Considering strategic litigation as an advocacy tool: a case study of the defence of reproductive rights in Colombia

Abstract

Women’s Link Worldwide developed a test to determine when an environment is conducive to social change through strategic litigation. We first present our understanding of strategic litigation, and then discuss four conditions for successful and sustainable change using strategic litigation: (1) an existing rights framework; (2) an independent and knowledgeable judiciary; (3) civil society organizations with the capacity to frame social problems as rights violations and to litigate; and (4) a network able to support and leverage the opportunities presented by litigation. Next, we present examples from our work in Colombia that show how analysis of these conditions informed our litigation strategy when confronting a powerful public official who opposes reproductive rights. Two litigation strategies were adopted. The first case was not successful in the courts, but allowed us to introduce our message and build support amongst civil society. The second case built on this momentum and resulted in a victory. Strategic litigation is a powerful tool to advance rights as well as hold governments accountable and ensure compliance with human rights obligations. The strategies developed can be adapted for use in other contexts. We hope they inspire others to protect and promote reproductive rights through strategic litigation when women cannot fully enjoy their rights.

Résumé

Women’s Link Worldwide a conçu un test pour déterminer quand un environnement est propice au changement social par le biais de litiges stratégiques. Nous présentons d’abord notre conception des litiges stratégiques, puis examinons quatre conditions d’un changement réussi et durable avec eux : 1) l’existence d’un cadre de droits ; 2) un système judiciaire indépendant et compétent ; 3) des organisations de la société civile capables de traduire les problèmes sociaux en violations des droits et d’engager une action en justice ; et 4) un réseau capable de soutenir et d’exploiter les possibilités offertes par les litiges. Nous présentons ensuite des exemples de notre travail en Colombie qui montrent comment l’analyse de ces conditions a guidé notre stratégie de litige face à un puissant fonctionnaire opposé aux droits génésiques. Deux stratégies ont été adoptées. La première affaire n’a pas eu gain de cause devant les tribunaux, mais nous a permis de présenter notre message et de mobiliser un soutien parmi la société civile. La deuxième affaire s’est servie de cet élan et a abouti à un succès. Le litige stratégique est un outil puissant pour faire progresser les droits ainsi que pour demander des comptes aux autorités et garantir l’application des obligations relatives aux droits de l’homme. Les stratégies élaborées peuvent être adaptées à d’autres contextes. Nous espérons qu’elles inciteront d’autres personnes à protéger et promouvoir les droits génésiques par les litiges stratégiques, quand les femmes ne peuvent pas jouir pleinement de leurs droits.

Resumen

Women’s Link Worldwide creó una prueba para determinar cuándo un ambiente es propicio para el cambio social mediante el litigio estratégico. Primero presentamos nuestro entendimiento del litigio estratégico, y luego explicamos las cuatro condiciones para el cambio exitoso y sostenible utilizando el litigio estratégico: (1) un marco de derechos; (2) una judicatura independiente y bien informada; (3) organizaciones de la sociedad civil con la capacidad para plantear los problemas sociales como violaciones de derechos y para litigar; y (4) una red capaz de apoyar y aprovechar las oportunidades presentadas por el litigio. A continuación, presentamos ejemplos de nuestro trabajo en Colombia, que muestran cómo el análisis de estas condiciones informó nuestra estrategia de litigio para confrontar a un funcionario público influyente que se opone a los derechos reproductivos. Se adoptaron dos estrategias de litigio. El primer caso no fue exitoso en las cortes, pero nos permitió presentar nuestro mensaje y fomentar apoyo en la sociedad civil. El segundo caso se basó en este impulso y fue victorioso. El litigio estratégico es una herramienta poderosa para promover los derechos y para imputarle a los gobiernos la responsabilidad de cumplir con sus obligaciones relacionadas con los derechos humanos. Las estrategias formuladas pueden ser adaptadas para utilizarse en otros contextos. Esperamos que inspiren a otras personas a proteger y promover los derechos reproductivos por medio del litigio estratégico cuando las mujeres no puedan disfrutar al máximo de sus derechos.

Keywords:

• strategic litigation
• reproductive rights
• sexual rights
• sexual and reproductive health and rights
• abortion
• advocacy
• strategies
• social change
• public interest
• Colombia

“The judiciary has the power to permit equality to grow and flourish to meet the legitimate demands and aspirations of the female majority of the world’s population. They also have the power to deny it.” (Kathleen Mahoney¹)

Traditionally, strategic litigation has been defined as the litigation of a public interest case that will have a broad impact on society beyond the specific interests of the parties involved.² In this approach, strategic litigation serves as a powerful and innovative advocacy tool by serving as a mechanism for government accountability.³ National and international strategic litigation can be used as an invaluable instrument by the sexual and reproductive health and rights movement on a global level to raise awareness of rights, promote the need of vulnerable populations to have access to those rights and demand government compliance with human rights obligations.

How to evaluate the potential of strategic litigation: the Four Conditions Test

Women’s Link Worldwide proposes a more comprehensive understanding of strategic litigation, not only to set progressive legal standards, but also to shape public opinion and bolster social movements by creating opportunities for activists to organize around a case. In our view, strategic litigation creates an opportunity for legal activists and judges to convene in a democratic debate around a specific case, where they can engage other branches of government, public opinion and specific sectors of the population on how rights should be interpreted and granted.^4* Through this process, if there is a legal victory, the conditions for implementation will be enabled. However, if there is not a victory, the conditions to advance the cause through other avenues will have improved, the movement will be stronger, and public opinion better informed.⁵ These are well recognized as critical factors in civil society efforts to promote social change.^6,7 Figure 1 presents the different components of the definition of strategic litigation presented by Women’s Link.

short-legendFigure 1

When legal advocates litigate, they give judges the opportunity to comply with their obligation to enforce the rights framework. Advocates should also find ways (legal and non-legal) to involve civil society in the litigation process both to empower them and at the same time to create a platform to demand the enforcement of rights. Indeed sometimes advocates will have been brought into the issue by civil society groups. Social mobilization and strong public opinion can facilitate the decision-making of judges, as they will see that the rights demanded by the parties in the litigation form part of a broader conversation in civil society. At the same time, a judicial decision enforcing rights will have an impact on civil society’s values, norms and priorities.⁸

Women’s Link Worldwide brought its first case of strategic litigation in 2006 in Colombia to advance abortion rights at a time when few cases from the region had been litigated strategically.^9,10 The organization’s strategic and comprehensive approach to litigation led to the ground-breaking decision by the Colombia Constitutional Court C-355/06, which granted women the right to therapeutic abortion.¹¹ Women’s Link has since litigated cases in other countries and on different women’s rights issues as well as advised other organizations on engaging in this type of advocacy.^*

It is important to assess the viability of effective strategic litigation in a situation before embarking on it, by taking account of the political, social and legal context, a process that Women’s Link calls mapping. In order to assess whether social change could be achieved through litigation and inform the design of legal, communications and alliance strategies, Women’s Link Worldwide analyses four conditions. This test is based in the theory presented in Charles R Epp’s book, The Rights Revolution.¹² If these four conditions are present, or can be created or strengthened through the judicial process, strategic litigation can be used as a tool to advance human rights. These four conditions are: (1) an existing rights framework; (2) an independent and knowledgeable judiciary; (3) civil society organizations with the capacity to frame social problems as rights violations and to litigate; and (4) a network to support and leverage the opportunities presented by litigation. For the purposes of this article, we will evaluate each of these conditions from a reproductive rights perspective.

First, social change can only be achieved through the courts if activists can identify and frame problems as rights violations. This requires a constitutional or legal framework that recognizes human rights or the possibility to use international human rights law or comparative law. When citizens understand that the law guarantees them something they need but has not been granted by the elected government, activists can design strategies to demand judges take measures to correct this deficit.

There is no singular formula for an adequate rights framework. Some domestic constitutions contain a bill of rights, which explicitly articulates guaranteed fundamental rights. Countries may have signed regional or international treaties that ensure human rights. The foundation for reproductive rights can be located in almost any human rights instrument.^13* In some legal systems, rights recognized in previous judicial decisions are considered binding and can be used as legal standards in subsequent cases. In reality, most countries have some combination of these features. Additionally, the legal system must allow for claims to be brought based on violated rights. Some systems limit claims to actual instances of rights violations, whereas others allow for abstract review of laws or policies that are likely to lead to rights violations.

Second, the judiciary must be independent in order to ensure the rights of minorities and marginalized peoples. Judicial independence is the judges’ freedom to decide a case in accordance with their legal judgment, without undue pressure from other branches of government.¹⁴ Evaluating the institutional design of the judiciary helps advocates to assess judicial independence. Factors that affect this independence include who has the power to name and remove judges, and for what cause; whether or not certain skills or qualifications are required to be a judge or if appointments are merely political; the length of time judges serve; and who has the ability to adjust budgets and salaries. In general, when these processes are concentrated in the hands of few individuals, or there is a lack of transparency, judges will enjoy less independence. If the judiciary does not have a minimum level of independence, litigation is unlikely to be the best strategy to advance a cause to which the state or other influential parties are hostile.

On the other hand, judges who do understand the dynamic between the rights framework and advancing social justice can play a key role in promoting social change through the courts. These judges may facilitate the role of advocates bringing strategic litigation if they understand their role as promoters of human rights principles. However, social change can be also achieved through the courts with judges that simply believe their role is to apply the rights framework to the cases brought before them. Advocates should evaluate the degree of knowledge and exposure judges have to human rights, and particularly women’s and reproductive rights, whether it is during their legal education or during education or training they receive specifically as judges. It is also helpful, though not always as easy, to assess whether judges consider upholding human rights as one of their main duties, or if they think that their only duty is to apply the law without consideration for the ultimate outcome.

Third, civil society organizations must have the capacity to litigate effectively. Strategic litigation requires advocates to understand the role of judges and the diverse opportunities presented by litigation. Despite how knowledgeable and committed judges may be, they cannot promote rights unless they are presented with a case. Activists must be able to articulate particular problems within a rights framework and bring these cases to the courts, regardless of how challenging the issue at hand may be. Additionally, advocates leading litigation must have the capacity to collaborate with a variety of other groups in order to create enabling conditions for a favorable decision. Enabling conditions exist when the socio-political context allows judges to feel comfortable recognizing the rights violations posed by the case. Otherwise, the judges might feel that their decision or tribunal will lose legitimacy or relevance.

Advocates for social change must be aware that judges are human beings and that courts have traditionally been composed of members of the elite class.¹⁵ While their mandate is to administer justice, ensure equality and eliminate discrimination, their personal biases might facilitate or disrupt the pursuit of social justice in the courts. While judges can take the initiative to continually evaluate their own prejudices, activists should promote or facilitate this process by, for example, organizing colloquiums, filing amicus curiae, and sending judges publications in order to debunk many of the preconceptions that can affect their judgement. In addition, advocates must research what the most persuasive arguments will be for a particular court or judge.

Fourth, social change achieved through the courts is sustainable only if there is a strong civil society support network. As mentioned under condition three, different constituencies of this support network need to be engaged with the legal advocates through the different stages of the legal process. The network should include vibrant social movements that can leverage the opportunities presented throughout the different stages of the judicial proceedings and the debates that occur as a consequence of litigation. Individuals and organizations working around an issue should be willing and able to contribute to the litigation process by providing their expertise and knowledge, understanding that depending on the issue they might be subject to backlash and stigma.

During the course of litigation, this network should raise public awareness on the issue and work to shape the debate in a favorable way. Effective communication involves establishing a key message as to why the issue matters to the general public, what the precise problem is, and what solution the litigation is proposing. That way, even if there is not a legal victory, rights consciousness about the issue will have improved and roots will have been established for future advocacy through other avenues. Similarly, a favourable legal decision without a support network might have limited impact on affected constituencies and face serious obstacles during the implementation phase.

Finally, the support network should also include committed funders that understand the complexities of strategic litigation in terms of time, the kind of activities that require funding beyond legal work, and the infrastructure needed to coordinate this work. Adequate funding is essential to support this network. Strategic litigation is often a lengthy process, and organizations must plan for that. Some cases begin in national court systems before ultimately ending up in international tribunals, a process that can take years.

Litigating reproductive rights requires analysing these conditions. Does a given state guarantee rights that could be applied to reproductive health? Are judges informed about the complex technical and legal debates around reproductive rights? Are activists capable of building cases based on these rights that appeal to judges? Can these activists send clear and engaging messages to the community and create opportunities to connect with other social movements? Are there organisations willing to mobilise around the litigation process? Asking these questions and evaluating these four conditions has helped Women’s Link design its advocacy strategies.

The context in Colombia

Here we present two examples from Women’s Link’s own work in Colombia.^16* First, we explore the context in the country in the years following the recognition of therapeutic abortion as a right, and then how the analysis of the four conditions informed our litigation strategy, in which we had to confront the views of the Procurador General de la Nación (Inspector General) who is opposed to reproductive rights and uses his position to limit them. Women’s Link adopted two litigation strategies. The first case Women’s Link brought, a disciplinary complaint against the Procurador, was not successful in the courts. However, the case allowed us to introduce our message, put his position in the spotlight, educate the public, and build support amongst civil society. The second case, using the right to information, built on this momentum and resulted in a legal victory and, importantly, a symbolic one as well.

To understand the context in which these cases occurred, it is necessary to understand the position of the Procurador, which is unique to Colombia. The Procurador is elected by the Senate for a once-renewable, four-year term.¹⁷ The Procurador’s role is to monitor compliance with the Constitution, laws, and judicial decisions; protect human rights; and monitor the conduct of public officials.¹⁸ In theory, the Procurador is Colombia’s top defender of human rights. In pursuit of these goals, the Constitution grants the Procurador substantial power. In fact, with the exception of the President and judges, the Procurador has virtually unlimited discretion to discipline and remove any public official.¹⁹

The breadth of this authority makes challenging the Procurador complicated, as the people in a position to amend the scope of the Procurador’s power are the same individuals subject to his disciplinary control. The potential for the Procurador to abuse this power became clear during the two terms of the current Procurador, Alejandro Ordoñez, who was elected in 2009 and re-elected in 2013, to serve until 2017.

Before taking office Ordoñez published several books, one asserting that public officials should have the right to disobey laws if they believe they violate divine law and another detailing his concerns with human rights advocacy. In this second book, Ordoñez writes:

“The objective of the cultural revolution today is to undo the principles and values that are the basis of a Christian family; its heterosexual, monogamous, unbreakable and fertile nature; these are the obstacles that they want to remove at all costs by allowing for divorce, the use of contraception, abortion and homosexual marriage, a first phase that is almost complete.”²⁰

At that time, in 2006, the Colombian Constitutional Court in Judgment C-355/06 had recently declared abortion legal in certain circumstances.²¹ The case, brought by Women’s Link Worldwide, recognized abortion as a right of women and girls under three circumstances: (1) when the pregnancy poses a risk to the health or life of the pregnant woman; (2) when the fetus suffers serious malformations that make life outside of the womb impossible; and (3) when the pregnancy is a result of rape or incest. Ordoñez would thus become responsible for enforcing a key judicial decision he believed posed a threat to religious family values as he understands them.

On 5 June 2008, the Colombian Council of State struck down anti-choice groups' attempt to ban emergency contraception, stating that emergency contraception was indeed a contraceptive method, not an abortifacient, and thereby finding its use in accordance with the Colombian Constitution.²²

Upon assuming the office of Procurador, Ordoñez chose to prioritise his personal beliefs over the constitutionally mandated duty to abide by the Constitution and protect human rights, including reproductive rights. On 10 May 2009, Ordoñez issued Memorandum 030, requiring public officials to take measures to protect the rights of unborn children.²³ Judgment C-355/06 explicitly declared that unborn children do not have justiciable rights. On 21 October 2009, he issued a press release in response to a judicial decision requiring educational campaigns on sexual and reproductive rights, declaring he would contest such a “massive campaign promoting abortion”.²⁴ Further, on 7 December 2009 the Procuraduría issued a press release describing emergency contraception as a form of abortion, and declared that emergency contraception pills would thus be prohibited,²⁵ despite medical²⁶ and judicial²⁷ conclusions to the contrary.

Furthermore, Ordoñez appointed Ilva Myriam Hoyos, the founder of an anti-abortion coalition, as the Deputy Procuradora responsible for Children, Adolescents, and Family.²⁸ Following Judgment C-355/06, as the leader of the anti-choice movement, she publicly declared that she would do all in her power to overturn the decision, i.e. recriminalising all grounds for abortion.²⁹ Among her duties as Deputy Procuradora was ensuring women’s constitutional access to abortion and enforcing the decision.

On 2 March 2010 Hoyos wrote a letter to the Head of the National Health Department in response to a memorandum he issued regarding compliance with Judgment C-355/06. The National Health Department (Superintendencia de Salud) supervises all health providers in Colombia. In her letter, Hoyos argued that abortion was not considered a right, contrary to clear constitutional jurisprudence stating otherwise. She thus stated that the Health Department was not required to ensure the public health system was providing abortions in line with Judgment C-355/06, arguing that abortion did not fall under the health mandate of the Department.

Additionally, in 2011 the mayor of Medellín announced plans to open a women’s health clinic to provide a range of services for women, including reproductive health services.³⁰ In response, Procurador Ordoñez announced an investigation of the mayor under his disciplinary powers and Deputy Procuradora Hoyos formed a special working group to investigate the clinic specifically.³¹ The actions of these top government officials responsible for defending human rights illustrated that they were not only personally opposed to human rights, but willing to leverage their positions of power to fight against reproductive health and rights.^*

Lastly, also in 2011, another official in the Procurador’s office began challenging the inclusion of misoprostol as an essential medicine under the national health system. Procuradora María Eugenia Carreño wrote to the Ministry of Social Protection, declaring that the Colombian drug regulatory authorities had not approved misoprostol and that the World Health Organization had expressed doubts about its safety. In fact, the World Health Organization approved misoprostol as a medication for several obstetric uses and for induced abortion, and include it on their list of essential medicines.³²

With this complicated background, Women’s Link Worldwide evaluated the four conditions for litigation and designed an advocacy strategy to protect and advance reproductive rights and health.

The Four Conditions analysis for Colombia

First, Colombia has a broad rights framework. The 1991 Colombian Constitution protects social, economic, and cultural rights.³³ Article 49 assigns the state the duty to establish and run a health system, providing a minimum level of care for free.³⁴ The Constitutional Court had also explicitly recognized the right to free abortion services via Judgment C-355/06. Lastly, the Colombian Constitution also directly incorporates international human rights treaties into the domestic legal framework.³⁵ This means judges can directly apply international human rights norms in their decisions.

The Colombian Constitution of 1991 also established the right to the tutela (writ of protection),³⁶ which is designed to protect constitutionally guaranteed rights in a time-sensitive manner. Every citizen has a right to file a tutela when his or her fundamental rights have been threatened or violated, and a judge must respond within ten days. The tutela has been used repeatedly since 1991 to enforce a broad variety of rights.³⁷ Citizens are familiar with the process and it is part of popular rights consciousness. The tutela has also been used specifically to demand enforcement of Judgment C-355/06.³⁸

Second, the Colombian Constitution declares that the judiciary is independent,³⁹ and includes an institutional design that supports judicial independence. The Supreme Court of Justice is the highest court for civil and criminal matters. The Constitutional Court was created as the final arbiter of Constitutional interpretation. The judges on the Supreme Court of Justice are selected from lists created by the Superior Council of the Judicature.⁴⁰ The Senate elects members of the Constitutional Court.⁴¹ Judges must be lawyers and have at least ten years of experience.⁴² Additionally, judges are subject to disciplinary control by the Superior Council of the Judicature and are not subject to the disciplinary powers of the Procurador.⁴³

However, in practice, it is possible for the courts to become politicised through the appointment process. Additionally, judges on these high courts serve eight-year terms,⁴⁴ and can be subject to influences arising from subsequent employment considerations. At the time when Women’s Link was considering litigation, after evaluating the judges on the Supreme Court of Justice and the Constitutional Court, we believed there was still a high level of judicial independence. The Supreme Court of Justice, for example, was publicly fighting the executive branch after they discovered that members of the executive branch had been illegally tapping judges’ telephones.⁴⁵ Women’s Link thus considered the second condition to be met.

Third, Women’s Link already had substantial experience working in public interest litigation. We rejected the possibility of filing a criminal complaint. Instead, because our staff has expertise both in constitutional and administrative law, we believed we had the technical legal skills necessary to bring either a disciplinary complaint or a constitutional case. Had we been considering another type of legal action, this may not have been the case.

Fourth, Women’s Link determined that there was a strong support structure at the time. A number of civil society organizations were mobilizing against the Procurador. Some of these organizations were framing their advocacy in terms of violated rights, but nobody was litigating. There was not an explicit coalition against the Procurador’s actions among these organizations, but Women’s Link sensed a shared consciousness that action needed to be taken. Therefore, Women’s Link determined that this condition could be strengthened sufficiently to support strategic litigation.

After reviewing these four conditions, Women’s Link concluded that strategic litigation was viable. We next moved on to designing specific legal strategies that would take account of our analysis of the four conditions in this hostile context.

Protecting and advancing reproductive rights and health through the courts

We first chose to submit a disciplinary complaint against the Procurador. This strategy was selected because we believed we could articulate the ways in which the Procurador was not complying with his constitutional duties. In addition, the Supreme Court of Justice is responsible for hearing disciplinary complaints against the Procurador, and Women’s Link had concluded there was a high degree of judicial independence and commitment to human rights on that court.

We also felt we could develop a strong communications and alliance strategy to engage the public and other civil society organizations. This strategy focused on denouncing the Procurador’s record of imposing his understanding of religious values on public officials as incompatible with his role in enforcing a lay constitution. The day the complaint was filed, Women’s Link worked with allied organizations to hold low-cost candlelight vigils in four major cities against the Procurador to draw attention to the filing. We used social media to publicise the events, and worked with newspaper columnists, other women’s rights groups, LGBTI groups, and Catholics for Choice to raise awareness. At the events we distributed boxes of matches with the photograph of the Procurador to send the message that a religious extremist represented a danger to our constitutional rights. The title of the campaign was No Más Oscurantismo (No More Dark Ages).

Unfortunately, the second condition, regarding the independence of the judiciary, changed over the course of this litigation. The Supreme Court of Justice took six months to officially begin the investigation of the complaint. During this period, there were several changes in the Court’s composition. The terms ended for several judges who were considered independent and committed to rights. The Chief Justice, also considered a strong independent voice on the bench, resigned for personal reasons following a family illness.

New judges, therefore, arrived on the Court. However, many of these judges had family or personal relationships with people working for the Procurador.⁴⁶ At this point, Women’s Link realised that the composition of the Court was no longer sufficiently independent. Even though the Court finally opened the investigative proceedings, Women’s Link no longer believed the litigation to be viable. However, we continued with the legal process during the next 18 months to continue raising public awareness about the Procurador’s abuse of power. The case was ultimately dismissed in November 2012.

In these circumstances, we re-evaluated the four conditions. This time, we looked to the Constitutional Court as the only judicial body that was issuing decisions critical of the Procurador. For example, the Court had already instructed the Procurador to comply with orders regarding the failure to implement educational campaigns on sexual and reproductive rights.⁴⁷ They specifically found that institutions cannot be conscientious objectors and that conscientious objection cannot override women’s rights, despite his own personal misgivings.

Next, we needed to design a legal strategy appropriate for this court. Even though we strongly suspected the Procurador’s actions were dissuading other authorities from ensuring reproductive rights, we did not have the evidence to prove causality between his actions, the actions of other officials, and the violation of reproductive rights. Furthermore, it has been our experience that most women who face obstacles accessing a legal abortion do not want to engage in litigation. The few women who had litigated were usually stigmatised and unjustly paid a high price for lending their case to the cause.⁴⁸ Therefore we took it upon ourselves to design a case in which we did not depend on a woman’s story.

We built a case using the evidence we had gathered by monitoring the actions of the Procuraduría related to reproductive rights. We knew the Procurador and his deputies had distributed misleading and unreliable information publicly and to officials under his disciplinary control. We then decided to file a tutela, based on a threatened or violated fundamental right, grounded in the right to information. The right to information is protected by the Colombian Constitution in Article 20⁴⁹ and the Inter-American Convention in Article 13(1).⁵⁰

Working with allied groups from different regions in Colombia, like Si Mujer from Cali, Mujer y Futuro from Bucaramanga, Red de Derechos Sexuales y Reproductivos from Medellín, and Contigo Mujer from Pereira, among others, we found 1,280 women of reproductive age from around the country who agreed to file the complaint jointly, alleging the Procurador’s lies and misleading statements violated their fundamental right to information on reproductive rights. The tutela argued that public officials must separate their personal opinions from legal standards and factual information when executing their duties. We first filed the claim in October 2011 with a court of first instance; it reached the Constitutional Court in January 2012.

At this point Women’s Link solicited amicus briefs supporting our position from other national and international civil society organizations. Within Colombia, a group of men supporting reproductive rights, a group of journalists, and several civil society organizations submitted briefs supporting the right to information argument. Internationally, several organizations submitted briefs outlining the support in international law for the right to accurate information from the state within a reproductive rights framework.^* This broadened the support network internationally, which could have been highly relevant had the case reached a regional or international tribunal.

The communications strategy message stated that the Procurador and his deputies were lying in order to sabotage the implementation of reproductive rights. We stated that they could personally be opposed to the recognition of certain rights, but as public servants they were obliged to provide accurate and reliable information. This resonated with people who oppose certain reproductive rights, but believe the authorities must be transparent and truthful in complying with their constitutional duties.

On 10 August 2012, the Constitutional Court issued Judgment T-627/12, finding that Procurador Ordoñez, Procuradora Hoyos, and Procuradora Carreño had provided false information regarding reproductive rights and threatened or violated the right to access reproductive health services, including abortion, and the right to physical and mental health. The Court ordered the Procurador and his deputies to correct the false information they had published within 72 hours. Disobeying a court order could have entailed jail time.⁵¹

The Court specifically required the Procurador to retract his statements that the health campaigns on reproductive rights were campaigns to promote abortion, that emergency contraception was an abortifacient, that misoprostol was unsafe, that the authorities should not enforce abortion because it is not a right, and that institutions as a whole are allowed to claim conscientious objection. The Procurador further had to publicly affirm that emergency contraception was freely available for Colombian women to access via the public health system. Procuradora Hoyos was forced to retract her letter to the Head of the National Health Department stating abortion was not a right and that he did not have to remove legal obstacles to accessing abortion. Additionally, the Court ordered the Health Regulation Commission to continue the process for including misoprostol in national health plans.

The Procurador and his deputies were forced to make these statements publicly in the same manner in which they made their initial untrue or misleading statements. The news received widespread media attention.⁵² Revista semana, a weekly magazine, noted the historic nature of the decision.⁵³ El tiempo, a leading Colombian newspaper, ran a full-page story with a photograph of a group of plaintiffs.⁴⁵ Organizations working on reproductive rights in Colombia came together and jointly paid for a full-page advertisement in the Sunday paper clearly stating the false information the Procurador had used, the correct information, and the impact the legal victory would have on women’s lives.

As a result, emergency contraception continues to be legal and accessible, misoprostol is included in the health plan, institutions are not allowed to be conscientious objectors, and the National Health Department issued new guidelines on how to provide legal and safe abortions as ordered by Constitutional jurisprudence. At the time of writing, the sexuality education campaigns on reproductive rights have not yet been implemented.

Conclusion

This paper has shown how to take strategic litigation a step further and understand that as an advocacy tool, it offers multiple opportunities to transcend the walls of the courtroom and impact people’s values and norms, even if a legal victory is not always achieved at a certain point in time. However, we have also shown the importance of a careful and detailed analysis of the terrain before deciding on litigation instead of other advocacy avenues, in order to do so responsibly. While it is clear that the Four Conditions test will never be fully met, it is key that legal advocates understand that if they want to see sustainable change in society as a result of their litigation efforts, they need to design and adapt strategies to develop or strengthen all of the four conditions, and particularly the ones identified as weakest.

Both of the cases presented in this article illustrate the interplay of the four conditions. They show how strategic litigation can be used to promote social change by bringing a case to judges who can apply a rights framework, and create inter-related legal, communications and alliance strategies in order to transcend the courtroom and connect with public opinion and social movements, thus enhancing the overall conditions to address the rights violation.

The disciplinary complaint demonstrates that without independent and committed judges, it is very difficult to succeed legally, even if the rights framework is generous, the violations are clear, the case is well built, and civil society organizations have successfully engaged public opinion. However, it also reveals the value of incorporating an alliance and communications strategy as part of the litigation process. Even though the complaint was finally dismissed and no legal victory was achieved, it allowed us to position the message that the Procurador was a threat to fundamental rights and freedoms, especially for women.⁵⁴ It also created a platform to mobilise groups from around the country and consolidate a sector of civil society including, but going well beyond, those concerned with reproductive health, that continues to critically examine the actions of the Procurador and his deputies, denouncing those that oppose human rights and the rule of law.^55,56

The tutela on the right to information proved that it is possible for civil society to hold powerful authorities accountable, when an organization has the capacity to craft creative arguments that frame problems as rights violations and access the courts to demand a solution. By basing the claim on the right to information, any woman of reproductive age who was denied information and wanted to become a plaintiff could do so. The coordination with the women’s and reproductive health movements through the use of amicus briefs significantly increased the impact of the decision while empowering those who joined as plaintiffs.

Harsh opposition to reproductive rights and health is all too common around the world. Within the reproductive rights arena, the ever-growing opposition has begun using a rights framework in its discourse, solidifying the urgency for the sexual and reproductive health and rights movement to employ new and innovative strategies, such as strategic litigation. Strategic litigation is a very powerful tool to advance rights as well as hold governments accountable and ensure compliance with human rights obligations. The strategies developed can be adapted for use in other contexts. We hope they inspire others to protect and promote reproductive rights through strategic litigation when women cannot fully enjoy their rights.

Acknowledgements

This article is a preview of a more comprehensive publication documenting Women’s Link Worldwide’s methodology, including sections on how to assess each of the four conditions and design strategies based on the outcome of such mappings. The publication will also include guidance on designing and defining the legal, communications, and alliance strategies of the litigation process. The authors would like to especially thank Elsa Meany, whose participation made this article possible. We would also like to thank Viviana Waisman, Ariadna Tovar, Mariana Ardila, Carolina Dueñas, Blakeley Decktor and Rafaela Menezes for their invaluable input. The ideas for this article were developed as part of the work carried out by Women’s Link Worldwide, made possible by their generous donors. The authors would especially like to thank IPPF/WHR for encouraging the documentation of these processes.

Notes

* This understanding is based on the framework of dialogical activism. Dialogical activism refers to the democratric debate with other branches of government and civil society that the judiciary can generate when they examine certain cases.³

* For more information on Women’s Link Worldwide’s litigation projects see www.womenslinkworldwide.org.

* The Center for Reproductive Rights lists 12 human rights as key to reproductive rights. These are: (1) the right to life; (2) the right to liberty and security of the person; (3) the right to health, including sexual and reproductive health; (4) the right to decide the number and spacing of children; (5) the right to consent to marriage and to equality in marriage; (6) the right to privacy; (7) the right to equality and non-discrimination; (8) the right to be free from practices that harm women and girls; (9) the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment; (10) the right to be free from sexual and gender-based violence; (11)the right to access sexual and reproductive health education and family planning information; and (12) the right to enjoy the benefits of scientific progress.¹²

* See also the paper by Alba Ruibal that traces the history of the backlash against abortion law reform in Colombia as a process of movement and counter-movement.¹⁶

* Thus, on 8 September 2009, they announced that a special working group had been formed to exercise “preventive control” in Medellín over the agencies responsible for opening a women's clinic.

* The following amicus briefs were submitted: Right to information and freedom of expression (Asociación por los Derechos Civiles, Argentina); Right to information (Centro de Investigación y Docencia Economicas, Mexico); Importance of information for reproductive rights (Center for Reproductive Rights, Colombia and global); Constitutional rights (DeJusticia Colombia); Men’s right to information on reproductive rights (led by Colombian attorney Santiago Pardo); Journalists duties (led by Catalina Ruiz-Navarro).