Part 1: description of search term results from key word search of empirical literature

The majority (n=55) of the papers were regarding abortion law and abortion care availability, with violence against women (n=10), female genital cutting/mutilation (n=5), maternal health (n=3), general SRH (n=3), Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) rights (n=2), banning Traditional Birth Attendants (TBAs) (n=2), child marriage (n=2) and women’s rights (n=1) coming next.

Most of these articles explore the gaps between law and practice. However, many articles discuss multiple constructs represented in figure 1. For example, some studies assess why implementation did not fully reflect the current law and how these failures lead to the formation of new claims demanding improved service provision.

The abortion articles focus largely on strategies for bringing the law more in line with human rights obligations and public health guidance and implementation of the law, including the legal advocacy process contributing to the passage of a new law,27–29 the extent to which the law is realised or circumvented, reasons for this and/or how to improve implementation30–62 and whether the law seemingly led to the desired social outcomes.63–67 Other abortion-related articles probe more specific reasons for lack of implementation, namely lack of knowledge among key stakeholders or ideological opposition among community members or providers47 61 68–78 and/or law or practice related to conscientious objection.79–81

Each of the five articles regarding Female Genital Cutting/Mutiliation (FGC/M) focuses on the implementation of the law, including whether it is implemented and why it is not fully implemented.24 82–85 Similarly, the child marriage articles discuss the extent to which laws prohibiting child marriage have the desired effect86 and the reasons for failure to implement the law.87 The LGBTQ+ rights articles describe the rationale and impact of legal strategies16 and the gap between constitutional protections and reality.88 The three articles related to maternal health focus squarely on the application of a legal strategy, the lessons learnt and the impact.89–91 Similar to the other issue areas, the articles regarding SRH broadly explore lack of knowledge about rights and entitlements among community members92 and gaps in implementation,93 with one paper exploring the role of codified customary and religious law in undermining implementation of statutory laws and policies regarding SRH.94 We also identified an article describing the efforts of Non-Governmental Organizations (NGOs) to use litigation to criminalise certain SRH services.95

We maintained a separate TBA category because these articles were about the use of criminal law to stop a behaviour, in contrast to the other maternal health papers, which addressed entitlements enshrined in law. Similar to the other articles regarding the use of criminal law to change SRH-related behaviour, the two TBA articles explored the extent of implementation and barriers to better implementation.96 97

We grouped articles using the terms gender-based violence (GBV), Intimate Partner Violence (IPV), sexual assault and domestic violence under the broader category of Violence Against Women (VAW). These articles were somewhat more heterogenous than the articles regarding other aspects of SRH, as they examined whether a new law affected the prevalence of IPV,98 access to justice for survivors,10 99–101 a civil society effort to influence the law102 and the relationship among politics, state capacity and access to justice.103–106

The articles related to all regions of the world, namely the Americas (n=18), Asia (n=17), the Middle East and North Africa (n=3) and sub-Saharan Africa (n=44). Certain countries were especially well represented, including Colombia (n=8), Ethiopia (n=10), India (n=6) and South Africa (n=11). These countries have abortion laws that are comparatively less restrictive and/or that have been changed in the last decade, and many of the articles examined the extent to which legal abortions were available in these countries. Finally, it is important to note that certain journals were well represented among the papers identified for inclusion, namely the International Journal of Gynecology and Obstetrics (n=10), Reproductive Health Matters (now Sexual and Reproductive Health Matters) (n=10) and Reproductive Health (n=8). The remainder of the articles spanned a diverse set of global health, development and law journals.

A few papers explicitly pose a research question similar to ours—regarding the extent to which a particular legal accountability effort yielded the desired impact. Using the Gloppen framing, Kaur finds that while public interest litigation regarding maternal health was successful in court in India, ‘success in the social sense is proving the most challenging to achieve’. At the time Kaur wrote her article, neither the central nor state governments had responded to a recent court decision by issuing instructions regarding women’s access to maternity care benefits, also the government had not taken steps to address the broader knowledge and implementation challenges related to maternal health entitlements the court had identified.90 In contrast, a study published in the grey literature regarding an Indian Supreme Court judgement related to government-run sterilisation camps found some improvements in terms of clinical quality and respect for patient rights following the issuance of guidelines issued by the Supreme Court.107

Some papers assess whether or not the law itself is consequential. For example, a paper assessing to what extent the criminalisation of certain kinds of violence against women affected the prevalence of this violence found that assessing impact was challenging, as increased awareness may have led to higher reporting, such that rates of reported violence were difficult to interpret.98 A paper analysing the association between legal grounds for abortion in national law and unsafe abortion in 160 countries found a ‘clear pattern’ with countries where abortion is permitted on broad indications having lower incidence of unsafe abortion and lower mortality from unsafe abortion,64 a finding confirmed by Henderson et al.108 On the other hand, Anton et al, Briozzo and Briozzo et al found that Uruguay may be an exception; the chief contributor to reduced unsafe abortion was the adoption of a harm reduction approach to abortion care, rather than the change in law that eventually followed the application of harm reduction.63 65 66 Similarly, a socioecological study on SRH outcomes in Nigeria found that states where customary and religious law were codified had poorer SRH outcomes, customary and religious law essentially watered down the salience of statutory law.94 Three papers explored the concept of ‘alegality’, finding that safe abortion services were being provided in certain contexts with some level of government tolerance, irrespective of the fact that it was not permitted by law.35 53 59

Part 2: article analysis

We identified seven key factors that shape the efficacy of legal accountability efforts. Table 4 provides an overview of the key issues identified in article analysis, which we go on to discuss in detail.

Ways laws or court decision formulated

Many researchers explained that law is not a dichotomous variable; ‘law’ or ‘no law’ does not adequately capture the legal status of a behaviour or entitlement. The framing and phrasing of a particular law is beyond the scope of our review, as there is an entire body of literature on this topic that was not covered by our search terms. However, we describe relevant findings here, insofar as articles relating to legal accountability describe how the language of a court decision or a law can facilitate or undermine implementation. First, several articles describe administrative or procedural hurdles enshrined in law that stymie the exercise of particular rights or access to justice or even violate human rights themselves, such as the need to obtain forensic ‘proof’ of rape, including forced virginity testing of the survivor.37 101 109

In addition, some laws were described as lacking specificity, such that they are hard to enforce. For example, laws may not clarify which FGM/C practices are being criminalised85 or what falls under the health or other exceptions for abortion.35 47 48 52 110 A well-known decision in Kenya found that, despite resource limitations, the government had a core obligation to provide access to the right to maternal health, but the decision failed to order concrete actions to realise these obligations, an omission that some observers felt ensured that the decision had limited impact.91 However, some constitutional scholars assert that courts should not be providing such specific direction, as policy-making and legislating are functions of other branches of government.111 Regardless, with few exceptions, courts rarely impose positive duties on governments of the breadth and depth needed to address the social determinants of SRHR inequities, legislative action is required.

Some authors pointed out that laws may be so distant from reality that they are not enforceable and/or they do not actually support their stated aim. For example, one law criminalising FGM/C among minors assumes that women over age 18 years can consent to this procedure, ignoring the powerful and pervasive gender norms that structure social relations.85

On the other hand, laws can be written in a way that supports implementation. For example, when it was liberalised, the Ethiopian abortion law stipulated that women’s word was sufficient to prove rape, removing fear of liability from abortion providers.27 Similarly, the South African Constitutional Court’s decision mandating access to treatment to prevent HIV transmission from mother to child required that the government come up with a justifiable plan of action.112

Finally, laws exist in a broader legal ecology, as laws relate to one another. One law can undermine another. For example, vigorous enforcement of a law outlawing prenatal sex determination has undermined access to legal abortions.54 113 The laws do not actually conflict in this case, but the enforcement of one law is politically visible and beyond what is stipulated in law and policy, causing health providers to eschew the provision of abortion services so as to avoid clinical audits, fines and other costly outcomes associated with the implementation of the law outlawing prenatal sex determination.54 113 In some settings, personal status laws, which aim to enshrine cultural mores into law, contradict or undermine SRH-related laws. The laws themselves may not specify which law supersedes the other, and judiciaries may fail to provide clarity.114 115

Access to courts

It is intuitive that the constitution, whether or not direct access to the Constitutional Court is allowed for complainants, and the way the court system functions shape the case law courts issue.116 The South African Constitution, for example, makes their Bill of Rights justiciable and grants the courts wide latitude to allow public interest and class action cases, as well as flexible remedial powers.117 Similarly, the constitutions of several countries in Latin America enshrine health rights and allow comparatively easier access to citizens who believe their rights have been violated.118

Authors describing the evolving legal status of various SRH services and family law in Nepal noted that the make-up of the Supreme Court and the way that the Court functions facilitated decision-making that was in line with evolving international SRH recommendations. The Court created space for input by civil society and the public health community by: mandating the establishment of expert commissions that provided reports to the Court and to the other branches of government, actively using briefs filed by amici (‘friends of the court’) and inviting expert testimony. This informed the Court’s decision-making and engaged and exposed civil society to the workings of the Court, facilitating more rapid uptake of the Court rulings.119

Criminal law

Violence against women, the banning of TBAs and child marriage and abortion are often addressed in criminal law. With the exception of abortion, all of the articles on these topics assessed the social impact of criminal law. Some authors concluded that criminal law was necessary, but not sufficient, arguing that designating a behaviour as criminal created an enabling environment for subsequent activities to stop a practice. For example, Shell-Duncan et al and Nabaneh and Muula found that while the act of criminalisation itself may not be the most effective way to stop FGM, it creates an environment where stopping FGM is possible,24 83 while Partners for Law and Development, after reviewing case studies on application of the child marriage law, concluded that ‘the true value of law lies in opening possibilities of negotiation and dialogue’.120 When complemented by social services, education, training of law enforcement and awareness raising, among other activities, criminal law can effectively function as both a preventive mechanism and a route for survivors to access justice.83 85

At the same time, researchers also note that criminal law does not necessarily influence the environment that enables SRHR rights violations, particularly in contexts where people do not trust the judiciary, police or the government more broadly or where there is a lack of complementary strategies to address deeply embedded hierarchies and norms and to provide support to victims and survivors.100 In the case of FGM/C, some argue that criminalisation can drive behaviour underground, engendering further public health harm as families avoid seeking needed medical care.24 82 85 Articles relating to VAW in particular describe how poor access to justice, lack of policies to address the drivers of violence and the normalisation of violence mean that criminal law can be immaterial for those who experience gender-based violence. For example, anthropological research revealed how efforts to educate women about their rights did not address the gendered labour dynamics that made women and their families dependent on a male breadwinner.121 Moreover, survivors and their families may not wish to send their own family members to the criminal justice system.122 Some countries’ policies or national strategies to address violence against women identify the healthcare system as a key entry point for access to justice for people who have experienced violence in the home, but the health system too may lack the capacity to provide confidential, compassionate care and referral.123 Finally, humanitarian environments, particularly conflict and postconflict settings, can present extraordinary legal, administrative, logistical and cultural challenges for people seeking justice, as well as for the establishment of mechanisms to bring justice to affected communities.124 125

Though we found little on people with disabilities in the peer-reviewed literature, materials suggested by the expert advisors detailed how people with disabilities, particularly women, face significant obstacles in accessing the judicial system, as well as in obtaining the desired result from the judicial system. Though most countries do not collect disaggregated data, ‘invisibilising’ the problem, women with disabilities are generally disproportionately affected by gender-based violence, which can be pervasive and normalised.126–128 In addition to barriers people with physical disabilities face in actually presenting at and interacting in police stations and courtrooms, advocates have described lack of knowledge and widespread stigma surrounding disability among judges and advocates, such that some judges do not consider women with disabilities to be credible reporters regarding abuse they have experienced; lack of awareness or financial resources among affected women; perceptions in communities and the judicial system that women with disabilities cannot be violated as they are diminished women; lack of support for sign language interpretation and other alternative communication strategies and lack of availability of adequate medical and forensic services.127 129 130

Finally, it is important to note that criminalised populations, such as commercial sex workers, injecting drug users, undocumented migrants and others, may lack recourse to the remedies provided in law de jure or de facto,131 132 as they are criminalised themselves.14

Some critiques aver that not only can criminal law have no or mixed impact on the behaviours it seeks to prohibit but also recourse to criminal law itself can engender further harm. First, criminal law can be misapplied or abused, such that it reinforces social hierarchies.133 For example, NGO researchers have found that child marriage laws may be invoked by parents who object to consensual relationships that their children are in, while situations where children are forced into unwanted unions are not brought to the police.134 Relatedly, higher status families can be protected from laws relating to child marriage and violence against women by virtue of social connections, political power and financial resources, while lower status families are charged.120 135 Criminalisation also contributes to the growth of carceral systems and their attendant harms, often at the same time as the state withdraws from providing other needed services.136

In sum, there were differences among the studies in findings, but broadly speaking, they share the conclusion that criminal law is not sufficient and that in some contexts, it may induce further harm. This is not a novel finding. Scholars assessing the role of rape and other criminal laws note that exclusive focus on criminal law ‘oversimplify(ies) the problem and the solution’.106

Cultural norms

The extent to which various laws are enforced is shaped by social and cultural norms and the distribution of power in a society.14 Many articles noted or described the ways that cultural norms, particularly patriarchy, undercut the social impact of legal accountability efforts.

In part reflecting the distribution of power in society, affected people themselves often do not know what their rights are. As a result, their lives may be unchanged by recent case or statutory law and they may not seek access to justice in cases of violations. Women, particularly poor, minority and otherwise historically oppressed groups of women, may not think of themselves as rights holders.137 If they do know their rights, they may face social censure for seeking remedies for violence from the judicial system, as this act is perceived as making a private, family matter public.115

Studies found that embedded norms that favour the supremacy of men at the household and community levels limited access to justice for GBV survivors,10 101 138–140 as well as compliance and enforcement of laws outlawing FGM/C54 83–85 and child marriage87 and promoting SRH more broadly.52 93 141 In some contexts, survivors may be actively discouraged from claiming their rights, such as family members and religious leaders stopping women from reporting domestic violence or even intervening with medical and judicial actors to stop cases from proceeding.138

Patriarchal norms also shape the response provided by the health sector, the police and others actors charged with ensuring implementation as norms permeate professional culture and bureaucratic routines.10 33 60 85 106 142 For example, police can exercise significant discretion in deciding what constitutes domestic violence and thus, in issuing protection orders and making arrests.127 In some contexts, police have reportedly been dismissive and/or violent, and if women do manage to make it to court, the court does not inform them of the decision taken.99 Specialised police to enforce VAW laws do not necessarily overcome these norms and can be further plagued by their inability to reach all areas of the country, leaving people without access in hard to reach areas.100

The judiciary can also make it challenging for survivors to seek justice. Authors describe that the judiciary can reflect and perpetuate gender norms and biases present in society at large, affecting their decision-making. For example, Lankenau described judges routinely asking women to produce medical certificates to ‘prove’ rape, though these certificates were not required by law.143 Similarly, judges may think that violence in the home and other harmful practices are social problems that should not be addressed by the judiciary.137 As a consequence, some judges prioritise men’s property interests over women’s safety and thus refrain from ordering abusive men to leave the home or to provide financial support to their wives/partners.142 In these examples and others, judges stereotype claimants, potentially leading them to misinterpret or to misapply the law.144 Gendered hierarchies of power also shape who is on the judiciary, with women and other historically oppressed groups typically not proportionately represented in high courts, if they are represented at all.137

We identified two papers that focused on social and cultural norms besides gender norms as such. Both papers emphasised the importance of directly eliciting and engaging existing norms when trying to create a legal accountability strategy, whether those norms relate to the Islamic religious position145 or to customary courts.140 This strategy can include ensuring the engagement of those affected by a law, such as consulting with TBAs about what laws and programmes might ensure that TBAs are referring women to medical care when required.83 97

Finally, we identified one paper that explicitly sought to assess whether laws were associated with changes in cultural norms; the authors found that improvements in the laws governing child marriage were associated with greater disapproval of intimate partner violence.146 Economists Aldashev et al propose a mechanism for these kinds of change; in situations where formal law and cultural practice conflict, marginalised groups may have the option of recourse to the judiciary. The law acts as a ‘magnet’, pulling the custom in a direction that is more favourable to marginalised groups.13

In contrast to the argument that the impact of litigation is undercut by the persistence of sociocultural norms, some papers argue that enshrining an element of SRH in law can create legitimacy that fosters social change, such as decisions resulting from public interest litigation related to LGBTQ+ rights in Chile and to women with HIV in Namibia.6 16 Naming something in law makes it visible, and for LGBTQ+ people, women with HIV, sex workers and other marginalised groups, it communicates that they are human beings and thus rights bearers,6 16 paving the way for further litigation and engagement with the legislative branch to establish their rights.6

Politics

Social and cultural norms play a key role in shaping the context for legal accountability efforts, as do politics at the global, national and community levels. Political processes and competition can reflect and influence social and cultural norms. For example, a paper assessing the trajectory of a law regarding VAW found that the original intent for passing a new law was partly political—to elevate the government’s legitimacy on the world stage.104 A few years later, political leaders’ strategy changed and they were more concerned with maintaining a strong alliance with conservative religious actors than international legitimacy, so they weakened the law.104 Similarly, implementation of laws may vary subnationally, as local politicians react to national level court decisions through the lens of their own political ambitions.147

Many papers concluded that a public health frame helped to lessen the influence of politics as well as social and cultural norms. Strategies that emphasised the morbidity, mortality and other undesirable outcomes associated with VAW, FGM/C and unsafe abortion illuminated a clear pathway for legal accountability.27 28 37 57 61 148 On the other hand, some authors pointed out that a narrow public health framing could weaken commitment to the broader social determinants of SRH, such as gender equity and human rights.149

Moreover, in contexts where the judiciary is more independent, recourse to litigation may be less politicised than legislation, such that advocates turn to the courts as the option that is more insulated from the short-term vagaries of politics.150 151 Even here, though, advocates need to consider political concerns when developing strategic cases, such as how judges and the public will interpret the case.16

In addition to politics, several papers addressed what they described as political will in ensuring the implementation of case and statutory law. Political will was shaped by particular individuals in leadership positions,60 as well as the government’s desire to meet public health objectives37 61 62 and international treaty commitments.28 Domestic political will may be less durable when significant support for the implementation of law or access to justice comes from external sources, particularly when external actors maintain procedural oversight.40 93 103 In extreme cases, external support for access to justice for SRH violations may crowd out domestic political will for other human rights and rule of law concerns, undermining the integrity of the judicial system as a whole.103

State capacity and resources

Norms and politics moderate the relationship between law and social outcomes. In addition, limited state capacity and resources were cited by the majority of the articles as an important driver of poor implementation of both civil and criminal laws related to SRH, though state capacity was the central concern in few articles. Articles described the ways that low capacity undermined the ‘roll out’ or the causal chain from law to practice, such as lack of guidance for operations or collaboration82 101 and health systems challenges outside of the remit of a given law, such as poor roads, poor coverage of health services, lack of social services and rude treatment by healthcare providers.58 82 96 145

State capacity to deliver high-quality SRH services is determined in part by the capacity and accessibility of the health system overall. Several studies concluded that SRH entitlements were more available in contexts where law and policy also provided for free services, for non-discrimination in the delivery of care, and where health facilities were relatively more accessible.47 96 97 In brief, they note that entitlements and prohibitions on undesirable social practices are less meaningful when the state and its services and remedies are functionally not accessible to citizens.

Litigation in response

As suggested by figure 1, claims making can be an ongoing, iterative process. We identified two key approaches in the literature: (1) legal accompaniment to ensure the implementation of existing law and, (2) legal advocacy strategies to further refine case law, to make it more expansive or to make it more limited.

First, some NGOs provide ‘legal accompaniment’ or legal empowerment strategies to help individuals to obtain services to which they are legally entitled. Community paralegals, lawyers and others accompany people through administrative processes to obtain services or to contest the denial of services.29 60 In addition to helping individuals to access SRH services, the groups providing these services can aggregate and analyse their case data to better understand the key drivers of gaps between the law and on the ground reality.29 60

Civil society may also pursue further public interest litigation with lower courts when individuals are unable to access entitlements. For example, advocates in Colombia litigated when the public or private sectors failed to provide abortions that were permitted by law and when state actors were failing to respect women’s right to information about SRH services.29 42 Civil society organisations in Colombia, Nepal and South Africa developed a ‘long game’ vision, deploying cause lawyering to develop a robust body of higher court case law on gender equity, LGBT rights and SRH services.29 47 119 152 This strategy can also be used to establish limits on entitlements. Religiously oriented NGOs in some countries have pursued litigation in higher courts to oppose legislation or court decisions relating to the provision of abortion and SRH services to adolescents.81 95

Finally, court systems themselves may proactively react to an earlier decision, such as the Chief Justice of the Delhi High Court taking what is called a suo moto (on its own motion) decision to seek accountability for the maternal death of a homeless woman in New Delhi following the Shanti Devi decision, which found that the government had failed to fulfil Devi’s rights to maternity entitlements.90

Ways forward

Several articles proposed specific approaches to assess the potential impact of legal accountability strategies, namely strategic litigation, or to lessen the gap between case or statutory law and practice.

Women’s Link Worldwide created a checklist for strategic litigation that assesses the existing rights framework, the independence and knowledge of the judiciary, the human rights and litigation capacity of civil society and the existence of a network that can build on the opportunities created by litigation.153 Donors and others have articulated broad considerations for assessing whether or not strategic litigation may contribute to a desired goal, as well as for considering the likelihood of risks, such as the potential for violence towards the litigants, incarceration of the litigants if their case is unsuccessful, stigma, disappointment, hostility from people and institutions that are opposed and retraumatisation of survivors.7 8 137 154 155 Some practical resources look at particular countries or regions, such as India and sub-Saharan Africa.137 156 157 In contrast to the peer-reviewed articles, some of the practical guidance addresses the more proximal impacts of legal accountability strategies, such as empowerment of violence survivors and increased community trust in the judiciary; these practical resources also advocate for victim-centred approaches to strategic litigation7

Moving from winning cases to implementing case law, Women’s Link Worldwide created mapping exercises wherein they mapped barriers to implementation of court decisions, including many of the factors the empirical papers included in our review identified as barriers, such as lack of knowledge regarding the law, gratuitous requests for additional documents/requirements by service providers and widespread stigma.55 In legal systems where the thresholds to bringing suit are low, those whose rights are violated can bring suit, contributing to widespread judicialisation, eventually fostering implementation of an existing law.5 For example, a 2008 decision by the Constitutional Court in Colombia combined 22 individual cases regarding state failure to ensure the fulfilment of the right to health and required that the government take specific actions in specific timeframes, including making major structural changes to benefit plans.111

Several papers focused on the provision of implementation support for new case or statutory law, such as the creation of national committees to guide implementation, training, changes in clinical protocols, task-shifting among providers, awareness raising within communities and health providers and NGO support to facilities.34 37 38 42 51 60–62 A comparative case study of the implementation of abortion services in six countries aimed to inform practice-based guidance by systematically describing the health sector’s role in operationalising abortion laws.37 Researchers in Zambia used an implementation science approach to evaluate the implementation of medical abortion, with a focus on health worker capacity, supporting pharmacists as prescribers and community mobilisation. The researchers used pre and post questionnaires to assess changes in knowledge and attitudes and, more importantly, they tracked the number of facilities providing services and the number of people receiving services.41

Structuralist social scientists study how opportunity structures affect the likelihood of success.22 158 They not only include some of the factors in the Women’s Link Worldwide checklist but also ‘zoom out’ to consider broader issues, such as the likelihood of achieving success in the courts as opposed to the likelihood of success in the political arena and the costs and risks associated with each strategy.158 159 Reutersward et al applied some of this thinking to reproductive health, suggesting that strategists should not see the state as a unitary actor, but examine the opportunities provided by particular institutions, agencies and discourses, including the constitutional court and other elements of the judiciary,28 an approach that many NGOs and advocates take.160 161