The Korean Constitutional Court (‘KCC’) on April 11, 2019, ruled that the abortion ban was unconstitutional and ordered the law needs to be revised by the end of 2020. The case dealt with a constitutional challenge by a female doctor who was being criminally prosecuted for performing abortions. Under the relevant law (the Criminal Act), women who have abortions must be penalized, except in cases of rape, incest, or health risk (Art. 269) and doctors who perform abortions at the request of or with the permission of pregnant women must be jailed (Art. 270).
At the time, South Korea was one of the few countries that still criminalized abortion. The abortion ban had been in place since the first criminal legislation was enacted in 1953. The main purpose of the law was the prevention of sex-selective abortion on the ground of a preference for sons. Whether (or not) abortion ought to be criminalized has not been the most controversial issue before the KCC so far, but among women’s rights activists and feminist scholars it has been regarded as one of the most crucial issues regarding women’s self-determination rights. When the Court handed down the decision, pro-choice activists and feminist lawyers celebrated and imbued this landmark decision with significance, saying that “finally women are going to be recognized as human beings who can decide their own destinies/lives out of the compulsory motherhood”. Some young women said that the ruling made them feel that, finally “female voices were being heard in what is a deeply patriarchal society.”
The KCC’s arguments: from 2012 to 2019
The KCC has ruled on abortion in the past, too. In 2012, the Court stated that:
‘the right to self-determination includes the right to decide on pregnancy and birth, i.e. the right not to be forced to sacrifice oneself in the process of pregnancy and delivery. The provision (Criminal Act, Art. 270) basically bans abortion in order to protect fetus regardless of its stage of development or ability of independent survival, therefore it violates the right to abortion which is drawn from Article 10 of the Constitution.’
The Court also stated however that ‘…it could not be said that the burden on women due to [the] abortion ban is more serious than the public interest, i.e. protection of [the] fetus’ life.’ The Court admitted that the relevant provision was not effective in preventing abortions. However, the court found that, fear of criminal prosecution would still dissuade some people from getting an abortion. Further, the Court raised a concern that there would be a disvaluing of human life, absent an anti-abortion provision. The Court therefore found the provision still did promote legitimate public interests and the abortion ban was found not to be out of proportion when balanced against these public interests. The KCC therefore declared the provision constitutional, while four Justices dissented. (KCC Case No: 2010Hun-Ba402, 23 August 2012)
In 2019, in a 7-to-2 vote, the Court overturned this precedent. Four out of seven Justices found that the abortion ban has a just legislative purpose, to protect the fetus’ life, and that criminalizing abortion was a proper means for realising this purpose. However, they found that the relevant provisions restricted women’s right to self-determination by completely banning abortion during the whole period of pregnancy and forcing women into maintaining unwanted pregnancies and delivery. Considering that the pregnant woman’s safety is deeply connected with the fetus’ safety, and that her cooperation is necessary to protect the fetus’ life within her, the justices said that the notion of “protection of [the] fetus” only has meaning when pregnant women are also protected, physically as well as socially. Moreover, they suggested that preparing ex-ante/ex-post social and institutional measures to prevent unwanted pregnancies and thereby reducing the abortion rate is a more effective way to protect fetus’ lives. They also contended that putting an absolute priority on the public interest unproportionally violates women’s right to self-determination, hence they found the provisions to be unconstitutional. However, they declared relevant provisions “unconformable to the Constitution” rather than “unconstitutional” due to a concern about leaving a legal vacuum.
Three Justices, while agreeing with most of arguments put forward in the main judgment, partly dissented from it. They noted that pregnant women should be able to get abortions during the ‘first trimester’ (from the first day of the last menstrual cycle through to the end of the 14th week of pregnancy) on demand and without the need to meet any requirements. They further noted that only declaring the relevant provisions unconformable would have the consequence that these provisions remain in effect for the time being. With the relevant legislative provisions still in effect, women in their first trimester, seeking an abortion on demand without any reasons, would still be at risk of criminal prosecution – as would medical professionals performing such abortions. Finally, the finding of unconformity undermines the intention behind the provision for judicial review of statues and statutory provisions (provided for in Art. 47 para. 2 of the Constitutional Court Act), and imposes too heavy a burden on the people affected. Consequently, the 3 Justices found the provisions to be “unconstitutional”.
In conclusion, the Court ruled that the provisions were “unconformable to the Constitution”, due to the lack of a quorum (6) on the finding of “unconstitutional”, and ordered the lawmakers to revise the law by the end of 2020. (KCC Case No: 2017Hun-Ba127, 11 April 2019)
How does “unconformable to the Constitution” different from “unconstitutional”?
Both the previous and the new abortion cases of the KCC include the case code “Hun-Ba” in the case numbers. The case code “Hun-Ba” is used for constitutional complaints made pursuant to Art. 68 para. 2 of the Constitutional Court Act (a form of constitutional complaint provided for in South Korea, which is fairly unique in the world). Whereas the case code “Hun-Ma” is used for constitutional complaints made pursuant to Art. 68 para. 1 of the Constitutional Court Act (the more typical form of constitutional complaint known in the rest of the world).
When legislation is found to be unconstitutional, the KCC does not necessarily hold that it is literally “unconstitutional”; instead, it might hold that it is “conditionally unconstitutional”, “conditionally constitutional”, or “unconformable (to the Constitution)” These are various types of findings of unconstitutionality. When the KCC’s judgments are translated, these terms are not always translated in exactly the same way. It is worth noting therefore that the phrase most often translated as “unconstitutional” is also sometimes translated as “simple unconstitutionality” and the phrase most often translated as “unconformable to the Constitution” is also sometimes translated as “nonconformity to the Constitution”.
Legislation is held to be “unconstitutional” when it is found to be unconstitutional (and unsavable), a finding of “unconstitutional” results in the law losing its effectiveness on the date the decision is issued. Legislation is held to be “conditionally unconstitutional” when the Court finds that a certain aspect of a provision or a particular form of interpretation results in a provision being unconstitutional while the same provision interpreted another way would still be constitutional. Accordingly, a finding of “conditionally constitutional” means that a law is constitutional if it is interpreted in a certain way, therefore it could also be restated as ‘unconstitutional in certain contexts’. The so-called “conditional…” rulings, which concern the form of interpretation, has caused tension between the Constitutional Court and the Supreme Court, which has final authority on the of interpretation of laws.
A finding of “unconformable (to the Constitution)” means that the Court confirms a law’s unconstitutionality, but leaves it in effect for a limited period. The Court will make a finding like this when it wants to prevent chaos in society due to a lack of regulation of a certain issue or when it wants to provide the legislature (the National Assembly) with an opportunity to revise the legislation under their legislative authority and discretion. So, when the Court makes a finding like this, it also requests that the legislature revise the relevant legislation within a certain period, and, if the legislation is not revised within that period, it loses its effectiveness on the last day of that period. In the 2019 abortion case, the Court required of Parliament to make amendments to affect a proper balancing of the two legal interests by the end of 2020.
Jeong-In Yun is a Research Professor at Korea Universitiy and currently also a Kathleen Fitzpatrick Visiting Fellow in the Laureate Program in Comparative Constitutional Law at Centre for Comparative Constitutional Studies, Melbourne Law School.
Suggestion citation: Jeong-In Yun, “Recent Abortion Decision of Korean Constitutional Court” IACL-AIDC Blog (31 July 2019) https://blog-iacl-aidc.org/2019-posts/2019/7/31/recent-abortion-decision-of-korean-constitutional-court