In a landmark ruling on Thursday, South Korea’s Constitutional Court overturned a ban on abortion that has stood for more than 65 years, saying the current law unconstitutionally limits women’s rights.
The court said 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.
“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.
Seven of the court’s nine justices ruled the law unconstitutional, while two dissented.
In 2012, the law survived a previous challenge when the court was split evenly, four to four, with one seat unfilled at the time.
A survey by polling firm, Realmeter, last week found that more than 58 per cent of South Korean respondents favoured scrapping the ban, while a little over 30 per cent wanted to keep it.
“I believe this ruling frees women from one shackle that had been suffocating them,” said Kim Su-jung, a lawyer representing the plaintiff, a doctor, who was charged under the law with conducting 69 illegal abortions.
The court’s ruling reflects the trend toward decriminalising abortion, with the number of actual cases where abortion was criminally punished falling in recent years.
Only eight new cases of illegal abortion were prosecuted in 2017, down from 24 in 2016, according to South Korean judicial data.
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 and down from 342,433 in 2005.
It is also down from 168,738 in 2010, due to increased use of birth control and a drop in the total number of women in that age range, according to the Korea Institute for Health and Social Affairs.
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 1,756.08 dollars (2 million won) or less.
The law also states that 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.
In all those cases, the woman must have the permission of her spouse, according to the law.
“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.
However, the court said the current law would still remain in force until the end of next year