[WHY] Korea decriminalized abortion, but has anything actually changed?
Korea’s decades-old ban on abortion was ruled unconstitutional for the first time in April 2019. Yet, the answer to whether abortion is legal remains a difficult one because there’s still no new law that says that it is permitted.
This April 11, 2019, ruling by Korea's Constitutional Court is sort of the opposite of what has happened in the United States in the past month. While the U.S. Supreme Court has struck down Roe vs. Wade, which for nearly 50 years protected a woman's right to have an abortion, Korea went the other way, ordering the National Assembly to revise the Criminal Act that makes it illegal for women to get an abortion unless it is for medical reasons or the pregnancy resulted from rape or incest.
The Constitutional Court ruling required the National Assembly to revise the Criminal Act by Dec. 31, 2020. Fast-forward three years from that "historic ruling" and the legislature has failed to pass a new bill, making it very difficult for medical practitioners to attempt to interpret the unclear legal position.
Because no revision had been made by the end of 2020, the abortion ban did technically lose its legal effect starting Jan. 1, 2021. But with no new laws introduced clarifying the situation, doctors just don't know where they stand.
Call a gynecologist in Korea and ask, “Do you give abortions?" and you're not likely to get a straight answer. Why? Because even doctors are not sure whether it’s legal or not.
“We know that the abortion law was scrapped as of Jan. 1, 2021, but because there’s no law that spells out when and where abortions are allowed, it’s hard for us to tell patients it’s legal,” said Park Pyeong-sik, a gynecologist who has been practicing medicine for 23 years. “There’s simply nothing for us to base our judgment on.”
What was considered one of the most monumental and progressive constitutional rulings in Korean history has quickly lost its shine as the confusion on both sides of the hospital door builds with each day that the National Assembly fails to establish new regulations on abortion.
Seven bills have been put forward by six different teams of representatives and one by the government, but none have made it past the parliamentary subcommittee stage.
While “pro-choice” activists and civic groups push for the swift adoption of legislation protecting women’s rights and health, “pro-life” religious organizations and conservative doctors say that laws must be set after scrutinizing all factors, and in the strictest way possible to protect the fetus.
What’s the legal status right now?
Technically speaking, abortions are legal in Korea today because the one law that made them illegal has been ruled unconstitutional.
But although this is a legally sound interpretation, in practice, without a law that specifically says abortion is legal, most doctors and lawyers are unwilling to consider the situation resolved.
“The ‘no penalty without law’ rule applies here,” said Songhyun LLC attorney Kim Kwang-seok, referring to the legal maxim nulla poena sine lege. “The prosecution is not indicting anyone anymore and the cases that were put through to the court are receiving 'not guilty' sentences.”
But while that clears things up in the courts, the lack of a new law still causes problems in the field, Kim said.
Without a law, a lot of doctors are not confident that are permitted to perform the procedure. Worse still, patients can face a huge financial burden on top of the psychological burden because they cannot be covered by medical insurance.
“Because hospitals can’t give a straight-forward answer, patients cannot access the information they need — especially the socially vulnerable, like minors,” said Oh Jeong-won, a doctor in the department of obstetrics and gynecology at Soonchunhyang University Seoul Hospital.
“They instead end up asking around on the internet or people they know, rather than the medical experts they should be consulting. They even end up going for illegal drugs on the internet, which can be potentially more dangerous on their health.”
How many abortions take place in Korea?
Abortions may have been illegal, but that doesn't mean that they haven't been happening. A rough estimate suggests that tens of thousands of women have abortions each year, assuming both legal abortions, for people that were medically at risk or who had been the victim of rape or incest, and illegal abortions performed cash-in-hand without any official records kept.
According to the Korea Institute for Health and Social Affairs, some 342,000 abortions are estimated to have taken place in 2005. That number decreased to 169,000 in 2010 and to 50,000 by 2017. The latest data puts the number at around 32,000 in 2021.
There’s also no official data on the average cost of an abortion, but a 2021 survey by the Korea Women's Development Institute said that half of interviewees paid over 800,000 won ($620) for the procedure.
No insurance means the procedure, medicines and post-op care needs to be paid in cash.
Pills are the cheaper and — arguably — safer option, but they’re still pricy. Women are prescribed Cytotec at between 200,000 won and 400,000 won, which is originally meant for inducing early labor in pregnant women.
Hyundai Pharm, a local pharmaceutical company, requested approval for mifegymiso from the Ministry of Food and Drug Safety last year, but the drug has not been cleared. Mifegymiso is used to medically terminate early pregnancies of up to 49 days.
What legal articles need to be updated?
Articles 269 and 270 of the Criminal Act, which punish both the mother and doctor for terminating a pregnancy, need to be rewritten.
These articles were introduced in 1953 when the Criminal Act was first introduced.
According to the two articles, a woman “who procures her own miscarriage through the use of drugs or other means” can face up to a year in prison or a maximum fine of 2 million won, while “the doctor, herb doctor, midwife, pharmacist or druggist” who performs the procedure can face up to two years in prison.
Exceptions were written under Article 14 of the Mother and Child Health Act.
Under that act, women were allowed to go through an abortion if they or their spouses suffered from a disease that could affect the child or the pregnancy was due to rape or incest. In case of any abortion, the mother needed consent from the spouse.
However, even under the exceptions, the abortion must take place before 24 weeks of pregnancy.
Why did the court rule it unconstitutional?
The court ruled the two articles were unconstitutional because they did not protect a woman’s right to self-determination.
The court ruled that the previous law assigned absolute priority to the protection of fetal lives over the rights of women to their own bodies.
“An absolute ban on abortion denies and deprives women of the right to pursue their own destiny,” the court said, adding that the law “must allow women to decide freely.”
“The state forbids women from any and every abortion by imposing legal restrictions and punishment, without fully endeavoring to make social and institutional improvements to protect the life of the fetus,” reads the ruling.
“Nurturing a child requires a woman nearly 20 years of endless physical, mental and emotional effort, which may cause various socioeconomic issues such as the high economic cost, the hardships they may face in the workplace and other social situations and the difficulty in pursuing their studies. These situations are aggravated by sexist conventions, a patriarchal culture and the appalling lack of support they get in raising children.”
The court also took into account other realistic issues like the fact that the rule has not been effective in actually keeping women away from abortions, and that it has only been used as a means for men to attack women.
How was it used to attack women?
There were several cases brought to court because men reported women who had abortions as a way of retaliation. Some men were found guilty of aiding abortion, but it was usually the women and the doctors who were reported and punished.
In 2012, a woman in her 20s surnamed Ahn was fined 2 million won for having terminated her pregnancy but not her partner Lee, who made the report.
According to Ahn, they agreed to the abortion because their relationship wasn’t working and made the agreement in writing. Lee then reported her to the police several days after the procedure, saying that he hadn’t given his consent.
“We cannot rule out the possibility that Lee had disagreed with the abortion before the procedure took place,” the court said, ruling that he was not guilty of aiding the abortion.
In 2016, a 20-year-old man reported his girlfriend for having an abortion because he was “angry that his hard-earned money went to the abortion.” They were both found guilty.
There have also been multiple instances of anonymous women posting online that they were blackmailed by their partners or former partners, who used the fact that they had an illegal abortion as leverage to stop them making a complaint to the police.
There have been seven attempts at new bills. What do they say?
The most widely-known bill, which was put forward by the government in 2021, suggests that all abortions should be fully allowed until 14 weeks and partially allowed afterward, if the mother suffers from social or economic difficulties.
The strictest recommendations come from the conservative People Power Party, which says that abortions should only be permitted between 6 to 10 weeks and should be illegal afterward. The most progressive bill put forward by the Justice Party pushes for any and all pregnancies to be terminated upon the mother’s wish.
More politicians agree on the need for swift legislation, but the huge gulf between their positions has prevented any real progress. The U.S. Supreme Court ruling has further muddied the waters.
The Roe vs. Wade ruling that the U.S. Supreme Court struck down on June 24 was used as part of the Korean Constitutional Court’s argument in its 2019 ruling. That the Supreme Court has now overturned that precedent gives the pro-life lobby in Korea some serious ammunition.
“The National Assembly should look to the global scale, not just the United States,” said Nayoung, an activist at the civic group Center for Sexual Rights and Reproductive Justice. “The government bodies in charge need to build a medical system that protects a woman’s right to their health. A similar discussion must also take place politically.”
BY YOON SO-YEON [email@example.com]