The Constitutional Court ruled that the provisions governing the punishment of a doctor who conducted a surgical abortion with the consent of a woman and the woman who received the abortion were inconsistent with the constitution. With the ruling, the nation is to revise laws related to pregnancy, childbirth, and discontinuation of pregnancy in 66 years.
The term “inconsistent with the constitution” is the decision that nullifies the law as virtually unconstitutional but allows it to exist temporarily until the National Assembly amend the law, to avoid any legal void and social confusion resulting from immediate nullification.
“The provision of self-abortion prohibits abortion for all pregnant women in a completely and uniformly manner and punishes violators with the only exceptions prescribed by the Maternal and Child Health Law. As it forces pregnant women to keep their pregnancy and give birth to their baby, it limits their right to self-determination,” said one of the justices who ruled the law inconsistent with the constitution.
The judge added, “The articles do not have the minimality to constitute a pertinent infringement while giving a general and absolute superiority to the public benefit of protecting the fetus’ life, and therefore they seem to run counter to the principle of balancing legal interests.”
Regarding the punishment of doctors who perform the abortion, the court ruled that “The provision of punishing a doctor who conducts abortion with the consent of a pregnant woman is also unconstitutional as it violates the constitution by limiting women’s right to self-determination.”
The court, however, ruled, “If we rule Articles 269 and 270 as simply unconstitutional, it is impossible to punish all abortions made during the entire pregnancy period, resulting in an unacceptable legal void. Although the court has ruled the regulation inconsistent with the constitution, it is appropriate to continue to apply these articles until a legislative amendment is achieved.”
Legislators must revise Article 269 Paragraph 1 and Article 270 Paragraph 1 by Dec. 31, 2020. If they fail to do so by that time, the ruling will lose validity.
Lawmakers are working on revising the law to make abortion legal. However, some are voicing for doctors’ rights to refuse to perform abortion surgery.
“It is clear that a revision of the anti-abortion law is likely to broaden the scope of legal abortion,” said Kim Cheon-soo, a professor at Law School of Sungkyunkwan University. “Even if abortion is allowed only when a woman in early-stage pregnancy requests and there is a socioeconomic reason, we have to guarantee physicians’ rights to refuse abortion surgery.”
Kim went on to say that the local legislation which recognized physicians’ rights to withhold or suspend medical care to extend life should be reflected in the amended anti-abortion law.
“Unless we have such measure, physicians who refuse abortion due to his or her conviction and conscience will be punished for violating the Medical Service Act Article 15 and the Emergency Medicine Act Article 6,” he noted.
The medical community also supports the idea of giving physicians the right to refuse medical care and abortion surgery.
“There should be a new provision that states a doctor’s refusal of abortion due to his or her belief and religious reasons is not regarded as a refusal of medical treatment, and that such doctor should not be punished,” said Kim Jae-yeon, director of the Legislation Committee of the Korean Association of Obstetricians and Gynecologists.
In amending the legislation, the state should endeavor to resolve the causes of abortion for pregnant women at risk, and should not legislate in any form to punish doctors and pregnant women by reviving the anti-abortion law, he emphasized.
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