Changing the Focus of Abortion Discourse from Population Control to Human Rights
[An Abortion Decriminalization Movement for All] The History of the Crime of Abortion
※ Editor’s note: “An Abortion Decriminalization Movement for All” is a three-article series that will discuss Korea’s anti-abortion law and the reality of pregnancy terminations for Korean women and seek a new discourse on reproductive rights. Alm, the author, is a member of the Korea Sexual Violence Relief Center’s Sexual Culture Action Team.
What’s that you say? Abortion is a crime? Then I’m retroactively dumbfounded by so much that I’ve seen and heard.
What was up with the man who sat in a café with his future mother-in-law, folding wedding invitations, and openly bragged, “My friends are always borrowing money to get abortions for their girlfriends, but I’m very responsible so I didn’t tell your daughter to get rid of our baby”? Why does everyone know stories of men adamantly refusing to use condoms, promising marriage “if anything happens”, but when a pregnancy really does happen, saying, “Don’t try to tie me down” and pressuring the woman to get an abortion? What was the deal with all those scenes in TV dramas, movies, and novels in which a villain gives the pregnant heroine an envelope of cash and says, “Keep your mouth shut and take care of it”, or her own friends and family drag her to the clinic?
If abortion itself is illegal, what’s up with Article 20 of the Medical Code, which prohibits medical professionals from determining and revealing the sex of a fetus before it is 32 weeks old in order to prevent abortions of female fetuses?
The birth of the law against abortion
It’s hard to believe, but Republic of Korea criminal code has defined abortion as a crime since it was written in 1953. The “abortion law” absolutely prevents women from terminating pregnancies, and the word used for abortion in its name, naktae, comes from the Chinese characters meaning “fall” and “fetus”, giving hearers a solidly negative impression of pregnancy termination. When the Mother and Child Health Law was revised in 1973, however, it defined the limits within which “artificial termination-of-pregnancy procedures”, as exceptions to the abortion law, were to be allowed. When you compare these different terms for the same action, the ethical implications that the term naktae is meant to convey are clear.
But the term “artificial termination-of-pregnancy procedure” has the downside of giving people the impression that pregnancy terminations are only possible through surgical interventions like curettage and vacuum suction, and makes them feel scared and resistant. In this article, therefore, I will mostly use the term “pregnancy termination”, as it encompasses not just surgical procedures but also medications and folk medicine-based ways of inducing abortions.
Chapter 27 (articles 269 and 270) of our criminal code, the creation of which was influenced by Japan’s criminal code, is titled “The Crimes of Abortion”. Despite many revisions to the code as a whole, this chapter has only seen minor changes to its wording - and no alteration of it fundamental content - in the half century since it was written. The fundamental content is as follows.
Article 269, Section 1 (self-abortion) criminalizes a woman who terminates her own pregnancy. Article 269, Section 2 (abortion with consent) criminalizes a person who procures a pregnancy termination for a woman upon her request or with her consent. Article 270, Section 1 (professional abortion with consent) further criminalizes a person who procures a pregnancy termination for a woman upon her request or with her consent in the case that the person is a doctor, oriental medicine doctor, midwife, pharmacist or other seller of medications. Article 270, Section 2 (abortion without consent) criminalizes a person who procures a woman’s miscarriage without her consent. Article 269, Section 3 and Article 270, Section 3 add further punishment for injuring or killing the woman while committing abortion with or without consent, while Article 270, Section 4 stipulates the suspension of professional qualifications for those found guilty of violating any part of Article 270.
The movement to decriminalize abortion mostly takes issue with the bans on “self-abortion” and “professional abortion with consent”. “Abortion without consent”, in which another person forces an unwanted abortion on a woman, is a serious violation of the woman’s human rights and thus not a target for decriminalization. Specifically, the gist of the decriminalization movement’s demands are the abolition of laws against “self-abortion” and “professional abortion with consent” and the revision of “abortion without consent” so that neutral terminology for pregnancy termination is used in it but also so that stronger punishment is mandated for those who commit it.
Why bother with a law flouted for more than 50 years?
The Korean criminal code’s “crime of abortion” has been little more than a scrap of paper for a long time. From the 1960s until the 1990s, the state followed an aggressive birth control policy for the sake of economic development. Under this policy, pregnancy terminations were not just allowed but tacitly encouraged. In order to open up the possibility of population control, the Mother and Child Health Law, which permits artificial termination-of-pregnancy procedures under certain [mostly health-related] circumstances as exceptions to the abortion law, was created in 1973. After this, efforts were made to expand acceptable reasons for legal artificial termination-of-pregnancy procedures to things like family planning and financial circumstances, but fierce opposition from religious groups caused these proposals to be shelved.
In 1987, an article was added to the Medical Code that prohibited doctors from determining and notifying anyone of the sex of a fetus. This was intended to address the serious social problem of an unequal birth ratio, as the combination of childbirth-limiting state ideology and a cultural preference for sons had led to widespread selective abortions of female fetuses. Let’s look at another phrase from a state-made poster: “Teacher! If I’m good, will you make a girl my desk partner?” At that time, what was seen as a social problem was not abortion itself, but the fact that the male population was growing much larger than the female population.
However, as the 1990s began, the state became aware of the dawning problem of a dangerously low birthrate and hurriedly changed its policies to begin encouraging childbirth. The pessimistic view that the declining birthrate will inevitably lead to a lack of labor force in the future still circulates today like a ghost story. In line with this trend, the Anti-Abortion Movement Alliance was formed in 1994. In 2010, the Korean Pro-life Doctors Association was formed and an aggressive anti-abortion campaign began.
The Korean Pro-life Doctors Association started by reporting clinics that had performed illegal pregnancy terminations and, calling for real punishment for “committing the crime of abortion”, went on to report individual doctors, midwives, and women who had terminated pregnancies. Because of this, it became difficult for women to safely terminate pregnancies. The cost of the procedure skyrocketed. The sleeping lion of the anti-abortion law was awoken, and women were in danger from it.
In August 2012, the Constitutional Court considered a challenge to “professional abortion with consent”, but as the judges were split into two equal camps – four votes for and for votes against – the existing law was decided to be constitutional. The written decision’s mentions of the false conflicts of 'the fetus’s right to life versus the woman’s right to choose' and ‘public interests versus private interests’ fit well with the nation’s interest in having control over the size of the population.
In September 2016, the Ministry of Health and Welfare proposed revisions to the Mother and Child Act to strengthen the punishment for doctors who perform pregnancy terminations. In response, the Korean Association of Obstetricians and Gynecologists announced that it would stop performing abortions entirely if the revisions were made. Women were furious at both the government that was violating their health and reproductive rights and trying to restrict pregnancy terminations and the medical professionals who were using as hostages the bodies of women who need pregnancy terminations. They came from every part of the country to hold a “black protest” for the decriminalization of abortion.
A full-scale movement for decriminalization ignites
A women’s group for the legalization of pregnancy terminations, BWAVE, was formed in October 2016 and has organized constant protests since then. In September 2017, a coalition of women’s groups called “Collective Action for the Decriminalization of Abortion for All” was established. It has held performances and press conferences in which it called for decriminalization and women who had chosen to terminate pregnancies in various situations shared their experiences. At around the same time, a citizens’ petition demanding the decriminalization of abortion and the legalization and sale of abortion-inducing medication (specifically Mifegyne) was created on the Blue House website, and around 230,000 people signed it in the first month.
Through Cho Kuk, the senior presidential secretary for civil affairs, the Blue House responded to the petition in a video message. It was encouraging in that Mr. Cho pointed out the responsibilities that the state and men have regarding pregnancy and childbirth – a point which has been left out of the debate over abortion until now - and recognized the harm that the criminalization of pregnancy terminations does to women’s reproductive and life rights. But he does not take an official stance on the decriminalization of abortion or reveal plans to tackle it, so the video really ends up being a mere commentary on the current state of affairs. In December, when women held a black protest in front of the Blue House and yelled, “So decriminalize abortion, then!”, it was because they felt frustrated by the government’s inadequate response to their petition.
As women’s cries for decriminalization grow louder, certain segments of the religious population have begun to push back strongly through actions such as the “Movement to Gather One Million Signatures Against the Decriminalization of Abortion”. At the same time, the Constitutional Court said that it received a constitutional appeal in February and is currently reconsidering the constitutionality of the laws against “self-abortion” and “professional abortion with consent”.
And yet at this very moment in time, pregnancy terminations are being carried out openly in South Korea. Even when you look at other countries’ cases, you can see that criminalizing pregnancy terminations does not decrease the rate at which they take place. All it does is make it difficult for women with unwanted pregnancies to access information about how to safely terminate them. Because of this, countless women are forced to pay ridiculous prices for dangerous and illegal procedures. And they can’t imagine the fact that in countries where pregnancy terminations are legal, women have had access to simple medication-induced terminations for decades.
In this article, I considered the historical background and current situation of the constitutional law against abortion in the Republic of Korea, and I summarized the development of today’s decriminalization movement. In the next article, I will use a Q&A format to explore the position from which the Collective Action for the Decriminalization of Abortion for All argues that decriminalization would lead to a better society.
Translated by Marilyn Hook
*Original article: http://ildaro.com/8123
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