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Abortion constitutional nonconformity ; Results reversed after 66 years

Sixty-six years after the enactment of criminality of abortion in 1953, the Criminal Code Chapter 27 about the crime of abortion is gone in Korea. In other words, we will no longer consider abortion a crime in Korea. Let's look at ‘the abortion constitutional inconsistency judgment in April 11.’ This day will go down in history. Then let's see what challenges remain in the future.
 

What is illegal abortion?

An illegal abortion was a crime that occured when an embryo is discharged from the mother by an artificial method prior to natural birth, or by the removal of the embryo by the use of drugs. In Korea, this is stipulated in Article 269 and Article 270 of the Criminal Act. Article 269 (1) of the Criminal Act corresponds to ‘self-abortion’. It stipulates the establishment and punishment of the abortion obtained directly by the pregnant woman. According to this article, when a pregnant woman has an abortion by drugs or other means, she is sentenced to less than one year in prison or a fine of 2 million won or less. Article 270 of the Criminal Act details punishment for those who help a pregnant woman to abort. Therefore, the punishment for abortion by a person engaged in medical field such as a doctor, a doctor of Oriental medicine, a midwife, or a pharmacist is stipulated in Article 269, in consideration of the specificity of their jobs. So, they are sentenced to less than two years in prison, even if they have consent or permission from the pregnant women. In addition, the Maternal and Child Health Law, which is designed to protect maternity and ensure the healthy birth of children, prohibits abortion in principle. But abortion is permitted only if the mother is pregnant from incest or rape, or if the pregnancy poses a serious threat to the health of the mother.

On the other hand, the Constitutional Court made a constitutional nonconformity decision about abortion on April 11, 2019. If the relevant law is not revised by December 31, 2020, the laws that stipulate the crime of abortion will be totally abolished. A constitutional nonconformity is a decision that recognizes that a provision is unconstitutional. But the provision is valid only until a certain point in time. It considers the fact that some articles can cause social confusion if they become ineffective immediately. If it is not amended after the constitutional nonconformity decision, the articles lose its effect immediately.

As mentioned above, abortion is illegal if it is not recognized as a specific reason prescribed by the Maternal and Child Health Law. Therefore, most women who want abortions in Korea take abortion drugs or surgery in a negative way. According to the Ministry of Health and Welfare's report on abortion, the abortion rate per 1,000 people is estimated to be 4.8 in 2017. However, considering that abortion is still illegal in Korea, accurate statistics cannot be obtained, and the society of obstetrics medical association estimates that the average number of abortions is between 3,000 and 1 million annually. Even if the statistics are correct, it is true that one in five pregnant women (19.9%) have had abortions. There is also a method of medicine without surgery. An abortion pills can also be sold through SNS and various websites such as Instagram and Twitter. It is often said that the medicine is fake or has side effects such as shock, low blood pressure, and headaches. Women who experience side effects are unlikely to be able to sue the seller or claim for damage because the drug itself is illegal.

If so, what efforts have people made to abolish abortion? There is an event that became the beginning of the abolition movement. On November 10, 2011, a midwife was accused of aborting a six-week-old fetus. She asserted the unconstitutionality of the crime of abortion and requested constisutional complaint against statues to the Constitutional Court. The court opened arguments on the controversial issue. In order for the law to be found unconstitutional, more than six judges must approve the decision. But, On August 23, 2012, the Constitutional Court held that the opinions of the judges were divided into four saying it was constitutional and four saying it was unconstitutional. At that time, the Constitutional Court ruled that punishment for abortion was constitutional. They said, “The fetus is separate from the mother and is likely to grow into a human being, so the right to life is recognized."

There was another crucial case. In 2016, an obstetrician, A, was sentenced to a year in prison with two years  probation because of 67 abortion surgeries. As a precedent incident, he made a constitutional complaint in February 2017. Mr. A claimed that the crime of abortion violates the freedom to determine the timing of pregnancy and childbirth for women. Also, he said it violates the health rights of pregnant women because they cannot receive safe pregnancy abortion surgeries. In addition, he said that abortion by doctors is less dangerous than abortion by an ordinary person. Unlike seven years before, seven judges ruled that abortion was unconstitutional. Finally, on April 11, 2019, it was decided that the current punishment for abortion should be revised.

 

Movement in Korea

In addition to the two cases, many citizens participated in the movement for the abolition of illegal abortion. For example, in the beginning of the first Moon Jae-in government in 2017, the controversy of "Abolition of illegal abortion” was born by more than 230,000 people participating in the National Petition. Actually, according to a survey of 10,000 women conducted by the Korea Institute for Health and Social Affairs on February 14, 2019, 75.4 percent of women said they should amend the punishment for abortion. Only 3.8% of respondents did not think that revision was necessary. The reason for the amendment was that 66.2% (multiple answers) answered ‘punishing only women is unfair’, followed by 65.5% of respondents who answered ‘violates the right to health of women’, lastly 62.5% of the respondents that "the choice of a childbirth is basically a personal choice". There are also people in the street who had a direct movement. About 1,500 civic and women groups demonstrated in July 2018 in Gwanghwamun Central Plaza. They introduced the history of the women's movement and spoke in public about abolishing the punishment of abortion. They showed examples of the abolition of illegal abortion abroad and took time to say brave words of women with many stories. On March 30, 2019, a total of 1,500 people attended a rally, which was organized by numerous women, human rights, civil society groups, and progressive parties. The rally is called “abolition of punishment of abortion joint action for everyone." The members of the group held a one-person protest in front of the Constitutional Court up to the moment when the decision of nonconformity was made in April 2019. In addition, they had meaningful discourse that addressed the recognition of women's abortion rights including teenagers, gender minority, and low-income women.

There are also government agencies that have changed because of the efforts of citizen. On March 19, 2019, the National Human Rights Commission of Korea (NHRCK) announced that it had officially submitted a statement on the Constitution that "punishment of abortion is unconstitutional." It is the first time in history that the NHRCK made comments on abortion. Surprisingly, the Constitutional Court decided to give it a positive review. The Ministry of Justice, which seemed to wish to maintain existing law, showed a subtle change in its position. They declared that it is impossible to eliminate the punishment of abortion, but that they can be prospectively examined for allowance of abolition. According to the Supreme Court, 96 abortion cases had been handed over for trial since 2012. More than half ended in being sentenced to probation. In this way, the court already had a voice saying that the punishment of abortion was not good work, so the Ministry of Justice agreed that the existing law should be discussed again. In June 2018, Justice Minister Park Sang Ki said that it is necessary to discuss the amendment in order to expand criteria of the Maternal and Child Health Law that limit the abortion level of women. It shows the changing movement of the government.

 

What’s the plan for an amendment?

Even before an amendment law is discussed, many women and health and medical professions are confused about pregnancy period limits on abortion. According to the World Health Organization (WHO), 12 to 14 weeks of pregnancy is the time before the skeletal development of the fetus, so they do not recognize the fetus as a life. Therefore, there is an opinion that abortion should be permitted within 12 to 14 weeks of pregnancy. On the other hand, many professions assert that abortion should  take in consideration of not only maternal right of life but also social and economic reasons, such as economic condition, social conflict, and socio-cultural background. WHO considers the independent survival of the fetus to be possible from 22 to 24 weeks of pregnancy. The professions insist that unless there is a threat to maternal health, abortion should be allowed within 22 to 24 weeks of pregnancy. Such inclusion of socioeconomic reasons may increase the duration of abortion. Looking at overseas cases, Switzerland, Germany, Denmark, Italy, Spain, Germany and others set a reference point in the 10 to 12 weeks of pregnancy. The UK and the Netherlands have extended their coverage to 24 weeks, reflecting the self-determination of pregnant women.

Until the 12th week of pregnancy, WHO recommends pharmacological methods as the safest abortion method. In Korea, on the other hand, surgical abortion are more common. In fact, according to the survey on abortion by the Ministry of Health and Social Affairs in February 2019, out of 756 women who had abortions, 90.2% received artificial abortion surgery. Artificial abortion surgery can be divided into 'curettage', which uses a sharp curette to scrape the contents of the uterus, and 'vacuum aspiration,' which sucks out the contents of the uterus by connecting a gently curved suction tube with a vacuum pump. In the case of curettage, the WHO recommends aspiration because of the high risk of injury to the lining of the uterus. However, aspiration also requires general anesthesia and is likely to cause endometriosis and uterine perforation. In Korea, whether doctors perform aspiration and curettage is often dependent on whether there is any residue. However, it also depends on the mother's condition and pregnancy period. In an interview with the media ‘Money Today’ in May 2019, a gynecologist said, “Because doctors do not learn enough, there are many cases of curettage that can damage the lining of the uterus even though there is safer method or situations that do not require curettage.” Thus, there is a voice in the healthcare field that priority should be given to mothers' health rights and abortion should be regarded as an essential medical service. It is necessary to re-educate existing gynecologists and to put the education into the course of medical services in nursing and pharmacy colleges and so on.

There is a lack of reliable information in medicine as well as medical technology. Since 2005, the WHO added the abortion pill ‘Mifegyne’ to a list of essential medicines, but introduction and distribution of those drugs is still illegal in Korea. As a result, most of the women in Korea who brought ‘Mifegyne’ did so through the web site "Women on Web (WoW)". WoW is a site created by a gynecologist who lives in the Netherlands. It is a group that aims to help people access safe abortion methods, to promote women's health, and to provide educational materials. On-line counseling costs 70 ~ 90 euros (90,000 ~ 110,000 won) along with the delivery of abortion drugs to countries where abortion is illegal. In Korea, about 2,500 women in 2017 got the drugs with the help of WoW. On the website, women who joined the site share the reason why they aborted. Also "Q & A" room is set up to answer questions such as drug type, timing of taking drugs, recommendation of drugs and side effects. However, on March 15, 2019, the government blocked access to the WoW homepage by government HTTPS censorship. As a result, it is a terrible situation that the information about abortion pills is not available and now even the insufficient supplier is broken. Therefore, regulations should be made to allow information on abortion drugs to be disclosed and to import them sooner.

 

Overseas

According to the Worldwide Abortion Allowance, 98% of the countries have legally allowed abortion to save the lives of pregnant women. Among them, 61 countries (39.5% of the population), including the United States, the United Kingdom, Australia, Austria, Canada, France and Germany, do not limit the reasons for abortion. Let's take a look at the countries that have shown many changes in recent years.

Among the European countries, Ireland is the country that has made the greatest change. In 1983 the amendment to Article 8 of the Constitution, which abolished abortion in Ireland was passed. Power was held in the hands of the conservative party with ties to Catholics. A woman and a clinic could be sentenced to up to 14 years in prison if they are found to have secretly performed an abortion in Ireland. So far, 170,000 Irish women have gone to foreign countries for abortions and up to 2,000 women illegally tried to have drug abortions every year. In 2011, many citizens, including politicians, crowded into downtown Dublin, shouting the slogan "Repeal the 8th." This demonstration was called the  “March for Choice”. Eventually, the number of participants increased to 20,000 in 2016, the fifth year in a row. In response, the Irish government voted in May 2018 in response to the people's demands. Eventually, the 8th Amendment, which prohibits abortion, came to an end with a vote of 66% versus 35% in favor of abolishing the amendment. The result came into the spotlight because Ireland is a country where the population is 88% Catholics. Now, in Ireland, abortion has become possible for women within 12 weeks of pregnancy if they wish, and abortions of 12 to 24 week are also allowed when there is a health problem in the fetus, or when the pregnant woman is experiencing health problem.

 

In addition, many countries are still struggling. Argentina allows abortion only when the mother's life is in danger or when she is raped. However, there are a lot of complex allowance procedure and many doctors refuse surgery. On August 14, 2018, 72 Argentine senators voted to allow abortions by 14 weeks of gestation and if a woman requests abortion. But the bill was rejected by 38 votes opposing, 31 votes in favor and 3 abstentions. At that time, thousands of protesters on the streets called for passage of the bill, and 18,000 people watched the vote on YouTube. Then, on March 1, 2019, CNN News reported that an 11-year-old girl, Lucia, who was raped in Argentina, reportedly gave birth to a baby by cesarean. Lucia was able to abort because she was pregnant by rape, but the authorities delayed the abortion because it was uncertain who was Lucia's the legal guardian. It took about 2 months for these legal procedures, so Lucia had passed 23 weeks of pregnancy, and the hospital decided that she could not have abortion. This shocking incident again raised the issue of abolition of abortion. Proponents of abortion say that they should have a discussion on the abortion legalization bill again. Abortion advocates are spreading the hashtag with the phrase "#Girls, not mothers" in SNS, and many citizens from all over the world are participating in this campaign.

On the other hand, in the United States, which has acknowledged a relatively wide range of abortion rights in 1973 that can be abolished by the end of the twenty-fourth week of pregnancy, a regressive move is emerging. In the United States, abortion is a major cultural issue which separates progressives and conservatism. Democratic tendencies generally support 'women's choice (pro-choice)', while Republicans prefer the opposite 'pro-life'. Federal and state law has long allowed doctors and nurses to opt out of providing abortions. Republican President Donald Trump also wants to get a vote from Christians, ensuring that a doctor's right to exercise his veto of abortion before the reelection. In January 2019, the New York State enacted a law to strengthen the punishment of women's abortion by appointing judge Brett Kavanaugh, who is a famous misogynist, as a Supreme Court justice. In eleven states including Georgia, Texas, and Mississippi, adoption or discussion of the ‘Fetal heartbeat bill’, which prohibits abortion after a physician has confirmed the heartbeat of the fetus. Abortion is prohibited in the 6th week when the embryo is implanted in the uterus and the 'heartbeat' can be confirmed by ultrasound. However, it is virtually impossible to recognize the pregnancy before 6 weeks. Thus, the debate on abortion in the United States is strongly political. Article 15 (1) of the US Medical Service Act stipulates that a doctor cannot refuse medical treatment without justifiable reasons. Also, Conscientious objection to abortion is permitted by law. In addition, even if doctors refuse abortions, doctors have the obligation to send pregnant women to hospitals where they can receive abortions. As we have seen, many states are trying to strengthen the punishment of abortion, the government emphasizes only Article 15 (1) of the Medical Service Act, "vetoing abortion." Then the other law on abortion like medical services for the right of pregnant is likely to become useless.

But, the recent flow is changed again. Abortion will be allowed in New York after 24 weeks of pregnancy. New York Gov. Andrew Cuomo signed the "Reproductive Care Act" on February, which passed the New York State Senate and House of Representatives for more than 24 weeks. The law calls for allowing abortions if there is a risk to the life and health of pregnant women and their unborn children, even if they are 24 weeks or more. In New York, several abortion bills have been introduced, but failed to do so due to opposition from Republicans, who had control of the state Senate. However, the bill could have been passed as the Democratic Party took control of the state Senate in last year's election. The Supreme Court ruled in a case known as “Roe vs. Wade"  that "women have a constitutional right to choose to terminate their pregnancy until six months after conception," and that most laws that punish abortion violate the constitutional right of privacy under the provisions of the 14th Amendment." Also included in the package are the "Comprehensive Contention Cover Act," which mandates medical insurers to apply insurance to contraceptives used by patients, and the "Boss Bill," which bans employers from discriminating against employees for reasons of abortion.
 

Abortion is still a global issue. In this situation, it’s remarkable that we made the decision on the abortion constitutional inconsistency. But we still have a lot of work to do. I think it is necessary for the National Assembly to gradually open a forum for debate to revise the legislation. It would help to collect public opinion of all citizens and to examine cases of other developed countries.


신지원  sjw46121@naver.com

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