This Expert Column is part of a series that examines the role of strategic litigation in advancing sexual and reproductive rights across different regions. The series offers an intersectional analysis of key concepts, achievements, impacts, and challenges in strategic litigation, aiming to amplify these efforts and share valuable lessons learned to strengthen advocacy and legal frameworks globally.
Read the first Expert Column in the series here.
Introduction
Latin American countries face a complex and challenging history regarding access to sexual and reproductive rights. Military dictatorships, forced displacement, human rights violations against Indigenous peoples and Afro-American communities, and extractivist practices have all contributed to a landscape of exclusion and inequitable access to rights — disproportionately affecting sexual and reproductive rights, with women and sexual minorities bearing the brunt of these injustices. The long-lasting consequences of this history call for focused, targeted interventions that place substantive equality at the center of advancing the right to health.
As mentioned in the previous Expert Column, this piece focuses on Latin America, aiming to review the changes and advancements that have taken place, highlight the lessons learned, discuss the unresolved challenges to date, and offer some reflections on the work ahead. Starting with the transformations seen in the last decades, this Expert Column covers a multiplicity of subjects discussed under the sexual and reproductive health rights umbrella in the region, the significant advancement achieved in part through strategic litigation, and the numerous stakeholders who have participated in these processes.
The use of courts to secure the justiciability of rights, especially sexual and reproductive rights, gained momentum across Latin America in the 1980s. During this time, legal systems and institutions emerged as key tools for social change, and both individuals and social movements began to see courts as critical arenas for advancing and expanding rights. This shift was closely tied to democratization processes that empowered the judiciary and created more opportunities for accountability.
In this context, the fight for women’s rights gained momentum, fueled by the international women’s movement and progress made in collaboration with organizations like the United Nations. Advances in sexual and reproductive health not only covered traditional areas, such as access to contraceptives, sexual health education, and reducing maternal mortality, but also addressed broader issues to promote the understanding of interdependence among human rights. These advancements included improving responses to domestic and sexual violence, promoting family equality, and fostering the recognition that these factors are essential for reproductive health and autonomy.
Case Studies in Latin America
Over the past few decades, one issue that has achieved significant victories through the courts is abortion. For example, in Colombia, abortion is legal for up to 24 weeks of gestation, while it is legal for up to 14 weeks in Argentina and for up to 12 weeks in Cuba, Mexico, and Uruguay. In other cases, abortion has been decriminalized in certain circumstances, such as risk to the mother’s life, non-viability of the fetus, and rape. In many of these countries, litigation played a key role in securing these victories, as evidenced by litigation efforts in Mexico. The Congress of Mexico City was the first to decriminalize therapeutic and elective abortion. Nonetheless, federal public servants challenged the reform as being unconstitutional. After complex deliberation processes with feminist organizations participating, Mexico’s Supreme Court ruled that the decisions were constitutional.
Social movements and feminist organizations also played a pivotal role in Colombia’s case, where, in 2006, the Colombian Court ruled in decision C-355/06 that the criminalization of abortion under all circumstances was contrary to women’s rights. Women’s Link Worldwide and other civil society organizations brought this case before the court and succeeded. Since then, legal developments have progressively expanded protections for women’s rights.
However, litigation to promote legalizing the right to choose has adopted multiple faces and strategies across the region, as it may not focus on directly challenging abortion bans. For instance, Women’s Link Worldwide challenged the attorney general in a separate case in Colombia. An outspoken anti-rights advocate, the attorney general initiated a series of actions as a public official against the legalization of therapeutic abortion in the country, including spreading false information about misoprostol and contraception methods.
In response to his attacks, WLW, working with allied groups from different regions in Colombia, found 1,280 women of reproductive age who agreed to file a complaint against the public official’s actions. The suit argued that his conduct impeded their fundamental right to information on reproductive rights. The case reached the Colombian Supreme Court, which ruled that the attorney general had indeed failed in his duties by providing false information about sexual and reproductive health and ordered the correction of the misinformation. This strategy highlights the multiple legal avenues available for making rights justiciable through litigation.
The Role of the Inter-American Human Rights System
Another key aspect of strategic litigation in Latin America is the Inter-American human rights system, which has set the stage for significant regional advancements. In the Inter-American Court of Human Rights, two key issues stand out for their importance and continuity: addressing sexual violence and obstetric violence.
Regarding sexual violence, strategic litigation has led to courts reconsidering the value of available evidence in such cases. For example, the Inter-American Court of Human Rights has recognized the fundamental importance of victims’ testimonies in the absence of other evidence, adopted a broad definition of what constitutes sexual violence, and established that sexual violence can amount to torture under certain conditions. It has also analyzed the effects of these acts on specific individuals from an intersectional perspective and taken their identities into consideration.
On obstetric violence, landmark cases like I.V. v. Bolivia and Brítez Arce v. Argentina have set crucial precedents, pushing forward minimum standards for informed consent and maternal healthcare. These rulings underscore the urgent need to train health care providers to offer dignified, respectful treatment to pregnant individuals. Both cases reflect devastating medical practices — forced sterilization in the first and the tragic death of Cristina Brítez in the second after she was denied proper medical treatment. The Inter-American Court’s decisions in these cases have been hailed as transformative, signaling a significant step forward for reproductive rights in the region.
Lessons Learned
Three crucial aspects of lessons learned in litigation for sexual and reproductive rights are the importance of having independent courts, the relevance of an Inter-American human rights treaty and court, and the significance of strengthened grassroots social movements to sustain change.
As highlighted by Women’s Link Worldwide, having an independent and knowledgeable judiciary is critical for effectively using strategic litigation in sexual and reproductive rights. Judicial independence ensures that the rights of historically marginalized groups are upheld, allowing judges to make decisions based on their legal expertise, rather than succumbing to undue pressure from other branches of government.
Additionally, the cases discussed earlier illustrate how a regional human rights system plays a pivotal role in advancing and protecting sexual and reproductive rights. These mechanisms hold states accountable and foster regional progress by establishing minimum standards and serving as platforms open to the influence of civil society organizations.
Furthermore, grassroots and community movements are essential to achieving and sustaining progress in this area. These movements create networks that support and amplify opportunities, enhancing the likelihood that strategic litigation will remain focused on the needs of victims and affected communities. This close connection to social movements also helps counter the growing influence of anti-rights groups in the region, which likewise use courts to pursue their goals.
Looking Ahead
Despite the victories won in Latin American courts, significant challenges remain. The gains from strategic litigation often confront weak state institutions and structural obstacles, leading to outcomes that fall short of the expectations of those driving these legal efforts. Consequently, while strategic litigation can have profound and far-reaching impacts, the planning process must account for the structural limitations present in each context to maximize effectiveness.
Although strategic litigation has proven to be a powerful tool, continuous regional and global dialogue is vital for further progress.
The obligation to fulfil requires States to give sufficient recognition to the right to health in national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. States are also obligated to take positive measures that enable and assist individuals and communities to enjoy the right to health. Progressive realization means that States have a specific and continuing obligation to move as expeditiously and effectively as possible toward ensuring the right to health for all.
Therefore, recording successes and failures, maintaining comprehensive documentation, and fostering open discussions are all essential for ensuring that States meet their obligations to advance and protect sexual and reproductive rights.
The author would like to thank Isabel Rubio for her research support.
DISCLAIMER: The views and opinions expressed in this piece are those of the author and do not reflect the views of the O’Neill Institute.
