Six years after upholding abortion ban, the Constitutional Court is reviewing whether or not abortion should be decriminalized.
In August 2012, the court’s four judges out of the eight-judge panel voted to keep the ban. The other four voted to overturn it. The panel failed to get six votes in favor of overturning it, which led to the conclusion that abortion would be illegal in Korea.
At 2 p.m. on Thursday, the court began to review the petition whether it would be constitutional to penalize a doctor who was prosecuted for performing abortions and a woman who underwent an abortion.
The obstetrics and gynecology doctor was indicted for performing 69 abortions from November 2013 to July 2015 at the request or with the approval of women.
During the first trial, the doctor claimed that Articles 269 and 270 of the Criminal Act were unconstitutional and applied for an appeal to the Constitutional Court. However, his request was rejected. On Feb. 8 last year, he appealed to the Constitutional Court to seek a confirmation of the constitutionality of abortion ban.
The biggest issue of the court’s review on Thursday was whether giving two-year jail term to a woman’s abortion (Article 269, Paragraph 1) and a doctor’s abortion on a request/approval of a woman (Article 270, Paragraph 1) infringed on the right of self-determination of the pregnant woman and freedom of the doctor to do his job.
“As a fetus depends its survival and growth entirely on the mother, it cannot be regarded as an equal level of life as a separate life form,” the lawyer on the physician’s side said. “Also, the clause for self-abortion ban limits the right of women to determine whether to get pregnant and whether to give birth and make choices for timing, thus infringing on the women’s right to self-determination.”
Regarding heavier penalties on physicians who perform an abortion, the lawyer said, “Although abortions by non-professionals are more dangerous than those by physicians, the law banning a physician’s abortion procedure violates the principle of equality and infringes on the freedom of doctors’ work.” The lawyer urged the court to decriminalize abortion.
Koh Kyung-sim, director of the Humanitarian Practice Medical Association who attended the trial as a reference witness for the applicant, also claimed that making abortion legal would enhance the women’s health and protect motherhood.
“Punishing abortion is not effective in eradicating abortion but rather causes unsafe abortion and risk of health problems for women,” Koh said. “Penalizing it does not provide the right information and adequate medical service. This particularly threatens health and dignity of the socially vulnerable groups including teenage women, disadvantaged women, and economically-weakened women.”
However, the Justice Ministry said, “A fetus is a separate life from the mother, and if there is no special circumstance, it is highly likely to grow into a human being. A fetus has a right to life.”
“Protecting the life of a fetus is a significant public interest, and it is inevitable to penalize abortion to prevent a rapid increase of abortions,” the ministry added. “Under unavoidable circumstances, exceptional abortions are possible under the Mother and Child Health Act.”
The ministry went on to say that as the advancement of medicine increases the likelihood of fetal survival outside the mother’s body, it was unfair to allow all abortions at the beginning stages of pregnancy.
“If we allow abortions for socio-economic reasons, it would be the same as allowing abortion in general, which will also be unfair,” the ministry said.
The justice ministry also said that penalizing doctors for performing abortion should remain intact.
As most of the abortions are performed by doctors and doctors are more likely to be accused due to abortion than the general public, punishing doctors for the procedure would not go against the constitutionality, the ministry said.
Professor Jeong Hyeon-mi at Ewha Womans University Law School, a testifier for the justice ministry, said as the Constitution and the criminal law view the right to life as an essential legal interest, abortion itself cannot be regarded as unconstitutional.
“However, the exceptional limits of abortion under the Mother and Child Health Act are too narrow. We should either allow it for socio-economic reasons additionally or allow abortion at the beginning of pregnancy (within 12 weeks),” she added.
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