The Constitutional Court ruled Thursday that the country’s decades-old abortion ban runs counter to the Constitution, overturning its 2012 decision.
In a landmark decision, the court ruled 7-2 that criminalizing abortion restricts pregnant women’s rights to self-determination by forcing them to maintain the pregnancies, though giving birth and child-rearing have a “decisive” impact on women’s lives.
“The article criminalizing abortion results in forcing pregnant women to bear physical and psychological burdens of maintaining pregnancies, physical pain and danger that giving birth entails, and also social and economic suffering,” the court said in the verdict.
The ruling in itself will not immediately legalize abortion.
The current law criminalizing abortion will remain effective through Dec. 31, 2020, until lawmakers pass a bill reflecting the court’s decision. If lawmakers fail to pass a related bill, Articles 269 and 270 of the Criminal Code will become invalid.
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!”
Only a few meters away, scores of anti-abortion activists denounced the decision, shouting, “Protect women and fetuses! The state must perform its duty to protect the fetus’s right!”
Activists from both sides have held rallies and press conferences in front of the Constitutional Court since Thursday morning.
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 expected, 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.
An opinion poll by Realmeter in 2017 showed that 51.9 percent were in favor of abolishing the ban. When the pollster conducted the survey in 2012, 53.1 percent of respondents said abortion should not be legalized.
