Original research Necessary but not sufficient: a scoping BMJ Glob Health: first published as 10.1136/bmjgh-2021-006033 on 28 July 2021. Downloaded from review of legal accountability for sexual and reproductive health in low-income and middle- income countries 1 2 Marta Schaaf , Rajat Khosla To cite: Schaaf M, Khosla R. ABSTRACT Key questions Necessary but not sufficient: Background This paper is a scoping review of the impact a scoping review of legal of legal accountability efforts for sexual and reproductive What is already known? accountability for sexual and health and rights (SRHR), exploring the links between legal reproductive health in low- Legal accountability strategies typically rely on leg- accountability strategies and changes in the desired SRHR ► income and middle- income islative or judicial responses to violations of human outcomes. countries. BMJ Global Health rights. These can range from individual cases to Methods We defined legal accountability as use of the 2021;6:e006033. doi:10.1136/ strategic and public interest litigation within national judicial system following state failure to respect, protect bmjgh-2021-006033 legal systems to uphold affirmative rights and en- or fulfil SRHR as enshrined in national law, as well as titlements or to provide a remedy in the case of a individuals’ or the state’s use of criminal law mechanisms Handling editor Seye Abimbola violation. They are often used to address violations to prevent unwanted behaviour and to provide remedy. of sexual and reproductive healthcare entitlements Received 16 April 2021 We undertook a keyword search in PubMed, Scopus and rights. Accepted 2 July 2021 and LexisNexis and then consulted a group of experts to provide guidance regarding further peer- reviewed and grey What are the new findings? literature, yielding a total of 191 articles. ► This paper reviews the literature regarding the im- Results The majority of the empirical, peer- reviewed pact of legal accountability strategies, finding that articles identified were regarding abortion law and abortion most papers identified explore the gaps between law care availability, followed by violence against women. and practice. Some analyses and studies describe Most of these articles explore the gaps between law and factors that shape the efficacy of legal accountability practice. We identified seven key factors that shape the efforts. efficacy of legal accountability efforts, including the ways http://gh.bmj.com/ a law or court decision is formulated, access to courts, What do the findings imply? the (dis)advantages of criminal law in the given context, ► Reliance on the judiciary may be necessary to ef- cultural norms, politics, state capacity and resources and fect change in some settings, and the act of claiming the potential for further litigation. Many articles explained rights can shift social norms. However, legal ac- that use of the judiciary may be necessary to effect change countability strategies are generally more effective and that the act of claiming rights can empower, but that when they are part of a multipronged strategy to legal avenues for change can be imperfect tools for justice. promote sexual and reproductive health and rights. on October 2, 2021 by guest. Protected copyright. Conclusions Legal accountability can be effective as © Author(s) (or their part of a broader, long- term strategy, with due attention to employer(s)) 2021. Re- use permitted under CC BY-NC. No context. commercial re- use. See rights been applied to sexual and reproductive health and permissions. Published by and rights (SRHR) and documented in the BMJ. peer- reviewed literature: social or community 1Development and Research BACKGROUND accountability, performance accountability Training in Human Reproduction Efforts to demand answerability, sanctions and 4 and legal accountability. Legal accountability (HRP), Department of Sexual remedy for state failure to respect, protect or strategies typically rely on legislative or judicial and Reproductive Health fulfil health- related rights are often described and Research, World Health responses to violations of human rights. These as ‘accountability strategies’. Drawing on Organization, Geneva, can range from individual cases to strategic and Switzerland learning from the broader fields of transpar- 2Research, Advocacy, and Policy, ency, accountability, participatory development public interest litigation within national legal Amnesty International, London, and human rights, accountability for health systems to uphold affirmative rights and enti- UK is coalescing into a distinct field of practice tlements or to provide a remedy in the case of a 1–3 violation.4 Over the past 25 years, health justice Correspondence to and research. A recent systematic review Dr Marta Schaaf; undertaken by Van Belle et al identified three advocacy has increasingly included the judicial- martaschaafconsult@ gmail. com primary strategies for accountability that have isation of health-related rights.5 Schaaf M, Khosla R. BMJ Global Health 2021;6:e006033. doi:10.1136/bmjgh-2021-006033 1 BMJ Global Health This paper is a scoping review of the impact of legal METHODS BMJ Glob Health: first published as 10.1136/bmjgh-2021-006033 on 28 July 2021. Downloaded from accountability efforts for SRHR. Human rights researchers Scoping reviews are appropriate for synthesising a wide and practitioners debate the long- term impacts of typical range of research and non-research material to provide legal accountability strategies, primarily focusing on stra- greater clarity about a given topic.17 This scoping review tegic litigation. In this paper, we use the term ‘strategic was ‘topic driven’, in that it aims to describe the effec- litigation’ to encompass what may variously be described tiveness of existing approaches and outstanding research as public interest litigation, cause lawyering and human questions.18 We used the scoping review framework rights litigation and define it as litigation with an intended proposed by Arksey and O’Malley and further refined impact beyond a particular case to influence broader by Levac et al, which specifies several distinct stages of 19 20 change at the level of law, policy, practice or social a scoping review. We describe each of these stages discourse.6 Strategic litigation is a process rather than below. a single event; it can take several years to develop a case and for the case to move through court system. Cases are Identifying the research question ‘strategic’ when they are emblematic of a broader pattern Based on a preliminary review of the literature, we articu- of state failure and are best pursued when the evidence lated the following research questions: of violation is sufficient to withstand examination in an ► How has legal accountability for SRHR been described adversarial or inquisitorial process in a court room, as loss and studied? in court could potentially result in the ossification of the ► What do we know about the effectiveness of these status quo and the issue being ‘off the table’ for many years strategies in effecting change in people’s SRHR and to come.7 8 the broader context and mechanisms associated with Circumspect researchers point to a lack of evidence successful legal accountability efforts? regarding the outcome of strategic litigation and other The burgeoning field of legal epidemiology entails the study of law as a factor in the cause, distribution and types of legal accountability efforts, their impact on health 21 outcomes, systems and policies and their social impli- prevention of particular outcomes. However, some cations, including to what extent legal cases represent legal mobilisation scholars reject what they describe as 9 10 a positivist approach that assesses whether or not law or the priorities of the most marginalised. In addition, legal cases achieve the desired outcome and argue for a researchers working in the field of accountability more more interpretivist approach to law that sees the forma- broadly note the specificities of SRHR that complicate tion of laws and legal discourse as part of a larger social accountability efforts, such as the way that dominant polit- process.10 22–24 This is echoed in public health discussions ical, religious and cultural ideologies about gender, sexu- about how changing laws can help to transform social ality and reproduction influence the claims articulated, norms and are thus meaningful, separate from the ques- as well as responsiveness by duty bearers.11 Critical legal tion of whether or not there is a direct causal chain from scholars posit that legal action can reflect and perpetuate a change in law (or a judicial decision) to implementa- dominant social hierarchies by moving social action from 15 25 http://gh.bmj.com/ tion and immediate changes in people’s lives. Our communities to remote court rooms, by de-radicalising key research questions fit within a more positivist, instru- emancipatory movements and by forcing advocates to mentalist approach, as our central concern is the effec- rely on rights and entitlements that are already—or can tiveness of legal accountability as a strategy to improve be—established in law, rather than making more proac- 8 10 12 SRHR. That being said, our analysis reflects what has tive demands. ‘Legal realists’ believe that legislation been described as the ‘law and society’ perspective, as on October 2, 2021 by guest. Protected copyright. or other governmental action is required for impactful we discuss empirical research assessing