Can Korea lift abortion ban this time?

Civic groups rally in front of the Constitutional Court ahead of a public petition on the constitutionality of the current abortion law. Protesters on one side claim the law is unconstitutional (front) while those on the other side support the ban. / Yonhap

By Lee Suh-yoon, Jung Da-min

Hours before a public debate on the country's abortion ban Thursday, civic groups surrounded the Constitutional Court in Jongno, downtown Seoul. Some clutched signs saying, “The abortion ban is unconstitutional,” while a smaller group held up graphic posters of dismembered fetuses with phrases like “the Constitution must protect ALL life.”

The case was brought to the Constitutional Court by a doctor who had been criminally charged for carrying out abortions. Last time the abortion ban was challenged in 2012, the court ruled in favor of it. Although rarely enforced, the current law imposes a two-year jail term on doctors for conducting abortions, while women who have abortions are fined 2 million won ($1,850) or may face one year in jail.

Women's self-determination

The doctor and his lawyers asserted that the abortion ban strips women of their constitutional right to self-determination.

“Under the current law, women cannot determine the timing of their motherhood, this disadvantages them in education, economic livelihood, and public life,” Park Su-jin, a lawyer, said.

He also emphasized women's right to health was jeopardized by unsafe illegal procedures that are a result of the ban.

“Why does a high school student die while getting an illegal abortion for 6.5 million won?” Park asked the court, citing the dire experience and reality faced by women under the ban.

Park argued that motherhood cannot be imposed on pregnant women.

“Encouraging motherhood can only be done through a social welfare system, not by punishing abortion as a criminal offense,” she said.

Pro-life

Ministry of Justice – which defended the ban – was criticized by local media for describing women as “those who have sex but reject its consequences of pregnancy and childbirth” in a statement submitted to the court.

Ministry of Justice attorney Seo Gyu-yeong said the claimant's side consciously excluded a fetus's right to life in a court statement.

“The fetus's right to life should come before the women's decision as the court's previous ruling said six years ago,” Seo said. “There's no need to overturn the ban now.”

The ministry acknowledged the need to widen exceptional cases for pregnant women suffering social and economic pressures. But this could be accommodated through partial amendments rather than scrapping the ban, it said.

The ministry also claimed the law contributes to decreasing the number of abortions – even if the ban is rarely enforced.

According to Article 10 of the Constitution, which states the state is obliged to protect its people, a fetus's life should also be protected, the ministry said. The Abortion Law allows the state to fulfill its obligation to protect a fetus's right to life.

If the law is abolished, there would be no alternative measure to protect the right to life of a fetus, thus bringing on another unconstitutional situation, the ministry pointed out.

Call for paradigm shift

Some called for a change in the current debate structure on abortion.

“Framing the abortion issue as a battle between women's self-determination and a fetus's life frames women as perpetrators, murderers,” said gynecologist Koh Kyung-shim, who testified on the claimant's side.

Since pregnancy and childbirth occur within the body of women, the issue of abortion should be discussed within the frame of health rights of mothers, Koh pointed out.

“Discussion should be in a new framework of reproductive health,” she said.

“The chance of giving birth occurs for a woman not once but many times. Women have rights to deliberately decide whether and when to give a birth, depending on their life plans.”

The court is expected to announce its decision by September.