Gloppen - Political determinants of sexual and reproductive health (pleasedo not quite without permission)
1.Relevance relative to the call for proposals
The project aims to understand the health effects of criminalizing sexual and reproductive behaviour andhealth services, and analyse the political dynamics that drive, hamper and shape the uses of such criminal law.
Development actors have increasingly recognised the importanceof the political determinants of health.The Marmot Commission on Social Determinants of Health (WHO 2008) argued that health is crucially determined by factors beyond the health sector, including “the distribution of money, power and resources at global, national and local levels”; a theme re-emphasized byThe Lancet and University of Oslo Commission on Global Governance for Health (2014). One direct and intentional way in which broader political decisions and power dynamics impact health positively and negativelyis through the use of criminal law and criminal justice system.This project focuses on the growing negative usesby providing insights into the causes and effects of criminalisation of abortion and same sex relations. These two forms of criminalisation are widespread in low and lower-middle income countries, and are salient both in terms of their detrimental health effects and the political dynamics involved. Moreover, the project aims to develop insights into political game changers that may improve conditions for sexual and reproductive health.
Since the 1990s, sexual and reproductive health has been recognised as key part of the international health and development agenda, and forms part of the Sustainable Development Goals adopted in September2015. The project is of direct relevance for securing access to safe and legal abortions– a life and health saving commodity for women –and for the health and access to health services ofLGBTIQs (lesbian, gay, bisexual, trans, intersex and queer people),[1] which in turn issignificant among other for HIV transmissionbetween men who have sex with men (MsM).To better understand political dynamics involved when these issues are criminalized and politicized is also relevant for the promotion of sexual and reproductive rights and health more broadly. Initiatives such as the UN Commission on Life-Saving Commodities for Women and Children, underscores the need to link commodities-focused actions and broader systems interventions and efforts.
The project is highly relevantto Norway and other donors in global health who have sought to push for de-criminalisation of abortion and same sex relations in recipient countries.Given evidence indicating thatexternal pressure maytrigger local resistance and backlash – and the many factors that co-determine how (de)criminalisation affect health services and outcomes – an active de-criminalisation agenda may be futile or counterproductive for sexual and reproductive health and rights in the absence of thorough knowledge of the political and social dynamics into which it plays. The proposed project aims to contribute to filling this gap.
2. Aspects relating to the research project
2.1 Background and status of knowledge
In the past decade, a range of states haveintroduced new criminal laws limiting the exercise of sexual and reproductive rights,revived and enforced existing laws, imposed more draconian penaltiesor narrowed the scope for the exercise of the rights (Amnesty, 2009; Makofane et al., 2014.[2] Some prominent and dramatic examples includeproposals to introduce the death penalty[3] (and enactment of life imprisonment) for some homosexual acts in Uganda, Nigeria and Gambiaand the total prohibition on abortion in El Salvador and Nicaragua. In countries without any legal change, we also increasingly see politicization, harsher rhetoric and more social engagement over issues like abortion and same sex relations.At the same time, there are countries in Africa, Latin America and Asia that have moved in theopposite direction, such as Ethiopia, which has relaxed the conditions for legal abortion and Mozambique where both abortion and homosexual relations have been decriminalised in recent years.[4]
From the perspective of political dynamics, Uganda is illustrative: After more than four years of intense political debate on capital punishment for homosexual practices (popularly termed the “Kill the Gays Bill”), President Museveni, in February 2014, signed new legislation that imposes penalties of up to life in prison for “aggravated homosexuality” and creates obstacles for LGBT advocacy.[5] In this period we also see enforcement of previously dormant sodomy provisions Activists point to a tenfold increase in anti-LGBT violence, and the Ugandan LGBT community has been driven underground. In April 2014 state officials raided a HIV research facility searching for evidence that the facility was “training youths in homosexuality” (Human Rights First 2014). Research found that criminalization of same-sex practices and sex work functioned as barriers to access HIV/AIDS services (Nyanzi2013) while LGBT respondents report overt and immediate discrimination in healthcare services. Even before the bill was passed, many service providers behaved as if it had already passed into law byostracizing, stigmatizing and excluding LGBTindividuals.
This vignette illustrates how the increased political attention and contestation over homosexuality and abortion that we currently see across continents, and the use of criminal law to regulate thesefields potentially has severe health consequences. Lack of access to legal and safe abortion is a significant cause of maternal deaths, not least in Africa, and has severe negative consequences for maternal health.Studies document high prevalence of negative health consequences (including mortality) from illegal abortions in a number of African countries where abortion is/was criminalized includingMozambique (Machungo, Zanconato and Bergström (1997),DRC (Paluku et al. 2010),and Uganda (Sundaram et al. (2013).[6]But,again,the role of the law is complex. Studies also find a high prevalence of illegal abortions in Zambia(Koster-Oyekan (1998)and South Africa(Jewkes et al. (2005) where abortion is legal. Studies have also documented negative effects of criminalization of homosexuality in the context of the HIV pandemic in Africa, including on access to HIV treatment by vulnerable groups such as MsM, on HIV transmission rates(Makofane et al. (2013); Da Silva et al. (2010); Nalá et al. (2014); Nyanzi (2012)Hladik et al. (2012)Baral et al. (2009); Poteat et al. (2011)Muyunga (2011); and Poteat et al 2011). However, the broader range of impacts of criminalization on mental and physical health, and in particular how the health and health system effects areshapedby political dynamics – remains under-studied and here the project would contribute important knowledge.[7],
Onceabortion and homosexuality become politicized, public health evidence seems to have little immediate traction among legislators and policy makers. Moreover, even when laws are reformed is not evident that systemic change follows. The law appears to be one among several factors that affect the provision and uptake of these health services and changes in the law may not in itself lead to changes on the ground. Countries with similar legal frameworks, such as the colonial laws inherited by many Sub Saharan countries criminalizing same sex relations, reveal significant variation in the level of stigma and violence against their LGBT population. Religious traditions seem to play a role, but countries with similar religious traditions differ radically in their laws and practices regarding access to abortion. This complexity calls for more comprehensive understanding of the interplay between different factors that shapepolicies and practice, and howstructural stigma affect health systems and outcomes. The mechanisms through which criminal law affects health and health systems are poorly understood, as are the political dynamics that lead to politicisation of these issues and result in changes (or not) in the criminal law. The proposed project will help improve this knowledge base.
2.2 Choice of issue: Legal Moralism and the Politics of Health
Criminalisation of abortion and same sex relations form part of a larger field of criminal law related to sexual and reproductive health and rights. Some laws render particular services or interventions illegal, such as abortion services, contraception, sex-education, FGM or gender affirming treatment. These laws are primarily directed at the health system/provider level, although often seekto change also the behaviour of potential patients/ recipients. Another set of lawscriminalizes sexual behaviourdirectly. These range from laws aiming to protect sexual and reproductive health by criminalizing rape, incest, domestic violence and harassment, to laws rendering certain forms of consensual sex between adults, such as same sex relations, adultery, or sex work, as punishable crimes. These laws are aimed at changing sexual behaviour but may also have effects at the health system/provider level.
The proposed project looks into both types of criminalisation, with prohibition on abortion falling in the first category, and criminalization of homosexual intimacy, in the latter. These two objects of criminalisation, each important in its own right,also share significant traits that warrant joint consideration. First, many of the above uses of the criminal justice system may be motivated by general liberal principles (preventing harm to others)[8] or legal paternalism (preventing harm to oneself). However, the justification for criminalising abortion and LGTB rights is predominantly normative, often religious. Thistends to place such laws in the category of legal moralism.[9] Second, this moral and religious backdrop makes the issues particularly prone to politicisation and ideological branding, which in turn render them less responsive to public health arguments and reinforces the importance of understanding the political determinants. Third, these norms affect dynamics within in the health system in ways that are likely to influence the effects of (de)criminalisation. Both areas involve issues of stigma and decisional autonomy, in ways that may haveimplications for the provision and utilisation of health services, as well as for mental health. Fourth, on these issues, international and regional engagement can contribute towards backlash and mobilisation for (stronger) criminalization/harsher sanctions. Fifth, many of the same (national and international) actors are involved, particularly on the conservative side. Studying the politics of homosexuality and abortion in Africa will not only provide a better understanding of how to navigate these dynamics, but also of how to avoid, or counter similar politicisation dynamics elsewhere (particularly in Asia and Latin America)
2.3 Questions and approach
This two-pronged study combines a mix of quantitative and qualitative methods to study selected low-to-middle income countries in Africa and asks:
(1) What are health and health systems impacts of criminalization of abortion and same-sex relations?
(2) What are the dynamics driving the trend towards criminalization– and the reverse in other countries– and what strategies are most effective in advancing change and minimising backlash?
Our theoretical departure is foregroundedin the logics of both rational choice and norm appropriateness in institutional settings(Shepsle, 2006; March and Olsen, 1984). This synthesis presumes that human behaviour is determined by individual preferences and prevailing norms but that institutions also imprint and shape these decisional logics, internally and externally. This perspective has consequence for the way in which we trace the health impacts and drivers of criminalisation.
First, we presume that the type of institution matters. With regard to the first research question, a multi-level approach is adopted and we surmise that politicisation and criminalisation affects the structure and functioning of health systemsas well as their usage bychanging the behaviour of key actorsat different levels - health policy-makers, health service providers,potential patients (in this case individuals engaging in same sex relations or seeking abortion) and the broader communities in which affected individuals live. Similarly, with regard to the second research question, we presume that the decisional logics of actors who potentially drivecriminalization (government and opposition politicians; judges; religious and other civil society actors; and voters) are shaped by their institutional setting.[10]
Second, we assume that the causal mechanismsthrough which change occurs, is by changing the actors’motivationto act in a particular way and/or their opportunity structure (the barriers and resources they face in the context)(Ostrom, 2000; Hilson, 2002). For social and political actors, the motivation to engage for or against criminalisation can be normative (for example a sincerely held belief that abortion and/or homosexuality is sinful and a treat to the moral fabric of society – or that criminalization is against human rights) or instrumental (that engagement for or against criminalizationwill advance other aims, such as electoral victory or public health). Whether and how they act on the motivation depend on their evaluation of what will best advance their cause in the context and, given their resources and constraints.For health care providers and –seekers, changes in the law (de/criminalization) and in the level of politicization of the issue, are among a range of factors (cultural, religious and professional norms, attitudes, national and international resources and allies, material incentives) that interact and impact on their decisionsregarding how to design health policies or provide or seek services. Thus, while criminalization clearly is a barrier to legal abortions,decriminalisation in itself will not automatically lead to access to safe and legal abortions or bettermaternal health outcomes. We need to understand the conditions under which decriminalisation agenda can be both advanced and made effective in practice.
To understand when and how (de)criminalisation affects health - and be able to act accordingly - it is therefore necessary to understand the dynamics at play at different levels of the health system. This is illustrated in the right hand side of Figure 1 (marked STUDY 1 HEALTH EFFECTS).Here, criminalization and politicization are the independent variables.The blue arrows signify the assumed causal links between (de)criminalization and different aspects of the health system, while the red arrows signify the independent influence of politicization of the issue (regardless of whether a legal change results). The differently coloured starssignify key actors/decision makers at different levels of the health system: The blue star illustrates health policy makers and bureaucrats who develop new health policies (or not) in response to changes in the law; the orange star illustrates health workers at different levels of service provision who may change their practice (or not) in response to the legal changes and/or politicisation of the issue; while the purple stars are potential patients who may change their health care seeking behaviour (or not) or experience changes in stigma and mental health (or not). The rays of the stars signify the different aspects of the actors’ opportunity structure, the multitude of factors that interact to determine their actions and descisions.
The project also seeks to understand the dynamics and causes leading to politicisation of abortion and same sex relations and (in some cases) to changes in the criminal law.This part of the research project is illustrated in the left hand side of Figure 1 (marked STUDY 2 CAUSES OF CRIMINALIZATION). Herecriminalization and politicization are treated as the dependent variables. The blue circle signifies the existence of criminal laws regarding abortion and/or same sex relations (with the width of the circle potentially expanding or contracting with legal changes). The red cloud signifies politicisation of abortion and homosexuality. This may overlap with and lead to changes in the criminal law, but may also be independent of legal changes and potentially have independent effects. Again, our overarching hypothesis is that in order to understand why we see politicization of and changes in criminalization of sexual and reproductive rights, it is necessaryto understand key actors’ opportunity structure – and how these interact in different arenas (parliamentary politics, courts, media). At the national level, key categories of actors include political decision makers (represented by the red star); judges (represented by the blue star); and pro- and anti abortion and LGBTIQ civil society actors (including religious leaders, NGOs, human rights/public health community, media) represented by the black and green stars respectively. Each category of actors is ideologically diverse, and may contain actors who are pro sexual and reproductive rights (SRR) as well as anti-SRR actors. International actors (such as pro- and anti SRR activists, donors, public health experts, and international court and treaty body members) also seek to influence domestic laws and policies. The international level actors are particularly significant in the African context with a high level of donor engagement, not least in sexual and reproductive health.
2.4 Case selection
As indicated in Table 1 below, the cases selected vary with regard to the status and direction of criminalisation in order to best assess the health impacts and the causes behind social change. Given the prominent role of role of religious norms and actors in these issues, we have selected two sets of country cases: one set of predominantly Christian countries from Sub-Saharan Africa (Zambia, Mozambique, Malawi, Uganda, Ethiopia, Kenya and South Africa) and one set of predominantly Moslemcountries from North Africa (Egypt, Sudan, Tunisia). This permits the project to probe the effect of religious and cultural differences on dynamics related to criminalisation of abortion and LGBT rights and the health effects arising from this. However, for the pillar on health effects, we will narrow the group of countries to acore group due to the more limited financial resourcesavailable to the project and the operational difficulties of research. This core group is Ethiopia, Mozambique, South Africa, Uganda and Sudan (italicised below).