This article belongs to the debate » Comparative Legal Perspectives on Abortion
07 February 2023

From Population Control to Reproductive Justice

Decriminalization of Abortion in South Korea

On 11 April 2019, South Korea’s Constitutional Court ruled that the ban on abortion was unconstitutional. As a result, South Korea’s legislature had to revise its 66-year-old anti-abortion law by 31 December 2020. This historic decision was made possible in response to the advocacy of a number of feminist groups, doctors’ organizations, disability rights groups, youth activists, and religious groups in South Korea, who collectively formed the Joint Action for Reproductive Justice in 2017.1) Although the overall goal of reproductive justice movements was to change the law that threatened women’s health and lives through the criminalization of abortion, one of the main steps of the movements toward that goal was to challenge the previous framework of pro-choice versus pro-life. Moreover, the reproductive justice movements also emphasized that more than protecting a woman’s right to freely choose whether or not to have a baby, the government has a responsibility to promote Koreans’ sexual and reproductive health and rights as a social justice matter. However, after the Constitutional Court decision, the National Assembly failed to meet the deadline and the criminal codes on abortion expired. Since 1 January 2021, abortion has been completely decriminalized in South Korea, but no new law has been enacted, thus leaving abortion without legal regulation.

A powerful tool for population control (1960s–2005)

Since 1953, South Korea’s Criminal Act (Articles 269 and 270) has strictly prohibited abortion on any grounds. Despite this, from the 1960s to the 1980s, the major goal of South Korea’s population policies was to reduce the total fertility rate so that the country could receive international aid for economic development.2) Under the anti-natalist policies of this era, abortion was widely practiced and recommended by the government. Many women could easily access abortion and sterilization procedures at family planning clinics. As a result, South Korea’s Family Planning Program was evaluated as the most successful example of a population control project as the country’s total fertility rate, which was 6.0 in the 1960s, declined to 4.5 in the 1970s, then to 2.8 in the 1980s, and then dropped further to 1.6 in the 1990s.3) In South Korea from 1989 to 2009, the number of abortions was estimated to range from 30 million to 50 million annually; however, during this time, an average of 5.6 abortion cases were prosecuted annually, which indicates the government’s limited enforcement of the anti-abortion law.4) Yet, although the abortion restrictions were not typically enforced in South Korea during this time, women still experienced barriers to accessing abortion. For instance, women seeking abortions had to get permission from their male partners, and because it was technically illegal, they could not always access the best health care services and information related to abortion.

The criminalization of abortion (2005–2012)

South Korea’s population policies shifted dramatically after the total Korean fertility rate dropped to 1.08 in 2005, which at that time was the lowest rate in the world.5) In 2005, to boost this rate, the South Korean government passed the Framework Act on Low Birth Rate in an Aging Society, revived the enforcement of the criminal codes on abortion, and set up The master plan for the prevention of illegal abortion.6) Furthermore, Minister of Health and Welfare Jae Hee Chun acknowledged that the government was establishing abortion prevention policies to stimulate population growth, explaining that halving the abortion rate would significantly increase the country’s total birth rate.7) In this changed political terrain, the Pro-Life Doctors’ Association was formed in 2009, and their first political act was to report obstetrics and gynecology clinics that performed abortions to the police. The unprecedented anti-abortion campaign had a direct impact on women. During this period, women who had unwanted pregnancies often went to other countries to have abortions because they could not find doctors in South Korea who were willing to risk being prosecuted.

The first Constitutional Court review regarding the criminal law on abortion occurred in 2010, when a midwife was charged with performing an abortion. In 2012, the Constitutional Court decided the ban was constitutional. The court’s decision noted that “the fetus’ right to life is in the public interest” while “a woman’s right to choose abortion is in an individual’s interest,” concluding that, thus, “women’s rights cannot be more important than the fetus’ rights.”8) Following this decision, a teenage girl died during a complicated abortion procedure in November 2012. When the abortion procedure did not go smoothly, instead of transferring the patient to the hospital—which could have potentially saved her life—the doctor did not do so because he was afraid of being prosecuted for engaging in an illegal abortion procedure.9) As a result, the doctor was sentenced to one year in jail for engaging in the abortion procedure.10)

The contemporary movement to decriminalize abortion (2016–2019)

 Mass protests were triggered in September 2016 by the Korean Ministry of Health and Welfare’s announcement of an amendment to the Medical Service Act that defined surgical abortion as an “unethical” medical practice and strengthened the punishment for doctors who aided in illegal abortion.11) These governmental efforts to further criminalize abortion and abortion providers fueled public outrage, which led to the first mass protest to demand the decriminalization of abortion in South Korea.12) The first rally was held in Seoul on 15 October 2016.

As the abolition of the criminal codes on abortion became an urgent item on the feminist agenda in South Korea, Joint Action for Reproductive Justice was launched in 2017. The attorneys who were members of Joint Action formed a defense counsel for the Constitutional Court lawsuit. Initially, the constitutional appeal was filed in 2017 by a medical doctor who was prosecuted for performing an abortion, and the case focused on the criminal code regulating abortions conducted by doctors (Article 270). The attorneys and activists of Joint Action contacted the doctor and reached an agreement to proceed with the case as a public interest lawsuit, thus shifting the central issue to the criminal code on abortion (Article 269).13) The public hearing for the case was scheduled for 24 May 2018.14) The defense counsel wrote a 171-page pleading paper for the public hearing, and during the research and writing process, members of Joint Action played an active role by working together and sharing different groups of women’s experiences to be reflected in the paper.15)

At the same time, Joint Action lobbied the parties, government ministries, and activist groups to submit amicus briefs to the Constitutional Court. As a result, the Ministry of Gender Equality and Family, the National Human Rights Commission of Korea, and the Green Party Korea submitted amicus briefs stating that the government should change the current criminal codes on abortion to protect women’s rights, including the right to abortion.16)  To bring public attention to the case and build a public consensus to abolish criminal codes on abortion, during the Constitutional Court’s review of the case, Joint Action organized large rallies, an ongoing one-person demonstration in front of the court building, a signature campaign, and open forums; in addition, they participated in several TV debates.17) Since public opinion about a law could indirectly influence the Constitutional Court’s decision, Joint Action tried to keep public attention on the issue.

Finally, on 11 April  2019, the Constitutional Court ruled that the current abortion ban was unconstitutional. Multiple factors led to the overturning of the 2012 Constitutional Court decision, such as a changing political environment, shifts in the general public’s opinion, the progressive inclinations of judges, and a decrease in religious groups’ influence on abortion in Korea. Also, unlike the 2012 Constitutional Court decision, the main debates around abortion have changed from moral issues to public health issues in 2019 by participating health care providers who support reproductive justice movements. In this circumstance, the previous criminal codes on abortion were criticized because it could seriously harm reproductive health. Joint Action had a pivotal role in propelling some of these changes by organizing people, sharing information, and persuading politicians to work toward reproductive justice in South Korea.

If abortion is a crime, the state is the criminal

The main slogan in the recent reproductive justice campaign to abolish the criminal codes on abortion in South Korea was “If abortion is a crime, the state is the criminal.” The reproductive justice movement, collectively represented by the activities and actions of Joint Action, has debunked the notion that seeking abortion care makes women criminals; instead, it places responsibility on the government for upholding and advancing reproductive rights in Korea. Since 2016, the reproductive justice movement’s efforts to abolish South Korea’s criminal codes on abortion strategically focused on reproductive justice by advocating for fundamental social change that would promote actual sexual and reproductive health and rights for everyone regardless of class, gender identity, sexual orientation, and marital status.

This paper is an updated version of an article previously published on Health and Human Rights in 2019, entitled ‘The role of reproductive justice movements in challenging South Korea’s abortion ban’

References

References
1 The official Korean name for the Joint Action for Reproductive Justice is Moduleul wihan nagtaejoe pyeji haengdong (모두를 위한 낙태죄 폐지 행동).
2 E. Cho, “Self-perception of the non-West and historicism: The Family Planning Program in South Korea,” Society and History 98 (2013), pp.121–153.
3 D. J. Hernandez, Success or failure? Family planning programs in the Third World (Westport, CT: Greenwood Press, 1984).; E. Bae, “Women’s body and the state family planning programs in Korea: Examining ‘the modern’ in women’s lives through the social history of birth control,” Society and History 67 (2005), pp. 260–299.
4 H. Choi, “Problems with the abortion law and direction for improvement,” Ewha Journal of Gender and Law 8/3 (2016), pp. 225–258
5 Korean Statistical Information Service, Total fertility rates (1970–2016) (Daejeon: KOSIS, 2018). Available at http://kosis.kr/statHtml/statHtml.do?orgId=101&tblId=DT_1B81A21&vw_cd=MT_ZTITLE&list_id=A21_1&seqNo=&lang_mode=ko&language=kor&obj_var_id=&itm_id=&conn_path=E1.
6 Ministry of Health and Welfare, The master plan for the prevention of illegal abortion (Seoul: Ministry of Health and Welfare, 2005).
7 E. Kim, “Nag-tae jul-in-da-go jeo-chul-san geug-bog-doel-kka?” [Could we increase the birth rates by reducing the abortion rates?], Sisain (March 23, 2010). Available at https://www.sisain.co.kr/?mod=news&act=articleView&idxno=6708.
8 2010 Hun-Ba402, decided on August 23, 2012.
9 Sexual and Reproductive Rights Forum (Ed.), Battleground: Sexual and reproductive politics around the criminal codes on abortion law in South Korea (Seoul, South Korea: Humanitas, 2018), p. 115.
10 K.Kim, “mi-seong-nyeon im-sin-bu nag-tae-su-sul hu sa-mang … ui-sa jib-haeng-yu-ye hwag-jeong” [a teen pregnant woman died after an abortion … The doctor has been given a suspended prison sentence],” The Kyunghyang Shinmun (February 24, 2016). Available at http://news.khan.co.kr/kh_news/khan_art_view.html?artid=201602241601371&code=940301
11 J. Shin, “Stronger law against abortion sparks debate,” Korea Bizwire (October 12, 2016). Available at http://koreabizwire.com/stronger-law-against-abortion-sparks-debate/67900.
12 X. Symons, “South Korean doctors “protest” new abortion regulations,” BioEdge (September 2, 2018). Available at https://www.bioedge.org/bioethics/south-korean-doctors-protest-new-abortion-regulations/12789
13 J. Jin, “Yeo-seong-ui ja-gi-gyeol-jeong-gwon-gwa pyeong-deung-han salm-eul bo-jang-han gyeol-jeong