In August, the Moon administration announced it would publicly respond to any petition posted to the Blue House website that received more than 200,000 signatures. On September 30, a petition emerged calling for the decriminalization of abortion and legalization of abortion pills, based on a woman’s right to her own body. By late October, the petition surpassed the threshold required for public comment, and (as of this writing) has received a total of 235,372 signatures. In a video posted November 26, Blue House Secretary for Civil Affairs Cho Kuk offered the government’s response.
Cho said the government would conduct a fact-finding study next year to accurately determine the status of abortion in South Korea, gather public opinion data on the issue, and examine the reasons behind the criminal ban on the practice. The last such study, conducted by the Ministry of Health and Welfare, occurred in 2010. Although previously carried out at five-year intervals, the funds apparently were unavailable in 2015 under the administration of Park Geun-hye.
One of the main reasons behind the government’s effort is the well-known and glaring disparity between the official letter of the law and the actual practice of abortion in South Korea, as well as the intense public debate over the need to legalize it.
Based on an anti-abortion law introduced in 1953, abortion is defined as a crime by Article 269, Clause 1, of South Korea’s criminal code. Years later, Article 14 of The Mother and Child Act of 1986 provided certain exceptions, which permit abortion only in the case of rape, incest, hereditary disorder, or if there exists a serious risk to the mother’s health. However, even in those instances, the practice is still prohibited after the first 24 weeks of pregnancy. In addition, the law also requires that women obtain spousal or parental consent, a requirement that not only restricts personal autonomy but makes it more difficult for women to obtain a lawful abortion. According to the law, a woman who seeks an abortion illegally, by taking medication or by some other means, faces up to a year in prison or a fine of 2 million won ($1,837). The health care providers who assist them are also subject to potential jail time or fines.
Nevertheless, in practice, large numbers of South Korean women continue to get abortions and the vast majority illegally so. The government’s 2010 study estimated that more than 169,000 abortions occurred annually, but only 18,000 (or 6 percent) were legal. Moreover, on average less than 10 people were prosecuted and fewer still faced punishment for the violation. Other studies put the number of abortions significantly higher. Recently, one health journal estimated 500,000 abortions are performed each year, and the Korean College of Obstetricians and Gynecologists noted about 3,000 occur daily, which would amount to nearly 1 million a year.
Whatever the exact numbers (and the apparent lack of legal enforcement notwithstanding), criminalization of abortion is problematic for several important reasons. As Secretary Cho highlighted, the law pushes the abortion industry underground, not only making the procedure more expensive but also far more dangerous. According to the United Nations, “the average unsafe abortion rate was more than four times greater in countries with restrictive abortion practices” than in countries with liberal ones. In this vein, Cho noted South Korea’s law runs counter to the vast majority of OECD member states, 80 percent of which allow abortion. Put simply, current South Korean law makes an already emotionally and psychologically taxing procedure even more so by adding additional financial and health costs, not to mention the social stigma of engaging in a criminal act.
Furthermore, the current law does not take into account the obvious socioeconomic burdens of having a child, despite the fact research shows over half of South Korean women who seek abortions do so for just such reasons. A comprehensive survey conducted by Korea University recorded that 99.4 percent of unmarried women and 23.7 percent of married women answered that socioeconomic reasons were crucial in their decision to have an abortion. Beyond the financial costs of raising a child (potentially exacerbated by unemployment or illness) is the noticeable social discrimination and stigmatization in Korean society of out-of-wedlock or teen pregnancy. In short, the law puts full responsibility on women, absolves their male counterparts, and, in so doing, ignores or compounds the various obstacles South Korean women already face.
In his 10-minute video, Cho demonstrated an awareness of these factors, yet stressed the need to approach the issue deliberately. He said zero-sum thinking must be avoided, and the debate should not be between the rights of the fetus versus the rights of women. “Both are precious values that society has to promote,” he said. Nonetheless, religious and pro-life groups have already begun to defend the law, and the Korean Catholic Church announced it would start its own 1 million-signature campaign to create a petition directly opposed to the original.
Meanwhile, women’s rights groups have carried out several vocal public protests. On December 2, the Joint Campaign to Legalize Abortion, composed of 11 civic groups, including Womenlink and the Korea Women’s Hot Line, organized the Black Protest to Legalize Abortion. The various participants accused the National Assembly and government of procrastination, and stated the current abortion law restricts women’s right to choose and pursue happiness. Yet they also framed the issue as part of a larger set of problems, from a sexual education curriculum that blames victims for date rape and calls for chastity and self-discipline on the part of women (who are taught to tip-toe around the natural and impetuous sexual desires of men) to a well-documented pattern of violence against women in South Korea. Indeed, according to the World Economic Forum, South Korea ranks 116th out of 144 countries in terms of gender equality.
As things currently stand, the September 30 petition and the Moon administration’s response are only one part of a larger process. Cho correctly indicated that ultimately changing the law would require legislative action by the National Assembly or a decision by the Constitutional Court to overturn the current law. In 2012, by a split 4-4 decision, the top court ruled in favor of the present law, arguing the fetus’s right to life is greater than a woman’s right to self-determination. For a law to be determined unconstitutional it requires a majority of six judges on the normally nine-member court.
That said, a doctor facing prosecution for performing an abortion filed a complaint to the court in February. The case is expected to move forward in 2018. It remains to be seen how the court will rule. As indicated elsewhere, the mood today is different from five years ago, and the court consists of all new justices, several of whom have shown a willingness to reconsider the law. Finally, the Moon administration appears to see its own efforts as a means of fostering an environment conducive to a more realistic legal regime, one that is consonant with actual practice and more inclusive of the rights and needs of women.