'Pro-choice!': Constitutional Court rules against abortion ban

Abortion rights activists outside the Constitutional Court in central Seoul burst into tears after hearing the verdict ruling the abortion ban unconstitutional, Thursday. / Yonhap

By Lee Suh-yoon

The Constitutional Court overturned the country's 66-year-old abortion ban Thursday, saying it was unconstitutional to bar women from terminating a pregnancy in its early stages as it prevented them from making their own decision on personal matters.

In a seven-to-two decision, the court ruled that Articles 269 and 270 of the Criminal Act, which sentences women who have abortions to up to one year in jail or a 2 million won ($1,750) fine, and doctors who carry them out to up to two years in prison, were unconstitutional.

To prevent any confusion from a sudden removal of the ban, the court ordered the National Assembly to revise relevant laws by Dec. 31, 2020 to allow abortion in the early stages of pregnancy, with detailed regulations such as how many weeks into a pregnancy an abortion should be permitted.

The nine justices of the Constitutional Court take their seats in its main courtroom in central Seoul, Thursday, before ruling the country's blanket abortion ban unconstitutional. / Yonhap

Korea bans abortions at all stages of pregnancy, except in cases of rape and incest, the high chance of birth defects or significant health risks for the woman.

"Banning all abortion, save for a few exceptions specified by the Mother and Child Health Law, forces women to continue pregnancies and give birth, limiting their right to self-determination," said Justice Seo Ki-seok. "The exceptions outlined by the Mother and Child Health Law fail to take into account diverse and extensive socioeconomic reasons behind abortions, such as its effect on a woman's academic or workplace career, and financial problems such as an insufficient income or resources to raise a child."

The ruling is a remarkable milestone in a country where Protestant lobbying groups wield significant political clout. The case was brought to the Constitutional Court in February 2017 by an OB-GYN doctor who was criminally charged for carrying out abortions for women. The doctor claimed the ban was against women's right to pursue happiness in terms of planned pregnancies and access to a safe medical procedure.

Numbers show the abortion ban did not stop women from seeking out terminations. According to a survey by the Korea Institute of Health and Social Affairs (KIHASA), one in five pregnant women said they underwent the procedure.

Abortion rights activists cheer after hearing the Constitutional Court ruling against the abortion ban. / Korea Times photo by Hong In-ki

Proponents for the abortion ban react after hearing the court ruling. / Yonhap

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Abortion rights activists say the ruling heralds a new era where women no longer have to risk undergoing risky underground abortions or buy abortion pills from overseas sites, but get safe and timely access.

The ban has been also criticized for punishing only women but not their male partners. There have been numerous cases where partners have held women hostage by threatening to report their abortion to the authorities.

The last time the Constitutional Court ruled on the abortion ban in 2012, it upheld the ban, saying not punishing abortion as a criminal offense may "lead to more abortions."

Public sentiment on abortion has drastically changed since then. A Realmeter poll of 504 adults a day before the ruling showed 58.3 percent of Koreans supported scrapping the ban, as opposed to 30.4 percent who wanted to keep it. Except for the over-60s, the majority in all ages, regions, gender, and political inclination groups was against the ban. The 2018 KIHASA survey also showed three in four women opposed the ban.

Some abortion rights activists rallying in front of the Constitutional Court broke into tears when they heard the news.

"To be honest, I feel more wronged than happy. I can't believe it took this long," Jung Yoo-jin, 23, a university student said tearfully. "For 66 years, women could not even talk about abortions. The moment they did, they were treated as someone who did not respect life."

Abortion rights activists embrace outside the gates of the Constitutional Court. / Yonhap

Proponents of the abortion ban, who also staged rally there, said they could not accept the ruling.

"I'm very disappointed," Song Hae-jung, 55, head of a citizens' coalition for the abortion ban, said outside the court gates. "How could one assert one's human rights while harming the life of another? It makes no sense."

The abortion ban rose as a key political issue in recent years. In September 2017, more than 230,000 signed an online petition calling for the legalization of abortion and the abortion pill Mifegyne. Following the petition, senior presidential secretary for civil affairs Cho Kuk released a public message saying it was time to "find a new balance (social consensus)" on abortion.

"Women's voices, their sharing of personal accounts is what shifted public opinion on abortion," Kim-Min Mun-jeong, 51, head of Womenlink, told The Korea Times after the ruling. "This is a victory for women."