Korean Constitutional Court holds abortion law unconstitutional

Many thanks to Professor Hyunah Yang of the Seoul National University School of Law, for sharing her insights on this landmark decision of the [South] Korean Constitutional Court (Case No.: 2017Hun-Ba127, KCCR, April 12, 2019) :

Punishment for Abortion will Vanish from Korea’s Criminal Code: the April 2019 Constitutional Court Decision

by Professor Hyunah Yang,
Seoul National University School of Law

On April 11, 2019, the Constitutional Court of Korea held that Articles 269 and 270 of the Criminal Code are not in conformity with the Constitution of the Republic of Korea, by a decision of 4 (not in conformity with the Constitution) to 3 (unconstitutional) to 2 (not unconstitutional). Accordingly, these statutory provisions should be removed or revised, no later than December 31, 2020.

Paragraph 1 of Article 269 of the Criminal Code that has criminally punished abortion in Korea provides that “[A] woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won” [approximately US$1750].  This Article was first enacted as part of Korea’s inaugural Criminal Code of 1953, and has remained until today with only minor revisions. The majority opinion of the Constitutional Court in the above April 2019 decision held that this Article gravely restricts the women’s right of self-determination without providing proper social remedies to protect the life of the fetus.  The Court also held that it is not in conformity with the Constitution in that the Article forbids almost all abortions, with very narrow exceptions, such as serious congenital diseases, conception due to rape or incest, and danger to the mother’s life, without considering viability of the fetus and its developmental phases.  Article 270, that has criminally punished physicians who perform abortion with the agreement of a pregnant woman, was also held to be not in conformity with the Constitution.

In 2012, the Constitutional Court had rendered a decision on the same provisions, holding them to be constitutional, in that the right to life should be weighed much more heavily than “women’s right of self-determination.” The dichotomy between these two rights sways in the recent decision.  However, it is notable that the Constitutional Court paid great attention to the closely integrated relation between the two subjects, mother and fetus, although they are separate beings. In this special relationship, the fetus entirely depends on the mother, and the welfare of the mother is largely congruent with that of the fetus. Giving birth and child-rearing are fundamental to the life of a woman and, thus, her decision to continue or discontinue a pregnancy takes entire aspects of her existence into consideration, and, as such, her decision should be respected.

The reasoning of the Constitutional Court in the April 2019 decision almost exactly echoes what feminist scholars have claimed for the last couple of decades, accommodating women’s position regarding pregnancy-related conflicts. Pursuant to this Court’s decision, the legislature should revise relevant legal provisions so that a pregnant woman may have a lawful abortion within the period up to the 22nd week of her pregnancy.

However, there is an unclear point in the reasoning of the Court, concerning the very constitutional nature of the abortion right. Abortion is a medical, physical, ethical and social experience, and a gender “difference” issue that no male person faces. The Court ought to construct the abortion right in terms of equal rights between genders in this regard. Basing the Court’s rationale solely on the notion of the right to self-determination under Article 10 of the Constitution which is about the ‘dignity of human being’ and the ‘right to pursue happiness’ neither considers the right to gender equality nor addresses the specificities of the nature of abortion rights.

Compared with other areas of feminist movements in Korean society, the cause of abortion has not been salient until recently.  This is, I surmise, because women in Korea could and did obtain illegal abortions anyways. Despite the Criminal Code sanctioning abortion, the number of abortions per woman in Korea has been estimated to be higher than that in the United States, especially during 1980s and 1990s, although there have been no official statistics about the illegal activities.

The high estimate, however, does not signify the realization of women’s self-determination.  Rather, it was more like a sign of their vulnerability. Most abortions in Korea were performed due to family planning, preference for sons over daughters, the unmarried status of the mother, poverty or other socio-economic reasons. For many women, abortion has been ‘the last resort’ in the absence of proper contraceptives, which implies insufficient information and power to control unwanted pregnancy.  During the 1970s and the 1980s, as one of the late-developing countries, Korea’s governmental control of reproduction of the population through family planning was “the invisible hand” in women’s choosing abortion. This explains the rarity of actual criminal punishment of abortion so far. Thus, the notion of women’s choice has been a very confusing notion in this regard in Korea.

In recent years, the heightened awareness of rights to sexuality, sexual self-determination, reproductive rights and the right to health among younger generations represent notable changes.  Amid transnational phenomena such as the Polish ‘Black Friday’ and the Irish abortion referendum, there have been large scale pro-abortion demonstrations in Korea since 2016. ‘Action for Safe Abortion for All,’ an organized advocacy group, has highlighted the importance of abortion rights for minorities such as teenagers, sex workers, individuals with disabilities, and marriage-migrants.  

In order to meet these demands, not only the legislative body but also state administrative bodies such as the ministries of Welfare, Gender Equality, Labor and Education, ought to build policies that will guarantee reproductive rights, which should include education about sexuality and contraceptives, legal design for lawful abortions, universal support for access to medical information and services, and special support for minorities, not only for discontinuation but also for continuation of pregnancy. This would amount to a paradigm shift for Korea from the state of commodity-production to the state of human life-reproduction. Still, the government of Korea and its legislature could choose to interpret this decision of the Constitutional Court narrowly, by amending only the invalidated provisions of the Criminal Code and the Mother and Child Health Act.
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RELATED RESOURCES:

Republic of Korea [South Korea], Constitutional Court (Case on the Crime of Abortion, Apr 11, 2019 / Case No. : 2017Hun-Ba127, KCCR)
Official summary in “Major Decisions” on Court website
BBC News report.

Woong Kyu Sung, “Abortion in South Korea: The Law and the Reality,”   International Journal of Law, Policy and the Family 26.3 (2012): 278–305.  [reviews abortion law, policy, jurisprudence and incidence before Constitutional Court rulings of 2012 and 2019.] Abstract and Article.

“The 30th anniversary of the Constitutional Court of Korea” was recently commemorated in an I-CONnect Symposium convened by Prof. Kyu Ho Youm (Introduction). In Part III, Stanford law student Yoomin Won mentions two gender equality decisions that take note of CEDAW.  Part III: Influence of International Human Rights Law.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsInformation resources, and Reprohealthlaw Commentaries. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

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