Human rights: international use of ‘lawfare’ leads to fears for LGBTQI+ and abortion rights
A US-based movement is attempting to influence overseas policy towards limiting access to abortion and restricting LGBTQI+ rights by engaging in ‘lawfare’, say campaigners.
Lawfare, as defined in the Cambridge dictionary, is ‘the use of legal action to cause problems for an opponent’. It was originally used, says Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute and a partner at Howard Kennedy in London, ‘to chill free speech’, but it’s now being utilised to contest controversial issues. ‘[In this scenario,] lawfare is the abuse of legal provisions to chill the prospect and possibility of having access to abortion and to chill the decisions to assist a woman who is in medical need', he says.
In 2022, the US Supreme Court in Dobbs overturned the landmark 1973 Roe v Wade decision, which had made access to abortion a constitutional right. In its place, Dobbs gave individual states the authority to regulate abortion. Many have since criminalised it. Galvanised by its ability to enshrine their agenda into law, those in the US who are against abortion rights are now exporting this tried and tested model of lawfare elsewhere. ‘There have been attempts to transfer the political football that is abortion in the US overseas’, says Elizabeth Heger Boyle, a professor of sociology and law at the University of Minnesota.
A recent survey conducted by a cohort of health advocacy groups found that 35 per cent of respondents based in Africa, the Americas and South Asia believe the Dobbs decision has had implications for access to sexual and reproductive health and rights elsewhere. More than half of respondents say that the US Supreme Court overturning Roe v Wade has emboldened anti-abortion movements in their countries.
Abusing our skills as lawyers to enforce rights against women […] can be oppressive
Mark Stephens CBE
Co-Chair, IBA’s Human Rights Institute
Oftentimes, these movements are bolstered by US groups and individuals who have a wider agenda – one that campaigners refer to as ‘anti-gender’ – that also encompasses the dismantling of LGBTQI+ rights, says Neil Datta, Executive Director of the European Parliamentary Forum for Sexual and Reproductive Rights (EPF). The signing of Uganda’s Anti-Homosexuality Act into law in May 2023 is a direct result of this, he adds. The new Ugandan Act criminalises those identifying as part of the LGBTQI+ community, imposing life imprisonment – and even the death penalty in some cases – for same-sex activities.
Additionally, there’s a significant amount of anti-abortion activity taking place in Kenya, says Katy Mayall, Director of Strategic Initiatives at the Center for Reproductive Rights in San Francisco. She adds however that, despite the efforts of anti-abortion movements, the overwhelming trend is towards the liberalisation of abortion laws.
‘Africa has been the new frontier for the last five years’, Datta says. He believes the Pacific and the Caribbean are next. But a 2021 report by EPF, entitled Tip of the Iceberg, revealed that $81.3m in ‘anti-gender’ funding from US non-governmental organisations or think tanks was channelled into Europe between 2009 and 2018. It states that two particular organisations, ADF International and the European Centre for Law and Justice (ECLJ), have been involved in over 35 cases before the European Court of Human Rights (ECtHR) to ‘undermine’ human rights within the European legal order.
Anti-abortion groups have established offices in cities known for having a large presence of human rights organisations, such as Brussels, Geneva and Strasbourg, and are supporting local lawyers – be they in Malawi or France – in identifying potential cases that would help to dismantle existing and protective legislation, explains Datta. ‘The US has 50 years more experience in litigation than other parts of the world’, he says, adding that the country’s states have served as ‘50 little petri dishes’ in which to experiment in.
Since the launch of the EPF’s report, overall funding for ‘anti-gender’ activism in Europe has continued to increase, from an annual spend of approximately $80m in 2018 to $120m in 2022. Datta adds that the activities of ADF International are emblematic of this increase, with the organisation spending $5.2m in Europe in 2021 compared to $3.4m in 2018.
An ADF spokesperson tells Global Insight that it ‘supports the sovereign right of every country to protect unborn life’ via an alliance of local lawyers around the world. According to the spokesperson, the imposition of ideological agendas, such as the promotion of abortion in the developing world, is a method of lawfare. ‘Everyone should be free to peacefully express their beliefs, and we dedicate our resources across the globe to championing this most basic of human rights where it is threatened’, says the spokesperson.
The ECLJ’s director, Grégor Puppinck, tells Global Insight that his organisation doesn’t start litigation, but intervenes in and responds to cases already initiated, mostly by pro-choice groups. ‘We oppose them in their attempt to promote abortion as a human right,’ he says, adding that the issue of abortion is ‘deeply political and conflictual.’ This, he says, ‘explains why our opponents may say that we are “politically [biased],” as they are from our point of view. I consider that they do not respect the proper interpretation of international human right law on the issue of abortion.’
But Mayall explains that both LGBTQI+ rights and reproductive rights have been recognised as fundamental human rights. The 1990 International Conference on Population and Development saw governments commit to promoting reproductive rights, which includes the right to decide the number, spacing and timing of children. ‘Lawyers should be working to uphold human rights both within their own countries,’ and, for those who work internationally, around the world, she says.
Stephens adds that lawyers must not use their skills to contribute to oppression. ‘One of the things that people forget about lawfare is that we all have, as lawyers, professional obligations, which stand aside from the law,’ he says. ‘And abusing our skills as lawyers to enforce rights against women […] can be oppressive.’
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