The Constitutional Court ruled Thursday that the country’s decades-old abortion ban runs counter to the Constitution, paving the way for a revision of the criminal code 66 years after it was established.
In a landmark decision that overturned its 2012 ruling, the court ruled 7-2 that criminalizing all abortions — even in the early stages of pregnancy — restricts pregnant women’s rights to self-determination by forcing them to maintain the pregnancies.
The court saw that a fetus is considered as close to be a human being after 22 weeks of pregnancy. Before that period, women’s rights to self-determination outweighs a fetus’s right to life as giving birth and child-rearing have a “decisive” impact on women’s lives, according to the verdict.
“(The current law) limits the pregnant woman’s right to choose freely, which is against the principle that infringements on a person’s rights must be kept to a minimum,” it said.
The ruling in itself will not immediately legalize abortion.
The court ordered lawmakers to pass a revision reflecting the court’s decision by Dec. 31, 2020. The current law criminalizing abortion will remain effective until then. If lawmakers fail to pass a related bill, Articles 269 and 270 of the Criminal Code will become invalid.
In a dissenting opinion, two justices said that the articles were constitutional, arguing that a fetus has the right to life and the state can ban abortions to meet its duty to protect its people for public interest. If not punished, more abortions will take place, they noted.
Hundreds of women and men gathered in front of the court in central Seoul to celebrate the decision, chanting, “Abortion is unconstitutional. We won!” and “New world! Right now!”
“The ruling is an achievement for women who have fought for their rights on streets. South Korean women have been forced to have babies and end pregnancies by the state,” Na-young, an activist who has led an association of civic groups advocating women’s rights, in front of the court building.
“It is a chance to change history,” she said.
Only a few meters away, scores of anti-abortion activists denounced the decision, shouting, “Protect fetus’ human rights. Protect lives!”
“Through the Constitutional Court’s decision, Korea declared itself as a country accepting murder of a fetus in the name of the right to self-determination,” said an association of 77 civic groups in favor of the abortion ban in a statement.
Activists from both sides have held rallies and press conferences in front of the Constitutional Court since Thursday morning.
The government said it respects the court’s decision.
“Relevant ministries plan to cooperate in taking follow-up measures, without a hitch, to the court’s decision today,” it said in a statement.
Abortion has been illegal in South Korea since 1953, except in cases of rape, incest or severe hereditary disorders and where the mother’s health is at risk. All abortions, without exception, have been illegal after 24 weeks of gestation.
Women who terminate their pregnancies can be jailed for a year or fined up to 2 million won ($1,750), and doctors who perform the procedure face up to two years in prison, though they have rarely been prosecuted for abortions.
The current case was filed in 2017 by a female doctor who was prosecuted in 2013 for conducting 69 abortions. She filed a petition arguing the abortion ban violates women’s right to happiness.
In 2012, the court recognized a fetus’s right to life and ruled the abortion ban had not excessively restricted pregnant women’s rights to self-determination. It also said abortion would run rampant if not punished.
A historic decision in favor of the pro-choice movement had been widely anticipated, given the change in the composition of the Constitutional Court. Six of the nine justices were appointed under the Moon Jae-in administration and at least three had publicly said the ban on abortion should be reconsidered.
Calls to scrap the abortion ban have gained momentum in recent years amid a growing feminist movement.
According to a survey on 504 adults released Wednesday by Realmeter, 58.3 percent of the respondents were in favor of abolishing the abortion ban. When the pollster conducted the survey in 2012, 53.1 percent of respondents said abortion should not be legalized.