims that life begins at conception. The feminist movement, in turn, was obliged to engage with the arguments of countermovement conservative lawyers, even incorporating aspects of their arguments into their own briefs in order to refute the countermovement’s broader claims about the American Convention and its interpretation. In general and at least in the short term, this contentious engagement served to legitimate the inter-American system, even though the outcome of Artavia Murillo clearly favored one side—a side that already had significant, albeit contested, influence in the system.16

However, there is an open possibility of backlash, and also of delegitimation of the IACtHR. It must be noted that while the IACmHR’s 2010 report recognizes the importance of the right to life argument in Costa Rica’s case (making an explicit reference to the Constitutional Chamber’s decision, which says that the embryo has the same right to life as a human person), the IACtHR—while careful to acknowledge opposing arguments—rejected the Constitutional Chamber’s interpretation of article 4. In doing so, it rejected the possibility that national courts could be authoritative interpreters of the American Convention, an issue that could lead to backlash from national judiciaries. Paúl and de Jesus have published law review articles lamenting Artavia Murillo and signaling a possible loss of legitimacy of the IACtHR stemming from the decision, while at the same time attempting to steer the system back to more conservative interpretations and to limit the impact of the court’s ruling as precedent for abortion rights in the region.17 This could signal further backlash in domestic courts if they adopt Paúl and de Jesus’s arguments and if the case for a national margin of appreciation of the American Convention gains clout within the states party to the convention.

Nonetheless, in the broader context of the inter-American human rights system, adopting the affirmation that article 4 gave the embryo a prenatal right to life and upholding Costa Rica’s ban would have been a significant challenge to the status quo, not only in terms of the regional system but also in terms of the other international systems with which the IACtHR finds itself in dialogue, particularly the European human rights system.

In this article, we have identified a moderating effect of contentious engagement within the inter-American human rights system, an effect that may possibly extend to both feminist strategizing after the decision and to conservative reactions to it. As we have shown in our analysis of this case, in which we focus particularly on the amicus briefs presented by different organizations and individuals, the conservative side limited its references to faith and its close relation to the Catholic Church hierarchy and dogma, insisting instead on originalist and textual interpretations of the American Convention, as well as on scientific evidence of the beginning of life and of harms allegedly derived from IVF. On the feminist side, activists limited their emphasis on women’s autonomy and reproductive choice, instead insisting on balancing rights and proportionality and recruiting liberal scientists to disprove the scientific evidence brought forth by conservatives. At the end of the day, feminist arguments won the case, but it was the more moderate frame, not the original claims for autonomy and abortion rights, that prevailed within the inter-American human rights system. Further research is needed in order to explore the relationship between feminist strategies in court (which in this case clearly involved moderation in order to maximize the possibilities of a favorable judgment) and broader social movement repertoires and actions on sexual and reproductive rights beyond the courts, which may entail moderation or radicalization, depending on other factors, such as internal movement dynamics and opportunity structures. Certainly, feminist activists in countries throughout Latin America are reflecting on how to use the Artavia Murillo judgment in future domestic litigation. At the same time, issues of backlash and domestic compliance by Costa Rica are still unfolding.

In conclusion, we argue that evidence from Artavia Murillo shows that legal mobilization before international human rights courts moderates social movement claims, as rivals respond to one another and as they argue within the frame of courts’ norms and language. It is clearly difficult to generalize from a single case and a limited set of materials; further research should explore this effect in other cases and courts, including the particularities of the international system, where, unlike with national courts, there is no clear engagement with national publics and disputes but rather with a more diffuse transnational arena.

Acknowledgments

The authors thank Santiago Vernaza and Emilio Lehoucq for indispensable research assistance, as well as Paola Bergallo, Marina Brillman, Siri Gloppen, Oscar Parra, Bruce Wilson, and two anonymous reviewers for providing comments on previous versions of this article. Research was funded by the Norwegian Research Council through the project Sexual and Reproductive Rights (SRR) Lawfare: Global Battles over Sexual and Reproductive Rights, Driving Forces and Impacts (project number 230839), based at the Centre for Law and Social Transformation, Christian Michelsen Institute, Bergen.

Julieta Lemaitre is a professor of law at Universidad de los Andes in Bogotá, Colombia, and PRIO Global Fellow.

Rachel Sieder is a senior research professor at CIESAS in Mexico City and associated senior researcher at Christian Michelsen Institute, Bergen, Norway.

Please address correspondence to Julieta Lemaitre. Email: jlemaitr@uniandes.edu.co.

Competing interests: None declared.

Copyright © 2017 Lemaitre and Sieder. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.

References

  1. For exceptions analyzing movement and countermovement dynamics, see, for example, L. Greenhouse and R. Siegel, “Before (and after) Roe v. Wade: New questions about backlash,” Yale Law Journal 120 (2011), pp. 2028–2087; M. M. Feree, W. A. Gamson, J. Gerhards, and D. Rucht, Shaping abortion discourse: Democracy and the public sphere in Germany and the United States (Cambridge: Cambridge University Press, 2002); A. Ruibal, “Movement and counter-movement: A history of abortion law reform and the backlash in Colombia 2006–2014,” Reproductive Health Matters 22/44 (2014), pp. 42–51; D. Rohlinger, “Framing the abortion debate: Organizational resources, media strategies and the movement-countermovement dynamics,” Sociological Quarterly 43/4 (2002), pp. 479–507.
  2. For a useful review of the legal mobilization literature, see L. Valhala, “Legal mobilization” Oxford Bibliographies, Political Science (2011). Available at http://oxfordindex.oup.com/view/10.1093/obo/9780199756223-0031. See also C. R. Epp, The rights revolution: Lawyers, activists, and supreme courts in comparative perspective (Chicago: University of Chicago Press, 1998); M. McCann, “Law and social movements: Contemporary perspectives,” Annual Review of Law and Social Sciences 2 (2006), pp. 17–38.
  3. L. B. Edelman, G. Leachman, and D. McAdam, “On law, organizations, and social movements” Annual Review Law Social Sciences 6 (2010), pp. 653–685.
  4. P. Bergallo and A. Ramón Michel, “Abortion,” in J. F. González-Bertomeu and R. Gargarella (eds), The Latin American casebook: Courts, constitutions and rights (New York: Routledge, 2016), pp. 45–46.
  5. D. Chavarría Hernández, “Reloj biológico es el principal enemigo de parejas que esperan por tratamiento de FIV,” Seminario Universidad (January 23, 2013). Available at http://semanariouniversidad.ucr.cr/pais/reloj-biolgico-es-el-principal-enemigo-de-parejas-que-esperan-por-tratamiento-de-fiv.
  6. Inter-American Commission on Human Rights, Report No. 85/10, Case 12361, Gretel Artavia Murillo et al (in vitro fertilization) (July 14, 2010).
  7. L. de Jesús, “Post baby boy vs. US developments in the inter-American system of human rights: Inconsistent application of the American Convention’s protection of the right to life from conception,” Law and Business Review 17 (2011), pp. 435–485; A. Paúl, “Constitutional conceptions the unborn and the American Convention,” Loyola University of Chicago International Law Review 4 (2011–2012), pp. 210–247.
  8. P. Miller, Good Catholics: The battle over abortion in the Catholic Church (Berkeley: University of California Press, 2014).
  9. For gender ideology, see Congregation for the Doctrine of the Faith, Letter to the bishops of the Catholic Church on the collaboration of men and women in the Church and in the world (2004). Available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20040731_collaboration_en.html. For culture of death, see Pope John Paul II, Encyclical letter Evangelium Vitae (1995). Available at http://w2.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html.
  10. Center for Reproductive Rights, Our mission. Available at https://www.reproductiverights.org/about-us/mission.
  11. Human Life International, Our mission. Available at https://www.hli.org/about-us/our-mission.
  12. J. Lemaitre, “Catholic constitutionalism on sex, women and the beginning of life,” in R. Cook, J. Erdman, and B. Dickens (eds), Abortion law in transnational perspective (Philadelphia: University of Pennsylvania Press, 2013); J. Lemaitre, Laicidad y resistencia: Movilización católica contra los derechos sexuales y reproductivos en América Latina (Mexico City: Instituto de Investigaciones Jurídicas, Universidad Autónoma de México, 2013); J. M. Vaggione, “La ‘cultura de la vida’: Desplazamientos estratégicos del activismo católico conservador frente a los derechos sexuales y reproductivos,” Religião e Sociedade 32/2 (2012), pp. 57–80.
  13. L. M. Madrigal, “Sala IV anula decreto que autorizaba la fertilización in vitro y pide a diputados aprobar ley,” Elmundo.cr (February 3, 2016). Available at http://www.elmundo.cr/sala-iv-anula-decreto-que-autorizaba-la-fertilizacion-in-vitro-y-pide-a-diputados-aprobar-ley.
  14. Inter-American Court of Human Rights, Caso Artavia Murillo y Otros (“Fecundación In Vitro”) vs. Costa Rica, Supervisión de Cumplimiento de Sentencia (February 26, 2016).
  15. R. B. Siegel, Constitutional culture, social movement conflict and constitutional change: The case of the de facto ERA, Faculty Scholarship Series, Paper 1097 (2006). Available at http://digitalcommons.law.yale.edu/fss_papers/1097; R. B. Siegel and R. C. Post, Roe rage: Democratic constitutionalism and backlash, Faculty Scholarship Series, Paper 1136 (2007). Available at http://digitalcommons.law.yale.edu/fss_papers/1136; Greenhouse and Siegel (see note 1).
  16. A. Ruibal, “Feminismo frente a fundamentalismos religiosos: Mobilização e contramobilização em torno dos direitos reprodutivos na América Latina,” Revista Brasileira de Ciência Política (2014), pp. 111–138; A. Ruibal, “Movilización y contra-movilización legal: Propuesta para su análisis en América Latina,” Política y Gobierno 22/1 (2015), pp. 175–198.
  17. L. de Jesús, “A pro-choice reading of a pro-life treaty: The Inter-American Court On Human Rights’ distorted interpretation of the American Convention on Human Rights in Artavia v. Costa Rica” Wisconsin International Law Journal 32 (2014); L. de Jesús, “The Inter-American Court on Human Rights’ judgment in Artavia Murillo v. Costa Rica and its implications for the creation of abortion rights in the Inter-American system of human rights,” Oregon Review of International Law 16 (2015); A. Paúl, “Decision-making process of the Inter-American Court: An analysis prompted by the ‘in vitro fertilization’ case,” ILSA Journal of International and Comparative Law 21/1 (2015), pp. 87–130.
 
Set your Twitter account name in your settings to use the TwitterBar Section.