2) Safe Abortion and Reproductive Rights for Women
A) Loss of Effectiveness of the Crime of Abortion Under the Criminal Law and
Delay in Follow-up Legislation
On June 24, 2022, the US Supreme Court, in the decision of ‘Dobbs v. Jackson Women's
Health Organization,’ overturned the decision of Roe v. Wade, which said that women's
right to abortion is protected as a fundamental right under the US Constitution. Then, the
Director-General of WHO expressed regret over the decision of the Supreme Court, and
there were much controversies in many countries. In Korea, this ruling shed light on the legal
situation that remained in a vacuum after the loss of the effectiveness of the abortion law in
the Criminal Act.
On April 11, 2019, the Constitutional Court made a decision of constitutional
nonconformity100) on Article 269(1) (Self-abortion) and Article 270(1) (Abortion by
Doctor) of the Criminal Act, which prohibit and punish women to have an abortion by
themselves or through medical personnel. It urged the National Assembly to revise the
legislation by December 31, 2020.101) At the time, the Constitutional Court saw that these
provisions completely and uniformly banned and punished all abortions without considering
various circumstances and excessively limiting the self-determination of pregnant women.
However, the National Assembly did not prepare new regulations to replace these
Criminal Act provisions, and as of January 1, 2021, the provisions punishing abortion in the
Criminal Act became invalid. However, Article 14 of the ‘Mother and Child Health Act’ and
Article 15 of the ‘Enforcement Decree of the Mother and Child Health Act,’ which prescribe
five reasons for allowing abortion, such as genetic disorders, contagious diseases, and
pregnancy due to rape, remained.102) As such, the reasons for artificial abortion are limited
in Korea, but there is no provision for punishment even if artificial abortion is performed for
other reasons.
100) A decision of constitutional nonconformity refers to a decision of the Constitutional Court that, although the
relevant law is unconstitutional, it temporarily remains in existence until the law is revised in order to avoid a
vacuum in the law and social confusion due to immediate invalidation.
101) Constitutional Court, Decided on Apr. 11, 2019, 2017HunBa127 En Banc Decision.
102) Article 28 of the ‘Mother and Child Health Act’ is also a provision that excludes the application of the ‘Criminal Act’
if it falls under Article 14 of the same Act, but the abortion crime provision in the Criminal Act was abolished and
lost its effect.
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