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Civic groups opposed to the criminalization of abortion celebrate after the Constitutional Court’s ruling that the ban on abortion is unconstitutional on Apr. 11. (Park Jong-shik

South Korea’s women have at last been released from the shackles of the ban on abortion, which suppressed their self-determination. The Constitutional Court ruled that the section of the criminal code that punishes women who get an abortion, as well as the doctors who perform the procedure, is unconstitutional. The decision came 66 years after abortion was criminalized, in 1953.

On Apr. 11, the Constitutional Court reached a decision in a petition filed by an OB-GYN practitioner surnamed Jung who asked the court to review the constitutionality of the sections of the criminal code prohibiting abortion (Clause 1 of Article 269 and Clause 1 of Article 270). The court ruled that the sections in question were unconstitutional by a margin of seven to two.

Three of the judges backing the majority ruling preferred for the ban to be immediately struck down, but the other four agreed to let the sections stand temporarily, until the National Assembly has a chance to revise the law, in light of concerns about the chaos that might result from a legal vacuum. The court ruled that the current criminalization of abortion must be amended by Dec. 31, 2020, after which the ban will be stripped of its legal force.

The Constitutional Court concluded that the current criminal statutes about abortion – which constitute a nearly full ban on abortion, making exceptions in extremely limited cases – excessively infringe women’s right to self-determination. The court decided that abortion should be allowed before the 22nd week of pregnancy, after which the fetus can survive on its own, outside of the womb. Furthermore, the court instructed the National Assembly to regard the social and economic reality that women face as a result of pregnancy and childbirth as a legitimate reason for abortion. “Pregnant women must be provided with adequate time to consider whether to keep the baby and bring it to term,” the court said.

The three justices who wanted the criminal statutes struck down at once – Lee Suk-tae, Lee Eun-ae, and Kim Ki-young – agreed with the majority opinion up to this point, but also asserted that women should be free to choose abortion, without having to justify their decision, until the 14th week of pregnancy.

In the minority opinion, justices Cho Yong-ho and Lee Jong-seok asserted the constitutionality of the abortion ban. “Protecting the life of the fetus is a serious and critical public good. Allowing abortion could create a tendency to devalue life,” they said.

Whereas the Constitutional Court split down the middle, in a four-to-four decision, over the constitutionality of the abortion ban in 2012, the court’s decision this time presented a viewpoint that transcends the clash between the woman’s right to self-determination and the fetus’s right to life. “The safety of the pregnant woman bears a close relationship to the safety of the fetus. Considering that the pregnant woman’s cooperation is necessary for protecting the life of the fetus, that protection gains true significance when it includes the physical and social protection of the pregnant woman,” the court said in its decision.

The Constitutional Court’s decision was welcomed by the legal team that handled the constitutional petition, civic groups, and the National Human Rights Commission of Korea, all of which lauded it as a “ruling demanding respect for women’s voices.”

“The Constitutional Court ruled that the fetus’s right to life cannot be guaranteed in a meaningful way unless the woman’s right to self-determination is guaranteed,” explained Kim Su-jeong, the legal team’s top attorney.

But the Catholic Bishops’ Conference of Korea and other religious groups voiced their dissatisfaction with the decision, contending that “protecting life, once conceived, is a duty imposed on every member of our society.”

The South Korean government and the National Assembly said that they “respect” the court’s decision and will “proceed with follow-up measures.”

Jung, the OB-GYN practitioner, filed his constitutional petition in February 2017 after being put on trial for allegedly performing 69 abortions between 2013 and 2015. Jung said that the statutes that criminalize abortion are unconstitutional.

Under current law, a woman who has an abortion can face up to one year in prison or a fine up to 2 million won (US$1,755), while the doctor who performs the procedure can face up to two years in prison.

By Ko Han-sol, Choi Woo-ri, and Kim Min-je, staff reporters

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