South Korea Could Finally Decriminalize Abortion

South Korea’s president nominated two progressive judges to the country’s top court this month, raising the possibility that a longstanding abortion ban could be repealed.

The Constitutional Court is slated to rule next month on a challenge to the ban , which makes abortion punishable by up to two years in prison for doctors who illegally perform the procedure. An obstetrician initiated the challenge after he was charged in 2017 with performing 69 illegal abortions from November 2013 to June 2015.

“This isn’t just whether or not you’re going to jail. It’s about how hard it is for women to get a safe abortion and protect their health,” Ryu Min-hee, core counsel on the case and an attorney at Korean Lawyers for Public Interest and Human Rights, told GlobalPost last year. “We hope that the Constitutional Court of Korea will make the right decision on this, because it’s long overdue.”

South Korea is one of the few developed nations that prohibits and punishes abortions under most circumstances. A 1973 amendment to the country’s 1950s ban made it possible for women to be allowed access to abortion if they faced grave health risks or if their pregnancies were the result of rape or incest, for example. But those who terminate their pregnancies for other reasons face fines and up to a year in prison.

The Constitutional Court upheld the ban in 2012, saying in its decision that abortion would “end up running rampant” if not punished. But both public opinion and the makeup of the court have shifted since then, raising expectations in legal circles that this ruling could be different.

A widely cited 2018 poll  of 10,000 South Korean women, for example, found that 75 percent of respondents between the ages of 15 and 44 said abortion should be decriminalized. The National Human Rights Commission, an independent government body, also weighed in on the sensitive issue in an opinion to the Constitutional Court.

“Punishing women who undergo abortion based on Article 269 of the Criminal Act infringes on their right to self-determination, right to health, right to life and reproductive rights, among others,” the commission said in its written statement.

Meanwhile, the court is moving in an increasingly progressive direction as more justices retire and are replaced. On March 20, President Moon Jae-in nominated Moon Hyung-bae and Lee Mi-sun to succeed justices whose six-year terms end April 18. If appointed, they will be among six progressive justices on the nine-person court — though it’s not clear if the incoming justices will be appointed in time to rule on the abortion case.

Korean media reports that the court plans to rule on the case by April 11, just a week shy of the departing justices’ retirements.

“The presiding judge, Judge Cho Yong-ho, is trying to handle the case within his term,” a member of a constitutional law circle told The Hankyoreh newspaper. “They say in the Department of Justice that he is making an effort to handle the case quickly.”  

Justices could decide to repeal the ban due to increasing public pressure but if Cho and his conservative colleagues lean toward upholding it, progressive justices could cite insufficient time and delay the decision until after his retirement.