South Korea’s Constitutional Court on Thursday ruled as unconstitutional a 66-year-old law that made abortion a crime punishable by up to two years in prison, calling for an amendment to the law.
The court gave Parliament until the end of 2020 to revise the law. If lawmakers do not meet that deadline, the law will become null and void. It currently remains in force.
The verdict represented a landmark, if tentative, victory for abortion rights advocates, who have campaigned for the law’s abolition as a major step in bolstering women’s rights. Polls show that allowing abortion has broad support among South Korean women of childbearing age. In a government-financed survey of 10,000 women ages 15 to 44 last year, three-quarters called for liberalizing abortion regulations.
In its ruling, the court called the anti-abortion law “an unconstitutional restriction that violates a pregnant woman’s right to choose.” But it left it to Parliament to decide whether to restrict abortions in the late stages of a pregnancy.
In South Korea, abortion is widespread despite the ban, which allows exceptions such as in cases of rape or when a woman’s health is at risk. Under the country’s criminal code, a woman who undergoes an abortion can be punished with up to a year in prison or a fine of up to 2 million won, about $1,750. A doctor who performs an abortion faces up to two years in prison.
But the ban on abortion has rarely been enforced. In 2017 alone, 49,700 abortions took place, nearly 94 percent of them illegally, according to estimates released in February by the government-run Korea Institute for Health and Social Affairs. But between 2012 and 2017, just 80 women or doctors went to trial for their involvement in abortions and only one of them served time in prison, with the rest receiving fines or suspended jail terms, according to court data.
Until recently, abortion carried little of the emotional or religious significance in South Korea that it does in many Western countries.
In the 1970s and 1980s, as the government struggled to curtail population growth, it told families that “two children are one too many” and looked the other way as abortions became widespread.
In more recent years, however, the country has tried to reverse its falling birthrate, which is one of the lowest in the world, with an average of less than one child per woman. The government’s attitude toward abortion has also shifted, with officials often calling it unpatriotic and threatening to crack down on the procedure.
“When there were too many people, they told us ‘not to produce babies’ in the name of family planning, and when they thought there were not enough people, they then told us ‘to produce babies’ or face punishment,” a coalition of women’s groups campaigning for abortion rights said in a statement in February. “We can no longer put up with this deceitful frame.”
At the same time, some obstetricians and Christian activists have pushed a morality-based campaign against abortion in recent years, running a hotline for people to report doctors who perform illegal abortions. Last week, Cardinal Andrew Yeom Soo-jung, the Roman Catholic archbishop of Seoul, the capital, repeated his church’s opposition to repealing the anti-abortion law, calling on South Korea to “protect women and fetuses from abortion.”
But both camps were on the same page in denouncing the hypocrisy of having a rarely enforced abortion ban on the books while the procedure remains widespread.
“The ruling marks an important stride in strengthening gender equality and women’s right to make choices for themselves,” a civic group, People’s Solidarity for Participatory Democracy, said Thursday in a statement.
The Catholic Bishops’ Conference of Korea said that it “deeply deplores” the court’s decision. “It denies a fetus its basic right to life,” the group said in a statement. “Abortion is the crime of killing an innocent life during pregnancy.”
In 2012, the last time it ruled on the issue, the Constitutional Court found the anti-abortion law to be constitutional, recognizing a fetus’s right to life.
The number of abortions has been dropping in South Korea, from 342,000 in 2005 to 49,700 in 2017 among women of the same age group, according to estimates from the Korea Institute for Health and Social Affairs. A majority of women surveyed by the institute said they chose abortions because they feared that raising children would interrupt their educational pursuits or professional careers or because they did not have enough money to raise children.
The institute attributed the drop in abortions to the declining number of childbearing-age women and the increasing use of contraception. But doctors and experts have said that the actual number of abortions could be much larger than the official estimates.
The office of President Moon Jae-in had no immediate reaction to the court’s ruling on Thursday.
The government’s Ministry of Gender Equality and Family had called for the abolition of the anti-abortion law, which it called a “dead document” because it had seldom been enforced. They said the law had forced abortions underground, exposing women to medical accidents.
The Ministry of Justice has defended the ban on abortions, saying “it is the state’s duty to protect a fetus’s right to life.”