Abortion in early stages of pregnancy is not a crime, says court

Apr 12, 2019, 08:49 am

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The nine Constitutional Court justices sit in the courtroom ahead of a ruling on anti-abortion law on April 11, 2019./ Photographed by Jung Jae-hoon

By AsiaToday reporters Heo Gyeong-joon & Kim Ji-hwan

The Constitutional Court ruled that the country’s abortion ban runs counter to the Constitution as it infringes the pregnant woman’s right to choose freely. As a result, the law that made abortion a crime punishable by up to two years in prison will be revised 66 years after it was implemented in 1953.

The court said Thursday that Articles 269 and 270 of the Criminal Act that punish both a mother and doctor for abortions are unconstitutional. The nine-justice panel made the ruling in a 7-2 vote, in response to a complaint filed by an obstetrician standing trial for carrying out multiple abortions.

But the court granted a grace period for the ruling to take effect – by December 31, 2020 – in order to give the country’s lawmakers time to revise the law, reflecting its concern that immediate legalization of abortion could cause legal confusion. The current law criminalizing abortion will remain effective until then.

Among the nine justices, Chief Justice Yoo Nam-seok and Justices Seo Ki-seok, Lee Seon-ae, and Lee Young-jin ruled the two articles in the Criminal Act “uncomfortable,” meaning that the Constitutional Court “acknowledges the law’s unconstitutionality but merely requests the National Assembly to revise it by a certain period while having the law remain effective until that time.” They said the current law limits pregnant women’s right to choose freely because it forces them to maintain pregnancy and give birth by completely banning all types of abortions throughout the pregnancy period and imposing penalties if the rules are violated.

They said the abortion ban infringes upon pregnant women’s right to choose freely by giving more weight to the value of protecting a fetus’s life.

The court also ruled that it is against the constitution to punish doctors for performing the abortion procedure upon pregnant woman’s request or with her consent.

“If punishing pregnant woman’s self-abortion is found to be against the constitution, the article that punishes doctors for performing the abortion procedure upon pregnant woman’s request or with her consent to realize the same goal is obviously unconstitutional,” the court said.

Justices Lee Seok-tae, Lee Eun-ae and Kim Ki-young went further and ruled the abortion ban unconstitutional, saying that pregnant women should be allowed to have an abortion under their own considerations and judgments even before the revision of the law.

On the other hand, Justices Cho Yong-ho and Lee Jong-seok said the abortion ban is constitutional and that the fetus has a right to life.

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