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, and called 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 allowing abortion has broad support among South Korean women of childbearing age. In a government-financed survey of 10,000 women aged 15 to 44 last year, three-quarters called for liberalizing abortion regulations.
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 by up to one year in prison or face a fine of up to 2 million won, or 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.
In South Korea, abortion until recently carried little of the emotional or religious significance 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.
Women’s rights groups have recently started to push back against what they called the government’s tendency to regulate a woman’s right to choose.
“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 abortion. Last week, Cardinal Andrew Yeom Soo-jung, the Roman Catholic archbishop of Seoul, the capital, repeated his church’s opposition against the movement to repeal 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 law that bans abortion that is rarely enforced while the procedure remains widespread.
In 2012, the last time it ruled on the case, the Constitutional Court judged the anti-abortion law as 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 by 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 money to raise offspring.
The institute attributed the drop in the number of abortions to a declining number of childbearing-age women and the increasing use of condoms and other means of contraception. But doctors and experts have warned 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 been seldom 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.”