Penumbras Finally Emanating Over Korea — A Comparative Analysis of a Recent Korean Constitutional Case on Criminality of Abortion —

Abstract

On April 11, 2019, the Constitutional Court of Korea handed down a historic decision finding the decades-old criminal provisions criminalizing abortion unconstitutional. This decision shows a dramatic shift in the positions of the Court on the abortion issue, because the same Court found the same criminal prohibition constitutional only seven years ago. Out of nine Justices of the Court, a total of seven Justices found the prohibition either in non-conformity or in simple violation of the Korean Constitution. Four Justices, while finding that prohibition unconstitutional, have decided to give the Korean Legislature until December 31, 2020. In contrast, three Justices have found the prohibition outright unconstitutional and urged immediate invalidation of this prohibition. The end result is that the Legislature has been given one year and ten months of time to legalize or decriminalize abortion. It definitely is a remarkable decision that will reshape the issues on women’s reproductive rights and the governmental interests in protecting mothers’ heath, in regulating medical practice, and in protecting potential human lives. It should be also noted that, unlike the American approach, represented by the landmark case of Roe v. Wade, these Justices found direct grounds for their positions right in the Constitution itself. Although the approaches by these two countries are different in their constitutional theories and their mechanisms in decriminalization of the pre-viability abortions, it now appears that there two countries now share an important norm on this thorny issue. In this paper, following the introduction, we will take a look at the rationale behind this landmark decision from the Korean Constitutional Court. While we are at it, we will consider the unique situation surrounding this issue in Korea. We will then look at its counter-part decisions in the United States of America. After that, we will compare these lines of cases in terms of reasoning, cultural, historical and constitutional differences. In the conclusion section, we will summarize the similarities and differences between the approaches adopted by these two countries. As the Korean legislature is directed to follow up with legislative modifications in conformity with this decisions, we will try to make some proposals to the Korean National Assembly as well.