Allan Maleche is the Executive Director of the Kenya Legal and Ethical Issues Network (KELIN)
Dipika Jain Dipika Jain is Professor of Law, Vice Dean (Research), Vice Dean (Clinical Legal Education) and the Director of the Centre for Justice, Law and Society at Jindal Global Law School (JGLS), India
Mindy Jane Roseman is the Director of International Law Programs and Director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School
The discussion centred around the use of evidence for legal, human rights and SRHR action in each of the speaker’s respective situations. Given the ever-changing global, regional and national contexts, they discussed how the nature of evidence and knowledge changes over time and lastly, what we need to effectively use evidence and knowledge for legal and human rights action.
Eszter:
We are in a world today, in different global, regional, local, community-based spaces, where there are various challenges that threaten to turn back progress in securing the sexual and reproductive health and rights of current and future generations. We also have a common understanding that the political environment is such that, it has generated a strong anti-gender and anti-sexual and reproductive health and rights movement that challenges basic sexual and reproductive rights, such as rights to decision making and autonomy in relation to accessing abortion, promoting the criminalization of reproduction and sexuality, limiting choices related to sexuality, gender expression, access to contraception and reproductive technologies. This movement questions the legitimacy of comprehensive sexuality education across the world and allows discriminatory practices such as forced sterilization, conversion therapies and criminalization of our sexuality and reproductive choices.
All of these topics will come up in this conversation, and I will start with a first round of questions. I am turning to our guest speakers with our first question which is ‘How does evidence, based on your experience, knowledge and participation in the SRHR movement in various spaces, influence legal action?’
I’m turning to you, Dipika, welcome to our conversation. How do you see the role of evidence in the SRHR movement from your perspective?
Dipika:
Good evening and good morning, everyone. Thank you so much, Eszter for inviting me into this conversation. It is an honor to be in conversation with Mindy and Allan on this issue.
In the realm of sexual and reproductive health and rights, evidence serves as a cornerstone of effective litigation and advocacy. Strategies and arguments are formed on the basis of evidence, and it is the foundation upon which decisions are finally made. Since sexual and reproductive health and rights issues are inherently political and polarizing, evidence plays a crucial role in individual legal claims as well as in shaping wider public discourse, which in turn affect judicial decisions and public opinion. Evidence of different types has been utilised in such cases, given their unique roles, which range from medical records, statistical data and qualitative research to personal testimonials and expert testimonials.
With this context, there are three essential ingredients for effective evidence generation. The first is the presence of social science and multidisciplinary empirical research, which provides in-depth perspectives on the societal import of legal decisions. Such evidence has been effective in spearheading health policy reforms, based on empirical data on maternal mortality rates and lack of access to quality and affordable healthcare. The practical implications of punitive legal frameworks illustrate the immediate need for change. For instance, evidence on the harmful effects of the criminal legal frameworks against pregnant persons, their families and healthcare providers, and evidence on how criminal laws restrict access to safe and legal abortion services can form a compelling strategy to advocate for abortion decriminalization, This can be supplemented with Constitutional and human rights arguments, giving primacy to pregnant persons’ decisional autonomy as well as the varied needs of marginalized groups who are affected by the restrictive laws.
Evidence has been integral in judicial decision making in different countries, such as evidence submitted to the Supreme Court of Colombia regarding 3000 women who were facing prosecution in the country for ‘illegal’ abortions. This evidence played an integral role in laws around abortion and judicial reform in Colombia. Further, in Nepal, evidence was gathered in 1997 showing that 80 abortion cases were reported to law enforcement, showing that pregnant women had been prosecuted under Nepal’s criminal abortion laws. Reproductive Health Matters published a peer review article containing this evidence, whose detail and diversity paved the way for judicial understanding of system-wide issues and showed the critical need for legal reforms.
The second essential ingredient to effectively generate evidence is the consideration of public opinion. Public opinion has the potential to impact judicial decisions, particularly in cases where there is broad societal support for specific issues. In Colombia, for instance, a public poll conducted in 2017 in 31 capital cities showed a positive public perception regarding women’s reproductive autonomy as well as an overarching rejection of criminalization.
The third and final ingredient for effective evidence generation is fostering grassroots support, which must be constructed through community involvement. This aspect is critical to sustainability, through continued momentum and the short and long-term protection of legal gains.
Therefore,. evidence generation in pursuance of legal strategies must be cognizant of the varying experiences and realities of diverse groups. This can be done by granting primacy during the advocacy journey to perspectives from marginalized communities, including but not limited to people of color, caste marginalised persons, trans and gender diverse persons, persons with disabilities, among others. Marginalised groups face unique obstacles in accessing sexual and reproductive health services, including transport and logistical barriers, economic barriers due to a dearth of affordable healthcare, and widespread stigma and discrimination.
Eszter:
Thank you, Dipika. Now I’m turning to Allan Maleche. We have been working together for many years, you have been very active in the global space, challenging human rights standards regionally, in Africa, and leading legal and human rights action. How do you see the use of evidence in your legal action, whether it’s in the local space or global space? How do you see the the use of evidence in legal action?
Allan:
Thank you so much for having me here, Eszter, and thank you to my fellow podcast members, Dipika and Mindy. It’s a good conversation, and I just want to build on from what Dipika has spoken about, because what she’s spoken about resonates to how KELIN approaches this conversation of using evidence for legal and human rights, sexual reproductive health rights actions. I think for us, what we have learnt over a period of time from mitigating and doing legal and policy advocacy, is that data is extremely pivotal in legal and policy advocacy, especially in guiding reforms and also shaping court cases and in terms of guiding reforms. We have realized that quantitative data, like statistics on health outcomes, say how many women are accessing post abortion care, is extremely important to be able to highlight the impact of certain laws and regulations that may limit people from accessing safe abortion.
And then, on the other hand, qualitative data, such as the personal testimonies of either healthcare workers who are arrested by police officers for offering a safe abortion, or actual women who are arrested and taken to police stations while they are bleeding for seeking to procure a safe abortion from a healthcare worker, all play crucial roles in terms of shaping the thoughts. The arguments and the ability to convince the judiciaries, lawmakers policy makers on why they need to make certain important cases. So, I’m not only looking at access to abortion, but this has also applied in the case that we worked on addressing the issue of forced sterilization of women living with HIV in Kenya, where we were able to work with partners to collect the lived experiences of 40 women who are living with HIV and demonstrate how the health system was disadvantageous to them, denying them an ability to make an informed choice as to whether they wanted to have a permanent form of family planning or not, and by documenting this particular stories, we are able to demonstrate the systematic failures of the health system.
And this report, which was certified by local research institute or a local IRB, was also used as part of the evidence in our landmark court decision that was able to be the first in the world to be able to come to terms that a woman can’t be discriminated on the basis of HIV and subjected to forced sterilization. And so, it’s important for us to continue collecting this data, but we must also appreciate that there are challenges in getting this data, in ensuring that the evidence is comprehensive, and addressing any data gaps and the effective use of evidence definitely can directly impact legal outcomes and drive policy changes by highlighting critical issues and supporting arguments for reform. So, we strongly continue to use evidence and collect evidence and try to use that evidence to shape the legal and policy arguments. Back to you. Eszter, thank you for the opportunity.
Eszter Kismodi
Thank you. Allan. Mindy, I’m turning to you. You have been working in the international space and now also actively involved in U.S advocacy on different sexual and reproductive rights issues. How do you see the role of evidence in international standards development, and where do you see the opportunities? What is your experience?
Mindy:
Thank you, Eszter and Sexual Reproductive Health Matters for the podcast forum, and it’s wonderful to be in conversation. I thought Dipika really set out a good context for both what Allan and I’d like to address: the evidence that we’ve used to influence the development and content of international human rights standards.
I’m going to focus specifically on the UN Human Rights Committee’s General Comment 36 on the right to life. It considered a broad range of issues, but impressively included paragraphs related to abortion: to what governments must do to ensure that the right to life of pregnant persons was protected. For those of you who are not familiar with the work of the committee, it is a independent expert body that through general comments, explains to governments what they must do to meet and apply the rights contained within that convention through their national laws and policies and so forth. In order to develop their General Comments, the committee solicits input from state parties, from UN agencies, other experts and civil society. Organizations such as the Center for Reproductive Rights, UNFPA, and people like me affiliated with universities, submitted statements where we laid out the evidence for the committee on how criminal and other restrictive laws on abortion actually increased maternal mortality and morbidity. The more criminal law and other restrictions, the more death and disability—something that could be addressed by the General Comment on the Right to Life.
Now, of course, there were also plenty of NGOs and governments that claimed they were protecting life and health by criminalizing and restricting abortion; but it was not the life and health of the pregnant person at issue. Rather it was the life of the “fetus” –a claim which does not register in international human rights law. Ultimately, the committee took all of these submissions under advisement and eventually issued its General Comment. While from an SRHR perspective, it certainly could have been stronger, it did reflect all of the evidence presented, and it does state, among other things, “that restrictions on the ability of women or girls to seek abortion must not inter alia jeopardize their lives,” and it questions strongly whether criminal law is ever appropriate to regulate this area. This is a clear norm constraining the use of criminal law in the context of abortion regulation.
So why is this important? The Covenant on Civil and Political rights is one of the most widely ratified human rights treaties. Having authoritative interpretation on Article 6 (the right to life) creates a powerful tool for advocates to use with their governments, legislatures, media, and popular society at large to argue for the reform restrictive laws and to advocate to improve access to services. It can mobilize action, assuming those state and civil society actors value their commitments to and the content of human rights. Having the details that were bolstered by the evidence that the whole SRHR community was able to deliver to the committee was vital input for the committee and the General Comment I was extremely gratified to be part of the process. And the role SRHM plays in disseminating a commentary about General Comment 36 is a critical part of its use value.
Eszter:
Thank you, Mindy. And as you are speaking, I’m just reflecting on the development of many General Comments with UN treaty monitoring bodies engaging with other UN agencies for standard development. And I cannot not recognize that what has probably worked 20 years ago is not necessarily working now. What evidence resonated for parliamentarian action in Hungary or working with UN Special Rapporteurs, is not necessarily working today. For example, with the UN Special Rapporteur. We believed that the role of UN Special Rapporteurs has always been to uphold human rights standards and give rights-based interpretation. This was the case with all Special Rapporteurs on the right to health, and we just have to live with the report. In the recent report by the Special Rapporteur on Violence against Women, she not only equals prostitution to violence, but also misuses evidence and doesn’t uphold the human rights standards in her report.
That makes me ask the next question to this panel which is, how do you see, in the legal action that you are engaging with, the changing role of evidence? As you are engaging with parliaments, with Ministries of Health, with international bodies, you may need new strategies, you may need new forms of evidence. How do you see the changing role of evidence in legal action? Dipika, I’m turning to you.
Dipika:
Thank you so much, Eszter, for this very important question.
The role of evidence in legal action is dynamic and evolving. In the context of SRHR, legal reform, judicial decisions and changes to societal perspectives are creating new barriers. Therefore, to make sure that SRHR are upheld and protected, legal strategies must be flexible and responsive in nature, which can promptly address new obstacles or opportunities. Legal strategies will be adaptable if there is a deep understanding of political, legal and cultural backgrounds, and there is an ability to swiftly mobilize resources and collaborators.
There is a need for unique legal strategies to be employed, as a result of burgeoning opposition to reproductive rights in many countries, including India. Arguments and debates around reproductive rights need to be reframed, as human rights language is increasingly being used by oppositional groups, who utilise such rhetoric to oppose reproductive freedoms. Anti-rights grounds attempt to hide their heteropatriarchal agenda by using rights and morality-based language, such as the ‘foetal right to life’, wanting to ‘protect life’ or ‘defending the family’. This cooption of human rights rhetoric is completely antithetical to its traditional role as key to furthering reproductive decisional autonomy, discrediting legitimate human rights advocacy, and gravely impacting reproductive justice.
At this juncture, advocacy may depend on innovative evidence generation. Such evidence generation needs to consider international human rights law, create unique constitutional arguments, and, most critically, document opposition group strategies. Human interest stories can influence judicial decisions, for instance through the media, or through the inclusion of interviews and testimonials from affected persons – and can effectively offset efforts by oppositional groups to restrict reproductive rights.
Ultimately, inclusivity and intersectionality are essential to adaptable legal strategies. The broad import of sexual and reproductive rights beyond access to abortion and contraception must be considered, predicated on larger issues of bodily and decisional autonomy, gender parity and social justice. The incorporation of diverse and larger perspectives may create a greater impact amongst varied and marginalized groups, leading to unity and strength in the movement. Legal advocacy in the modern changing landscape of SRHR needs to consider the needs and rights of all persons. Adaptable legal strategies, creative evidence generation and the gathering of knowledge are critical for rights advancements in an egalitarian manner. Back to you, Eszter.
Eszter:
Thank you, Dipika. Allan, how do you see the changing nature and evolution of evidence, and do you see any global and regional trends of how evidence can be used strategically and what kind of evidence we need?
Allan:
Thank you so much. Another very important question.
Indeed, there is a lot of evolution that’s going on with evidence and evidence in the legal and policy context has greatly evolved from the basic data collection that we do to very sophisticated methods, including digital tools and data analytics that is happening, and so we have seen situations where this advancement has enabled more precise and actionable insight, which is which is very crucial in both litigation and advocacy that we do on matters relating to sexual reproductive health and rights.
For instance, we have at KELIN seen the use of using phones and mobile apps for people to report cases of stock outs of contraceptives, for people to report when human rights violations are happening, and some of this information is then collected on a central portal, and someone is able to analyze that information to help demonstrate if something is systematic, to help provide a rapid response if one is needed in a particular situation. And some of this evolution of data collection techniques have helped strengthen legal arguments policy arguments by providing robust, data driven evidence that can effectively be used in court or even in boardrooms to challenge what Dipika has rightfully spoken about. The issue of the opposition and rights claims that are brought from by the anti-rights movement.
So, we see this evolution.
And coming to the global and regional trends, I think I must say we need to appreciate the fact that there is a great push currently for community generated evidence through participatory action research. This need is increasing, and in a current project we are working on that is looking at how the use of digital technology affects the ability of young people in Kenya, Ghana, Colombia and Vietnam to be able to access sexual reproductive health services and information, we have received vital information around, what are their insights as young people on using the apps? What are the insights in terms of the human rights violations they face? And through the research that we are doing, we’ve then been able to flesh out information that is helping some of our policy recommendations to both who to the Ministries of Health in the respective countries, to the regional bodies, and even to civil society, but you’re also seeing evidence that’s coming from these conversations that would be able to inform our future litigation in terms of how the affected communities are being affected by the anti rights movement, but also by the shrinking space of our civil society.
And then there’s also a trend where it’s no longer top-down approach, whereby it’s the global bodies dictating what needs to happen at the grassroot level. But we are also seeing a shift in the evolution that there’s a lot of voice coming, where the lived experience at the grassroot level is actually being used and adapted to be able to inform the changes that need to happen at the global and regional levels. And I think this way of working then promotes the right to this approach, where it’s participatory, where it involves all people, and it’s not just a top-down approach. So, I think it’s important for us to recognize these changing trends. It’s important for us, especially in this day and age of time, to be very alive to ensure that evidence that is collected remains compelling and effective in countering misinformation and supporting robust legal strategies. Back to you, Eszter.
Eszter:
Thank you, Allan. As you are talking, I just wanted to remind the listeners that Dipika, Mindy and Allan are part of the SRHM family. Mindy is an Associate Editor, Allan is on the Editorial Advisory Board, Dipika is part of the steering committee of the South Asia Regional Hub of SRHM and a global collaborator, and we are working hard in the SRHM Journal to create articles and resources that stretch the boundaries of evidence and power that exist in the evidence creation world, so that the communities and the voices of the communities are considered to be evidence as well. And we have a decolonial approach to evidence that will be part of the next podcast.
And now I’m turning to you Mindy, and where you are sitting, the unthinkable has happened. And despite all available evidence and human rights standards, reproductive rights were taken away in the U.S. So, what happened? And what’s happening to the evidence that would not allow such an action to happen in a democratic society? What’s happening with the evidence in the context of abortion rights in the U.S?
Mindy
Yeah, indeed. I do just want to add a small clarification. The Supreme Court, in overturning Roe, threw everything back to the States. A number of states within the United States have even strengthened access to abortion and have legislated l shield laws to protect healthcare providers, resident in their state, who may be providing care to people who come from outside of the State or through telemedicine. But of course, there are many states which have regressed in terms of a range of sexual and reproductive rights issues, abortion just one.
What I want to do in answering your question, is to pick up a little bit on what Dipika and Allan were speaking to about: that on the one hand, we need creative strategies, and the other, that there is the resurgence of a very conservative, heteronormative notion of reproduction and sexuality and gender. In response, the movements in the United States, need to regroup and think beyond court based strategies to secure reproductive rights. Certainly, there were many actors who were working on legislative reform and political mobilization. But so much energy was poured into the courts…and then what happened in the United States at the Supreme Court? It didn’t happen in a vacuum. For Roe to be overturned, the politics behind the appointment of Supreme Court justices had to shift. It was a long-term project. No one was hiding it. All it took was for former President Trump’s to to appoint three justices to the Supreme Court who were in favor of overturning Roe. The constitutional rights and the legal fabric supporting access to abortion the United States was very thin indeed.
Now, to the issue of evidence. What the majority in Dobbs did was cherry pick historical facts to make an argument that the right to abortion could not be interpreted to be part of the US Constitution. They repudiated the reasoning in Roe that the right to decide was found in the right to privacy (itself not expressly articulated but considered part of the due process clause a substantive, fundamental matter deeply rooted in the history and tradition of the United States. There is much to say here, but basically the majority in Dobbs made a hash of history. They found that abortion was a crime at the time of the founding of the US, ergo, there was no history or tradition for allowing its legalization. That slavery was legal, and married women had no legal personhood at the time of the founding of the US Constitution seemed to be lost on the majority. Rather, they handpicked historical facts and concocted a story in which abortion was always and forever criminal. And, as if to repudiate the fact that times change, and that people who previously had no civil (or human) rights, now do, they also claimed that the United States was an outlier in allowing for liberal access to abortion. The majority claimed that onlya handful of countries, Canada, North Korea and China, allowed abortion post-viability. All of this was patently wrong, but there is no direct recourse and now we have this incredibly biased decision that then overturned Roe. So much has turned on the Supreme Court.
But Dobbs is not the only thing that’s faulty with a court-based strategy to secure Constitutional and Human Rights, particularly related to SRHR, because courts limit their review of laws. Legislatures take testimony, gather evidence, data, all kinds of things in their efforts to legislate and articulate a legitimate state purpose and a rational relationship. This is the process that is due and provided it is followed; courts have very little leeway in reviewing the content of the law. So long as the purpose is legitimate and there is a rational basis for the content of the law (unless the law infringes on a fundamental right or discriminates on the basis of race or sex –for the most part), the court’s review is limited. And now, abortion access is no longer a fundamental right; and the US Supreme Court never acknowledged that abortion restrictions discriminated on the basis of sex. Therefore, in the United States a court-based strategy (at the Federal level) ought not be paramount, although it ought not be jettisoned. Rather, the site to secure, promote, and protect SRHR is political and cultural. What the SRHR movement(s) needs need to do right now is to mobilize in a much more political way and secure rights through political processes.
Eszter:
So, Mindy, you have really lead us to the conclusion of this conversation which is about, how can we be forward looking, and how can we do what we need for the human rights movement and legal action? Mindy, you already stated several actions and somehow Allan, you also moved us to that direction. And just the last round with Dipika and Allan, do you have any reflections? What do we need? What kind of tools, what kind of societal and other actions do we need to revitalize and use rights- and evidence-based knowledge depending on where we are and how the political changes are happening?
Dipika
Thanks, Eszter, drawing from Allan and Mindy’s comments, evidence must be legitimate and powerful, as well as strategically used, to be effective in advocacy efforts and further substantive and sustainable change. Evidence must be generated through cross-movement collaboration and be interdisciplinary in nature to contend with the interrelatedness of social justice issues. Further, it is important to note the evolving ways in which knowledge is being produced and disseminated, along with an increasing emphasis on the value of interdisciplinary research, indigenous knowledge systems and minor knowledges, which have been disregarded or oppressed. The politics of knowledge production are important to consider, and the present move towards inclusivity and diversity in forms of knowledge acknowledges that diverse perspectives are essential to the pursuit of justice. More types of evidence are being considered as important in the legal realm, which can facilitate progressive legal reform.
Finally, most critically, it is important to note the disadvantages inherent to strategic litigation, despite its pivotal role in advancing legal and constitutional rights. Firstly, strategic litigation may result in a situation where courtroom victories may outweigh the perspectives of affected communities. This can create a divide between the experiences of affected persons and legal strategies that are purportedly being employed to help them. Therefore, strategic litigation must always, at its foundation, be based on real life experiences and wishes of affected communities. Finally, legal strategies must be complemented with other types of advocacy efforts that target systemic issues, for substantive and sustained change.
Eszter
Thank you. Over to you Allan.
Allan
Thank you Eszter and thank you for the conversation, a lot of wisdom that has been shared.
I’ll just say I’ve got four broad areas that I’ll quickly address. The first one is we still have to remember the issue of data quality and accessibility that is important to be effective in court cases and policy reforms, we must find a way to ensure that the evidence must be robust and reliable, by ensuring that the data is accurate and accessible to all stakeholders, including legal teams’ policy makers, is very essential. For making strong cases and advocating for effective reform. So, this is one of the things we must continue doing if we want to effectively use evidence and knowledge to be able to influence SRHR positively.
The second one for me is capacity building, especially providing, where possible, training for activists, community-based groups, on how they can be able to interpret some of the evidence based on the data that has been collected and then use that evidence to apply it. And this includes understanding how to present evidence effectively in court and for influencing policy, especially when you’re dealing with sometimes what people would see as a complex medical matter, in the case of safe abortion, in the case of surrogacy, in the case of IVF, or even in the case of sterilization of women living With HIV, how are you able to build the capacities of lawyers and different players to be able to present that evidence in a manner that is palatable to the judiciary system and in a way that it makes sense? And I think it’s important that we secure funding for evidence collection, and this is an important call to funders to see, even as it supports strategic indication, even as it supports policy reform, whether it’s on safe abortion, whether it’s on sterilization, whether it’s on surrogacy, whether it’s in the use of AI in the SRHR space, they need to ensure that there’s a steady stream of high quality data that is collected for the necessary legal and advocacy work, and for us to have that steady stream of highly quality data, we definitely need for that to be funded.
The third issue for me is collaborating and networking. And Dipika has spoken to this, the interdisciplinary research, the need for academic institutions to partner with civil society and communities. The need for communities to partner with the media, the need for the media to partner with experts, especially experts who understand the law, experts who understand the medicine, will enhance the quality and the scope of evidence that will be collected and communication so that collaboration is extremely important because it ensures that the evidence is comprehensive, well supported, and this will always be vital for the success of court cases and impact policy advocacy.
I want to conclude by saying that when we have all this going on, you have the data quality and its accessibility. Of our capacity building you have collaboration and networking; you then want to ensure that the advocacy and communication is effectively happening. Clear communication of evidence to policy makers and the public is extremely critical if we want to shift any minds, crafting compelling advocacy messages based on your audience and based on solid evidence will really help in influencing the policy and legal arguments that we make, and this will actually see us to have the necessary reforms to appear more persuasive and more impactful. Thank you for having me Eszter, and thank you to my fellow panelists.
Eszter:
Thank you very much for this conversation which is a direct follow up to our meeting that SRHM partners organized in Morocco in June, 2024 and we are looking forward to more articles, conversations, podcast, meetings, collaborations and other actions coming from this direction.
Thank you very much and have a nice day and evening and good night to everyone who has been listening. Thank you to the panelists.