Abortion Case

[24-2(A) KCCR 471, 2010Hun‐Ba402, August 23, 2012]

In this case, in a vote of four (constitutional) to four (unconstitutionalas applied), the Constitutional Court held that the Article 269 Section 1 of the Criminal Code, which punishes a pregnant woman for procurement of her own miscarriage through the use of drugs or other means, and the Article 270 Section 1 of the Criminal Code, which punishes a midwife procuring the miscarriage of a female upon her request or with her consent only by imprisonment, are not against the Constitution.

Background of the Case

Petitioner, a midwife who operates a maternity clinic, was indicted based on the facts that she was commissioned to abort 6 week old fetus by a pregnant woman and thereafter, by inserting a vacuum intothe woman's womb, a sort of surgical instrument for abortion operation,and artificially eliminating that fetus out of the mother's womb, she made such pregnant woman miscarriage that fetus on January 28, 2010. While her case was pending, the petitioner filed a motion with the court to file a request for a constitutional review of Article 270 Section 1 of the Criminal Law, under which the petitioner was accused of or might be punished, to the Constitutional Court but that court denied such motion. Against that court' denial, the petitioner filed this constitutional complaint with the Constitutional Court on October 17, 2010, asserting that Article 270 Section 1 of the Criminal Law violates the Constitution.

Provisions at Issue

The question presented to us is whether the part of 'midwife' Article 270 Section 1 (hereinafter, the 'Instant Provision') of the Criminal Law

(revised by Act No. 5057 on December 29, 1995) violates the Constitution or not and the contents relevant to such part are as following:

Criminal Act (Revised by Act No. 5057, December 29, 1995)

Article 270 (Abortion by Doctor, Abortion without Consent)

(1)A doctor, herb doctor, midwife, pharmacist, or druggist who procures the miscarriage of a female upon her request or with her consent, shall be punished by imprisonment for not more than two years

Article 269 (Abortion)

(1)A woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won.

Summary of the Decision

1. Court Opinion

A. Whether the self‐abortion crime violates the Constitution or not

Human life, the source of human existence, is too precious to exchange for other things and, thus, the right to life is the most fundamental right among the basic human rights. While a fetus has to be much reliant on the mother to maintain life, the fetus in itself is a living thing separate from the mother and, the fetus is very likely to become a human‐being, and should enjoy the right to life as well.

The reason why our Constitution protects even the fetus is not because it is able to survive on its own or it is a creature having mental capability such as cognitive ability or self‐consciousness, but because it is a living existence to be able to become a human‐being.We, thus, found that the decision on whether a fetus can independently

live or not cannot be the criteria for allowing an abortion. Meanwhile, if we do not punish abortion nor imposes sanctions other than criminal punishment, the abortion will prevail much more than the present and, thus, the legislative purpose of self‐abortion provision would not be achieved. Sex education, common use of birth‐control method or support for pregnant women may be a means to prevent unwanted pregnancy but they are not enough to become an effective measure to be taken to prevent unlawful abortions. Moreover, by allowing an abortion prior to 24 weeks of pregnancy in an exceptional circumstance including the instance where the fetus has mental disorder due to eugenic or genetic illness, the fetus' right to life maybe restricted (Article 14 of the Mother and Child Health Law and Article15 of its enforcement ordinance). However, we have a concern that, if we go further and extend the scope of grounds for permissible abortion into social and economic reasons, self‐abortion crime provision might end up a mere scrap of paper and the abortions may be so openly performed that a trend to make light of human life will prevail throughout our society. Therefore, for the reasons above, we hardly find that it is an excessive restriction on the pregnant woman's right to make a self‐determination that the self‐abortion crime provision does not permit an abortion based on social grounds or financial hardship, which makes such provision not violating the Constitution.

B. Whether the Instant Provision violates the Constitution or not

The Instant Provision sets forth a midwife shall be punished only by imprisonment when the midwife helps a pregnant woman to have a miscarriage at the request or consent of the woman. However, we cannot find that the Instant Provision prescribes an excessive punishment: the upper limit is not so high because the statutory sentence should not exceed 2 year imprisonment; and, as for not so serious abortion crime, the court may make a sentence suspension or suspension of the sentence even it either does not reduce the sentence

or has to make a statutory sentence reduction. We, thus, cannot find that the Instant Provision does not comply with the rule of balance between responsibility and punishment.

Having an abortion is at high risk for depriving a fetus of a life regardless of the ways of abortion and most abortions are performed by healthcare professionals who have knowledge about abortion. They are highly likely to be criticized for performing abortions of depriving life because they are engaged in the business of protecting the life of a fetus. Moreover, imposing a lenient fine on midwives has a little deterrence effect since, they are likely to misuse their knowledge about the function of abortion operation and the medicines used for abortion while seeking profits. We cannot find that, considering things described above, the Instant Provision where, the legislature did not set forth any monetary penalty like the one for consensual abortion crime (Article 269 Section 2 of the Criminal Act) is against the principle of equality violating the balance in criminal punishment.

2. Dissenting Opinion of Four Justices

A.Whether the self‐abortion provision violates the Constitution or not

State's duty to protect a fetus shall include helping pregnant women to deal with hardships during and after their pregnancy and the government's legislation for life protection with respect to its scope or means may be different depending on the developmental stages of a human fetus.

Given that medical community generally considers that a fetus in the early stage of pregnancy (between one and twelve weeks of pregnancy) does not have neurophysiological structure and functions necessary to conscious experience such as self‐recognition and mental capability, that fetus in the early stage of pregnancy cannot feel pain,

while the rate of complications developed by an abortion in the early stage of pregnancy or the fatality rate of pregnant women caused by such abortion are strikingly low. Thus, in our view, there is much room for us to respect the right of self‐determination of pregnant women in the early stage of pregnancy. In light of the realities where a lot of unlawful abortions are performed to such an extent as to cause a danger on the health and lives of pregnant women, it is necessary to respect the right of self‐determination of pregnant women in the early stage of pregnancy at the least and thus the provision of self‐abortion crime does not comply with the rule of the least restrictive means. Meanwhile, the provisions regarding abortion crime prove to be a dead letter currently and they do not make a large contribution to eradicating abortion. Thus, in our view, it is hard to consider that the public interests in protecting fetus' life can be achieved through the provision of self‐abortion crime, while the prohibition or punishment of abortion against pregnant women even in the early stage of pregnancy is an absolute disregard for the pregnant women's right to self‐determination on whether their pregnancy is maintained or not but such right as a private right cannot be treated lightly, which makes the provision of self‐abortion crime not strike the balance between the legal rights concerned.

Therefore, in our view, the provision of self‐abortion crime infringes on the pregnant women's rights to self‐determination because it completely and uniformly forbids all abortions even including the one performed in the early stage of pregnancy, which makes clear that the provision violates the Constitution.

B. Whether the Instant Provision violates the Constitution or not

Likewise we have described above that the provision of self‐abortion crime is unconstitutional in that it uniformly punishes all the pregnant women having abortion including ones in an early stage of pregnancy,

the Instant Provision making a criminal punishment on midwives performing an abortion operation on the request or consent of the pregnant woman in the early stage of pregnancy is also an violation of the Constitution. Therefore, in our view, the part of 'abortion' of Article 269 Section 1 and Article 270 Section 1 shall be declared as unconstitutional so long as the 'abortion' is interpreted as include 'the abortion within twelve weeks of pregnancy.'

3. Dissenting Opinion of One Justice (Justice Lee Dong‐Heub)

While abortion at the early stage of pregnancy shall be permitted with respect to the right to self‐determination of a pregnant woman, legislative measures to make a pregnant woman take an abortion after careful consideration and, at the same time, preserve safe abortion operation shall be taken.