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Sexual and Reproductive Rights (SRR) Lawfare: Global battles over sexual and reproductive rights, driving forces and impacts

Alternative title: Rettstrid om seksuelle og reproduktive rettigheter: gobale kamper om seksuelle og reprodutive rettigheter, drivkrefter og effekter

Awarded: NOK 9.1 mill.

The project 'Sexual & Reproductive Rights Lawfare: Global Battles' has analyzed the global political struggles for - and against - sexual and reproductive rights (SRR) over the past decade. An international, multidisciplinary research group (law, social sciences, psychology) used qualitative, quantitative, experimental and computational methods to examine what separates the SRR conflicts taken to the courts (lawfare) from those played out politically. The goal was to understand the drivers of SSR lawfare, and the attitudinal and material consequences. Rights concerning reproduction, sexual orientation, gender identity and expression (for lesbians, gays, bisexuals, trans, intersex and queer/LGBTIQ persons) have great - but variable -political force. Abortion, criminalization of homosexuality, same-sex marriage and change of legal gender are central to electoral struggles and coalition formation. They are brought before courts in all parts of the world and we have seen rapid shifts in attitudes and legal status. But it is a multifaceted picture: In Latin America, abortion is the big issue, in Africa it is homosexuality. Some countries have a gradual liberal or conservative trend, in other countries liberalization is followed by politicization and backlash. In 2018-19, homosexuality was decriminalized in India, Angola and Botswana and abortion laws were liberalized in Ireland and Mexico. At the same time, SRR opponents are gaining ground, often in alliance with right-wing populists (Brazil, Poland, USA). In Uganda, the 2009 anti-homosexuality bill, rejected by the Supreme Court in 2014, is ever relevant. SRR advocates more often use the courts while anti-SRR activists focus more on political channels, but we also see the opposite: anti-abortion activists in Scandinavia take conscientious objection cases to the courts, while pro-abortion battles in Ireland and Argentina were conducted as democratic processes with broad deliberation (researchers in the project contributed expertise) Using the project's Lawfare framework to analyze different cases and consider them against the database of litigation, it becomes clearer how the actors' opportunity structures (OPs) shape their strategies: In general, both pro- and anti-SRR actors mobilize politically and socially where possible and use the courts primarily when they lack political and public opinion support (closed social and political OP). But litigation is not always the last resort. Where the judicial OP is open and SRR activists have tradition/experience for legal mobilization, and suitable resources (eg Costa Rica, Colombia), litigation is attractive even with relatively open social / political OP, both alone and as part of a wider mobilization repertoire. This is especially true for pro-SSR actors, who find support in international law and liberal legal values more easily and who often have limited social and political mobilization capacity. The Anti-SRR side generally has greater social and political mobilization capacity, including through strong roots in faith communities, and potential for political alliances. They also often have holistic, long-term strategies for changing basic social structures such as courts and school systems. In recent years, many alliances have been formed between (religious) anti-SRR actors and right-wing populist parties (Brazil, USA, Poland, Hungary). These share an anti-liberal agenda. In Africa, we see similar alliances with authoritarian leaders trying to retain power by mobilizing around African tradition and heterosexual masculinity. While political leaders who want pro-SRR reforms in conservative contexts tend to go "under the radar", politicizing SRR is a key tool and goal of anti-SRR activists and anti-liberal politicians, making these alliances particularly potent. Regarding the consequences of SSR lawfare, an hypothesis in the literature is that liberalizing reforms in conservative societies triggers counter-mobilization and backlash, especially if they come through the courts. Some of the case studies seem support this. E.g. in Uganda, the politicization of homosexuality followed pro-LGBT court rulings. Yet, we see equally strong politicization in countries without such litigation (Zimbabwe, Tanzania, The Gambia). And some African countries with liberalizing reforms, legislative and cdgements (South Africa, Mozambique) have seen liberal shifts in public opinion after the legal change. In India, where the Supreme Court de-criminalized homosexuality in 2018, and allowed very late abortions, the 2019 election showed no signs of politicization. What drives politicization/backlash appears not to be SRR lawfare, but power-seeking anti-liberal politicians who gain political power and direction in alliance with anti-SRR actors, in contexts with potential to activate (latent) anti-SSR attitudes. But while liberal lawfare may not trigger backlash, it can contribute to the reigning in of the courts' independence.

Outcomes: - improved understanding of dynamics and effects of politicized legal contestation (lawfare) through conceptual, theoretical and methodologic development, and interdisciplinary analysis of previously understudied contexts - networks of senior and junior scholars and practitioners, spanning Europe, the Americas, Africa and India, and law, health- and social sciences - capacity-building for younger scholars, and scholars from the global south (co-authorship, networks, Bergen Exchanges, 'Effects of lawfare' PhD course) - sparking new, related projects - the project has also contributed to capacity-building for target groups of uses, including (judges, activists, and policymakers) though targeted symposia, and participation in project seminars and the Bergen Exchanges Impacts: Project participants have contributed as experts to abortion law-reform processes in Latin-America and been central litigation processes to advance sexual and reproductive rights in India and Africa.

This project explores the consequences of court-centered legal mobilization in the normatively charged and hotly contested battles sexual and reproductive rights (SRR-lawfare). The project seeks to understand how the effects of lawfare are linked to its n ature and causes, within broader institutional, political dynamics, social and cultural contexts, and thereby advance (conceptually, methodologically and empirically) the broader field of socio-legal studies concerned with law and social transformation. The project will examine SRR lawfare through a rigorous comparative study of battles over abortion and LGBTI rights in thirteen countries (Argentina, Colombia, Costa Rica, Germany, Mexico, Nepal, Norway, Philipines, Poland, South Africa, Uganda, Uruguay a nd USA). The case selection was predicated on identifying a sample of countries in which courts validated progressive, conservative, or no lawfare; a mixture indicates that there have been progressive and conservative decisions. The cases will be analysed within a common framework, testing the same hypotheses and using a mixed quantitative-qualitative methodology. This will enable systematic comparative analysis of the causes and effects of SSR lawfare, based on structured thick descriptions and quantitat ive data. The project topic is of major social importance. How judicialization of such moral legal battles affect attitudes and social conflict dynamics, and the social legitimacy of the legal institutions dealing with them, are of urgent concern. Effect s of lawfare on SRR also deserve special attention on account of the potential implications for gender relations, the dignity, health, autonomy and wellbeing of vulnerable groups, and for social policy, particularly healthcare, education, public finance, civil law and family law. The project will be anchored at the Department of Comparative Politics, UiB, strengthening current research activities at the department and promoting its internationalization

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FRIHUMSAM-Fri hum og sam