hankyoreh

By Yeo Hyun-ho, senior staff writer

The Constitutional Court ruled on August 23 that an item in the criminal code prescribing jail time for those who perform abortions was not in violation of the constitution.

The split four-four ruling came in the hearing of an appeal by a midwife identified by the surname Song, who asked for review of Article 270, Item 1 of the criminal code on consensual abortion. The court also affirmed the constitutionality of Article 269, Item 1, which prescribes punishment for self-induced abortion at any point during a pregnancy. The rulings are expected to draw a fierce outcry from women’s rights groups.

In its ruling, the court said the item on consensual abortion was not in violation of the Constitution because "the right to life is also acknowledged for the fetus" and abortion would become "far more widespread" in the absence of severe punishment. The court also said there was a "strong possibility for censure against people like midwives, who are charged with protecting the fetus's life, performing a procedure that takes away the fetus's life." Based on this argument, it said the prescription of jail time without any other option for consensual abortion was not excessive.

The court's ruling on abortion was based on the judgment that the fetus's right to life takes precedence over the mother's right to choose. This contrasted with the dissenting argument that the mother's right should be respected, at least in the case of abortions early on in the pregnancy.

The opinion in favor of the item's constitutionality, written by Justices Kim Jong-dae, Min Hyeong-ki, Park Han-chul, and Lee Jung-mi, stated that any embryo arising from a fertilized egg implanted in the uterus should be recognized as a living being.


"The fetus is itself a separate living being, and will very probably grow into a human being barring any special circumstances," the opinion said.

It went on to express concern that the absence of stern punishment for abortion as an act that violates a fetus's right to live would result in the procedure becoming widespread. Its claim is that abortion cannot be permitted on any social or economic grounds besides the exceptions granted by the Mother and Child Health Act. The opinion said it was not in violation of the Constitution for the criminal code to prescribe punishment in cases of consensual abortion, which refers to procedures performed with the consent or at the request of the mother. It also said that allowing only light punishments for midwives and others who perform the procedure would make it impossible to prevent it from being done for profit.


The dissenting opinion by Justices Lee Kang-kook, Lee Dong-heub, Mok Young-joon, and Song Doo-hwan said that the state's obligation to protect the fetus also included "helping with difficulties experienced by the mother during pregnancy and after childbirth."

"A country's legislative measures to protect life may vary in the degree and means of protection according to the stage of development in human life," they said.

Based on these premises, the opinion said that a fetus in the first and second trimester should be viewed differently from one in the third trimester, when its life can be more or less equated with that of a human being. In particular, it noted that a fetus in the first trimester does not have the neurophysiological structures to feel pain, and the abortion procedure during this time is relatively simple and free of side effects. Based on this, it said abortions should be permitted during this period in the interests of the mother's right to self-determination, if only to reduce the risk of medical problems from an illegal procedure.

Song was indicted in 2010 for performing an abortion of a six-week-old fetus.

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