Constitutional Law on Abortion in Latin America and the Caribbean: A Regional Consensus Towards an International Custom or a Peremptory Norm of Jus Cogens?

Authors

Ligia Castaldi, Ave Maria School of Law.

Abstract

The Inter–American Court of Human Rights recently declared the existence of a jus cogens right to a healthy environment: could it lawfully reach the same conclusion regarding a right to abortion? This paper examines constitutional law and constitutional jurisprudence on abortion in Latin American and Caribbean countries to determine whether a regional consensus exists on abortion rights in the region. The paper looks at landmark abortion decisions favoring abortion rights in Colombia and Mexico, as well as broad abortion decriminalization through statutory reform in Argentina, Uruguay, Haiti and Cuba. The paper also looks at prenatal right to life protections in eight Latin American and Caribbean countries including Guatemala, Honduras, El Salvador and Dominican Republic, full abortion bans and partial decriminalization under non–punishable grounds in countries such as Ecuador and Chile. The paper concludes that no regional custom or regional consensus on abortion rights currently exists in the region, either of the kind required for a peremptory norm of jus cogens or for a rule of customary international law.

Recommended Citation

Ligia Castaldi, Constitutional Law on Abortion in Latin America and the Caribbean: A Regional Consensus Towards an International Custom or a Peremptory Norm of Jus Cogens?, 57 U. MIA Inter-Am. L. Rev. 41 ()
Available at: https://repository.law.miami.edu/umialr/vol57/iss1/4