SEOUL, 11 April 2019:
South Korea’s Constitutional Court today said a law criminalising abortion was unconstitutional – a landmark ruling which will overturn a ban on abortion that had been in place since 1953.
The court said in a statement the outright ban on abortion, as well as a law that made doctors who conduct abortions with the woman’s consent liable to criminal charges, were both unconstitutional.
However, the court said the current law would remain in effect until the end of next year, after which it will be scrapped.
The court had previously upheld the abortion law in 2012 in a closely divided decision, dividing the eight justices evenly.
“The law criminalising a woman who undergoes abortion of her own will goes beyond the minimum needed to achieve the legislative purpose and limits the right of self-determination of the woman who has become pregnant,” the court said in its ruling.
South Korea’s ban on abortion dates from 1953, when the country’s criminal law was first enacted after the 1950-1953 Korean War, and had not changed materially since.
The law states that a woman who undergoes abortion will serve a prison sentence of one year or less, or pay a fine of 2 million won or less.
The law also states medical professionals – including doctors who engage in abortion at the request of the woman – will serve a prison sentence of two years or less, and have their license suspended for seven years.
There are exemptions, with current law allowing abortions within 24 weeks of becoming pregnant – for medical purposes such as a hereditary disease or the pregnancy causing grave danger to the health of the mother, or in the case of pregnancy through rape.
“If the case does not fall under an exemption, the law forces the pregnant woman to maintain the pregnancy completely and uniformly without exception even in cases where there are circumstances causing conflicts about abortion due to diverse, widespread societal and economic reasons,” the court said.
The court’s ruling reflects the trend toward decriminalising abortion, as the number of actual cases where abortion was criminally punished had been falling.
Only eight new cases of illegal abortion were prosecuted in 2017, down from 24 in 2016, according to South Korean judicial data. Out of the 14 abortion cases that were decided in lower courts in 2017, 10 postponed a ruling on condition that no crime be committed for a certain period.
The number of abortions in South Korea has been dropping as well, with the estimated number of abortions among women aged 15 to 44 at 49,764 in 2017, down from 342,433 in 2005 and 168,738 in 2010, due to increased use of birth control and a drop in the total number of women aged 15-44, according to Korea Institute for Health and Social Affairs.
Meanwhile in US, North Dakota Republican governor Doug Burgum signed legislation yesterday – making it a crime for doctors to perform a second-trimester abortion using instruments like forceps and clamps to remove the foetus from the womb.
The move came the same day that Ohio’s Republican-controlled legislature passed one of the nation’s most restrictive abortion bans – outlawing the procedure if a doctor can detect a heartbeat. The bill now goes to Republican governor Mike DeWine, who is expected to sign it.
Georgia’s Republican-controlled legislature in March also passed a ban on abortions if a foetal heartbeat is detected, which can often occur before a woman even realises she is pregnant.
Activists on both sides of the issue say such laws, which are commonly blocked by court injunctions, are aimed at getting a case sent to the US Supreme Court, where conservatives hold a 5-4 majority – to challenge Roe v Wade, the landmark 1973 decision that established a constitutional right to abortion.
The North Dakota bill, which Burgum’s spokesman, Mike Nowatzki, confirmed in an email that the governor signed, followed similar laws in Mississippi and West Virginia.
Known as HB 1546, it outlaws the second-trimester abortion practice known in medical terms as dilation and evacuation, but which the legislation refers to as “human dismemberment.”
Under the North Dakota legislation, doctors performing the procedure would be charged with a felony but the woman having the abortion would not face charges.
Similar legislation exists in Alabama, Arkansas, Kansas, Kentucky, Louisiana, Ohio, Oklahoma and Texas – but is on hold because of litigation, according to the Guttmacher Institute, a reproductive rights group.
Abortion-rights groups challenging such bans argue they are unconstitutional as they obstruct private medical rights.
North Dakota has one abortion provider, the Red River Women’s Clinic in Fargo. Clinic director Tammi Kromenaker did not immediately respond to a request for comment. She previously said her clinic would wait for a decision in a case involving similar legislation in Arkansas before deciding on a possible legal challenge to HB 1546.
– Reuters