South Korea is currently in the throes of legal limbo concerning abortion laws that have remained virtually untouched since 1953. In April 2019, South Korea’s Constitutional Court determined that the long-standing ban on abortion was unconstitutional and gave the country until December 2020 to reform its abortion laws. Well, December has come and gone and while technically decriminalised, the country remains in legislative purgatory. Telemedical abortion service and advocacy platform, Women on Web, a service which prescribes the medicines that make up the abortion pill, Mifepristone and Misoprostol, to areas where abortion is restricted, first experienced a censorship of its main website in March 2019 and then again to a sister website in June 2020, right in the middle of a global pandemic.
South Korea is currently in the throes of legal limbo concerning abortion laws that have remained virtually untouched since 1953.
The reason cited for the censorships issued by the Korean Communications Standard Commission (KCSC) was that the website was in violation of the country’s Pharmaceutical Affairs Act, given both Mifepristone and Misoprostol are outlawed drugs. Mifepristone and Misoprostol have both been deemed safe and essential by the World Health Organization (WHO) yet despite this, South Korea has upheld its ban against the drugs and maintains strict policies surrounding the prescribing and dispensing of medicines. South Korea’s reluctance to move forward with abortion legislation coupled with its unwillingness to review the gaps left by its pharmaceutical laws marks yet another example of governments justifying the denial of abortion access due to the violation of another law. This is an example of imposed false argumentation in order to maintain control over an aspect of the body politic, namely in this case, women’s health and bodily autonomy. Maintaining this control means further defence of the slippery slope of censorship exhibited by South Korea that seeks to keep its people in the dark about important health and contraceptive issues.
Abortion in South Korea: 1953 – Present
For over 66 years, the criminalisation of abortion, as represented in Article 269 and 270 of South Korea’s Criminal Code, had remained in a fixed position with relatively heavy penalties attached to whomever sought one or administered one. Women or pregnant persons who obtained an abortion risked up to a year of imprisonment or a fine equivalent of up to $2000. The consequences for doctors or medical practitioners who performed an abortion were comparably worse, with a consensual abortion resulting in no complications potentially receiving a sentence of up to 2 years imprisonment. These penalties were accompanied by the barring of any doctor who performed an abortion from practising medicine for up to 7 years.
By placing such a stronghold on licensed medical facilities and staff, South Korean anti-abortion laws created an environment deterring those seeking abortion from reputable establishments and making the options for women and pregnant people even more dangerous. This, likewise, prevented medical professionals from performing them, as medical facilities were kept under the scrutiny of audits and/or government surveillance. The only exceptions made for seeking an abortion are outlined in Article 14 of the Mother and Child Health Act, a piece of legislation that was introduced in 1973 that trumps the Criminal Code in five very limited circumstances: in the case of genetic disease or impairment; the presence of an infectious disease; rape or what the South Korean legal system has deemed “quasi-rape” (defined as through coercion or intimidation, a term which is problematic in its own right); incest; or, if the pregnancy poses a serious threat to the life of the carrier. There is no mention of socio-economic reasons for abortion nor a consideration for minors. These five circumstances are in themselves limited, several with language that denotes additional stipulations and can only be applied before the period in which the fetus could plausibly sustain life outside the womb. In other words, as interpreted from the legislation, the Mother and Child Act can be invoked in the first 24 weeks before it loses jurisdiction all together.
South Korean anti-abortion laws created an environment deterring those seeking abortion from reputable establishments and making the options for women and pregnant people even more dangerous.
After the end of the Korean War, in an effort to replenish population numbers, the Korean government first enacted the strict anti-abortion laws then eased up on enforcing them from the 1960’s through to the 1980’s, as the national fertility rate soared. Throughout this time, contraception and family planning were encouraged and despite Article 296 and 270 remaining unchanged, the Korean government turned a blind eye to the practice of abortion. The government began re-enforcing the abortion ban in the mid-2000’s, which sparked two evaluations by the Korean Constitutional Court whether the ban remained constitutional: one in 2012 and one again in 2019. In taking a step back to evaluate the ebbs and flows of the ban on abortion, the subsequent tightening and easing of its enforcement, and the periodic judicial reminder of the power behind it, it would appear the laws were imposed only at times that suited the country; meaning the ban was exercised based on the needs of the State, not the people. This selective mode of enforcement reinforces the arbitrary nature of laws that are meant to protect power and exert control, not the rights and freedoms of the population.
Inconsistency and Inequality: Making a Case for False Argumentation
South Korea thus created optimum conditions for the proliferation of alternative laws to circumvent the freedoms international human rights laws have sought to preserve. This is the source and problem with censoring services such as telemedical abortion access under the guise of upholding other legal pillars. The Korean Communications Standards Commission, the public agency responsible for issuing the censorship, wielded the violation of pharmaceutical laws as a defence for censoring a service that keeps its own people from harm. For this reason, the citing of pharmaceutical laws as reason to bar or block telemedical abortion websites (as is often the case) should not be admissible as it places the violation of pharmaceutical accreditation at a greater value than the health needs of constituents. Weaponising other laws also justifies censoring vital information, not solid ground for democratic processes.
The Korean Communications Standards Commission, the public agency responsible for issuing the censorship, wielded the violation of pharmaceutical laws as a defence for censoring a service that keeps its own people from harm.
South Korea has already demonstrated in the past a willingness to circumvent freedom of expression and access to information. Numerous reports have been made on South Korea’s questionable censorship and surveillance practices, including assessments by Open Net, Reporters Without Borders, and OONI Open Observatory, all outlining a State-led penchant for censoring and blocking secure websites that run counter to the State’s ethos. While initially seeming to come down on these practices, Moon Jae-in’s leadership has worsened nefarious behaviour on the part of the government and indicates an increased willingness to manipulate and tamper with the rights and freedoms of constituents. When this is the case, these acts support and invigorate possible environments for false argumentation. South Korea has operated under the legal guise of maintaining a commitment to freedom of information while quietly manipulating access to better serve the State, thereby inhibiting the collective mobility and autonomy of the general population.
After ample research, WHO has maintained the safety of mifepristone, misoprostol, and the self-administering of medical abortions. Since those in many countries where abortion is legal still face logistical restrictions such as travel, licensed clinics, and/or financial assistance, not to mention the often-lengthy time it takes for widespread social acceptance to catch up to abortion’s legal status on paper, South Korea has an opportunity to fully address these needs as it develops its abortion reform. Research continually indicates further restrictions and/or blind spots related to abortion mark a significant risk to women’s health and well-being. International governing bodies such as the United Nations and organisations upholding the Universal Declaration of Human Rights such as Amnesty International, the Human Rights Watch, as well as Women on Web and Women on Waves, advocate year after year that abortion is an integral part of reproductive rights and health. When countries invoke peripheral laws such as pharmaceutical violations or conscientious objection clauses as justification for blocking, restricting, or limiting abortion access, they are invariably creating additional barriers, not upholding legal integrity.
When countries invoke peripheral laws such as pharmaceutical violations or conscientious objection clauses as justification for blocking, restricting, or limiting abortion access, they are invariably creating additional barriers, not upholding legal integrity.
In this day and age and after analysing the intersection of the moral obligation of medical access, political responsibility, and freedom of bodily autonomy, a State purporting to be a democracy cannot claim to be so without adequate access to abortion. South Korea– and any democratic country for that matter– is failing international obligations if it forces women to seek health services elsewhere, which is what it’s doing by not addressing abortion reform and censoring services that are addressing it. Freedom cannot be obtained without the adequate means to bodily autonomy and self-care for women and pregnant persons. And that includes access to abortion.
South Korea has already taken the step to reform its abortion laws. Now it needs to take action and turn that reform into access that addresses the clear needs of the people of Korea.
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