This is a draft translation of the official summary of the Constitutional Court of Korea decision upholding the long-standing ban on abortion in South Korea. The court was split 4-4; six votes would have been needed to declare the ban unconstitutional. This decision has been reported on in numerous English-language media outlets, including AFP and the Guardian. Any links in the text have been added for clarification, and are not present in the original.
On August 23, 2012, the Constitutional Court of Korea ruled that the portion of Criminal Act Article 270 Paragraph 1 relating to “midwives” (hereinafter “the instant provision”), which specifies up to 2 years in prison for a midwife who causes an abortion at the request or with the consent of the pregnant woman,isnot unconstitutional.
Justices Kang-Kook Lee, Dong-Heub Lee, Young-Joon Mok, and Doo-Hwan Son joined in a dissenting opinion, and Justice Dong-Heub Lee also issued aseparate opinion concurring in the dissent; the remaining Justices joined in the opinion of the court.
□ Background of the Case and Provisions at Issue
― Background of the Case
○ The complainant is a midwife who has operated a midwifery practice in Busan since about February 2009 under the business name “○○○ Midwifery,” and was indicted on the charge that“on January 28, 2010, at said midwifery practice, she was requestedby a pregnant woman to abort a fetus in the 6thweek of pregnancy, and caused the abortion by artificially extracting said fetus from the mother’s body by placing a vacuum apparatusinside the pregnant woman’s uterus”; during her trial (Busan District Court 2010godan2425), the complainant filed a request for adjudication on statute constitutionality(Busan District Court 2010chogi2480) with regard toArticle 270 Paragraph 1 of the Criminal Act, on which thecriminal punishment was based, but the request was dismissed.Accordingly, on October 17, 2010, the complainant filed the instant constitutional complaint, asserting that Article 270 Paragraph 1 of the Criminal Act is unconstitutional.
― Provisions at Issue
The matter at issue in this case is whether the portion of Article 270 Paragraph 1 of the Criminal Act (as amended 12/29/1995 by Act No. 5057) relating to “midwives” (hereinafter “the instant provision”) is unconstitutional; the contents of the provision at issue and related provisions are as follows.
Criminal Act(as amended 12/29/1995 by Act. No. 5057)
Article 270 (Abortion by a physician etc., and nonconsensual abortion)
① Aphysician, Oriental medicine practitioner, midwife, pharmacist or druggistwho has caused an abortion at the requestor consent of the woman, shall be imprisoned forup to 2 years.
Criminal Act (as amended 12/29/1995 by Act. No. 5057)
Article 269 (Abortion)
① A woman who has aborteda pregnancy by drugs or other means shall be subject to punishment of up to 1 year in prison or a fine of up to 2 million won.
② A person whohas induced an abortionat the woman’s request or with the woman’s consent shall also be subject to the punishment of Paragraph 1.
Mother and Child Health Act (as amended 1/7/2009 by Act No. 9333)
Article 14 (Restrictions on permission to conduct surgery to artificially terminate a pregnancy)
① A physician may conduct surgery to artificially terminate a pregnancywith the consent of the patient and spouse (here and hereinafter, including cases of de factomarriage), only if the case falls under one of the following subparagraphs.
1. The patient or spouse has a eugenic or genetic psychological or physical disorder specified by presidential decree
2. The patient or spouse has a contagious disease specified by presidential decree
3. The pregnancy was caused byrape or quasi-rape
4. The pregnancy wasconceived bypersons related by blood or marriage who are not legally permitted to marry one another
5. Continuation of the pregnancy either is severely harming the health of the mother, or is at risk of doing so.
□ Summary of the Decision
○ Whether the self-abortion clause (Criminal ActArticle 269 Paragraph 1) is unconstitutional
Human life is precious, and is the basis of humanity’s existence, which is valuable beyond anything in this world; the right to this life is one of the most fundamental basic human rights.Afetus must depend on the mother for the continuation of its life, but by the same token,its life is separate from the mother’s, and because in the absence of extraordinary circumstances the probability is high that it will grow into a human being, the fetus too must be recognized to possessa right to life. The Constitution protects the life of the fetus because it is a living being that is expected to become human, not because the fetushas the ability to survive independently or has mental capacities such as the capacity for thought or self-awareness.Therefore, whether a fetus has the capacity to survive independently cannot be thestandard of judgment forwhether abortion is permitted.However, the likelihood that the fertilized egg will successfully implant in the uterus is not especially high merely because fertilization has occurred; because at that stage it is difficult even to confirmpregnancy, not treating afertilized egg that has not yet implantedin the uterus the same as the subsequent fetus can be recognized as reasonable to some degree, and in addition, because the fetus is capable of living independently from the mother atthe onset of contractions, it is reasonable to treat it as a human fromthat time forward.If abortion were not punished or if only non-criminal sanctionswere imposed, it would become much more prevalent than it is today, and the legislative purpose of the self-abortion clause would be impossible to achieve; it is unclear whether sex education, the wide use of birth control, and support for pregnant women, etc., can be sufficient to prevent unwanted pregnancies, but these means are insufficient to effectively prevent illegal abortions.Furthermore, the legislature does permit the fetalright to life to be restricted in extreme circumstances, by permitting abortion within the first 24 weeks of pregnancy in exceptional cases, such as certain eugenic or genetic mental or physical disorders (Mother and Child Health Act Article 14, and Article 15 of the Enforcement Decree of that Act).In addition to this, if the grounds for permission were extended to cover abortions on social or economic grounds, the self-abortion clause wouldeffectivelybecome a dead letter, and abortion would happen openly, possibly even leading tothe spread ofdisregard for human life.Furthermore, the personal interest of the mother in self-determination, which is limited by the self-abortion clause, can hardly be considered more important that the public interest in protecting the right to life of the fetus, at which this clause is aimed.Accordingly, because the self-abortion clause does not appear to constitute an excessive restriction on the right of the pregnant woman to self-determination, in its failure to permitabortion early in pregnancy or for social or economic reasons, the self-abortion clause is not unconstitutional.
○ Whether the instant provision is unconstitutional
Although the instant provisionspecifies solely punishment by imprisonment fora midwife who has caused an abortionat the request or with the consent of the pregnant woman, nonetheless the upper limit of the punishment specified by law is twoyears of imprisonment, which is not especially high, and also even in the absence of extenuating circumstances or mitigation of the punishment by law, the door is left open for probation or a suspended sentence for the comparativelyminor crime of abortion, and therefore the instant provision does not specify an excessively severe punishment that would prevent a sentence from being imposed that is proportionateto the degree of culpability and the specificsof the case.Thus, the instant provision does not violate the principle of proportionality between culpability and punishment.
– Regardless of the manner in which it is done, abortion poses a high risk of depriving the fetus of life, and because it is difficult for ordinary persons to do, the majority of abortions are done by medical professionals who are knowledgeable about abortion; it is all the more reprehensible forpersons working in professions that are required to protect the life of the fetus to engage in procedures that deprive the fetus of life.Furthermore, it is unlikely that a minor fine would have sufficient deterrent power for midwivesengaging in the profitable activity ofmisusing their skill in abortive surgery or their knowledge of abortifacient drugs.In view of these considerations, the legislature’s failure to specify a fine in the instant provision, in contrast to the crime of consensual abortion under the Criminal Act (Article 269 Paragraph 2), does notviolate the constitutional principle of equality by unbalanced criminal punishment.
□ Dissenting opinion (Justices Kang-Kook Lee, Dong-Heub Lee, Young-Joon Mok, and Doo-Hwan Son)
○ Whether the self-abortion clause is unconstitutional
The government’s obligation to protect the fetus must be considered to include assisting with the difficulties that women faceduring pregnancy or after childbirth, and when the government takes legislative actionto protect human life, the degree and means of that protection may vary depending on the stage of development of human life.
At the current level of medicine, the fetus is considered to have no possibility of independent survival through the 24th week of pregnancy, and therefore, after the 24th week of pregnancy at which the fetalcapacity for independent survival is recognized, the fetal life can be equated to a human life to a certain degree, and therefore abortion by the pregnant woman is generally prohibited, and it is preferable to permit abortion only in cases of exceptional circumstances such as a risk of substantial damage to the life or health of the pregnant woman.In view of the fact that abortion in the second trimester (weeks 13–24 of pregnancy) poses a greater risk of complications than abortion in the first trimester (weeks 1–12 of pregnancy), and that the risk of harm to the life or health of the pregnant woman increases due to the abrupt increase in maternal mortality rates, it can be considered permissible for the government to be involved in abortion in the second trimester, such as by regulating abortion procedures so as to promote maternal health.
However, in the medical community, a fetus in the first trimester of pregnancy (weeks 1–12) is generally deemed not to have the neurophysiological structures or functions needed for conscious experience, such as thought, self-awareness or mentalcapacity, and a fetus in the first trimester thus cannot feel pain, while the maternal mortality rate and complications due to abortion in the first trimester are much lower due to the surgical proceduresbeing simpler, and therefore in the first trimester there isabundant reasonto permit abortion out of respect for the pregnant woman’s right of self-determination.In view of the urgent need for countermeasures against the frequent occurrence of cases ofrisk to the health or life of the pregnant woman due to illegal abortion, there is at the very leasta need to permit abortion in the first trimester, out of respect for the pregnant woman’s right of self-determination.Accordingly, the self-abortion clause violates the principle of minimum infringement.
Currently, the abortion provisions of the Criminal Act are virtually a dead letter, and do not contribute greatly to the eradication of abortions; therefore, it does not appear that the public interest of protecting fetal life, at which the self-abortion clause aims, can still be achieved via the self-abortion clause; in contrast, the prohibitionand punishment of abortion even in the first trimester utterly failsto respect the self-determination ofthe pregnant woman in terms of whether to continue the pregnancy; the personal interest of the pregnant woman in self-determination, which is restricted by the self-abortion clause, is not to be taken lightly, and therefore the benefit of the law lacks the requisite balance.
Consequently, the self-abortion clause is unconstitutional in absolutely and uniformly prohibiting and punishing abortion even in the first trimester and thus infringing on the pregnant woman’s right of self-determination.
○ Whether the instant provision is unconstitutional
As seen above, the self-abortion clause is unconstitutional in its uniform punishment of abortion by the pregnant woman even in the first trimester, and therefore the instant provision, which prescribes criminal punishment for midwives who conduct abortion with the consent or at the request of the pregnant woman in the first trimester in order to achieve the same objective, is unconstitutional within the same range.
Accordingly, the instant provision, as well as Article 269 of the Criminal Act and the portion of Article 270 Paragraph 3 related to Paragraph 1 must be declared unconstitutional, insofar as“abortion” is construed to include “abortion within the first 12 weeks of pregnancy.”
□ Opinion concurring in the dissent (Justice Dong-Heub Lee)
○ Even if abortion in the first trimester of pregnancy is permitted out of respect for the pregnant woman’s right of self-determination, legislative actionmust be taken so that medically safe abortion procedures can be conducted while also enabling the pregnant woman to make a decision about abortion after sufficient reflection.In other words, the legislature needs to devise prior measures such as consultation with experts, to enable the pregnant woman to make a decision about abortion after sufficient reflection.Consultation must be for the purpose of contributingto the protection of fetal life by encouraging the pregnant woman and instilling in her a vision of life with a child, and must assistthe pregnant woman in makinga responsible decision according to her conscience.