Apex Courts Of Australia And South Korea Deliver Landmark Rulings In Favour Of Abortion Rights [Read Judgments]

Apex Courts Of Australia And South Korea Deliver Landmark Rulings In Favour Of Abortion Rights [Read Judgments]

While Constitutional Court Of South Korea held that the anti abortion law is not in conformity with the Constitution, the High Court of Australia upheld laws which protect women from being hindered against their choice to abort.

Last two days witnessed two significant rulings in the matters of women's reproductive rights by Apex judicial bodies of two countries viz. South Korea and Australia.

The Constitutional Court of South Korea (majority), on Thursday, held that criminalizing self-abortion of pregnant women, and cases of abortion with the consent or consent of a woman is not in conformity with the Constitution. However, the Court has held that these provisions shall continue to apply until the legislature amends them before December 20, 2020. if the revised legislation is not made by that time, the above provisions shall cease to be effective from 1 January 2021, the court held.

It was only a day before, the High Court of Australia, upheld the laws made by the Parliaments of the States of Victoria and Tasmania, which not only decriminalized the termination of pregnancies by artificial means in certain circumstances, but also sought to provide that those seeking access to, or working in, premises where terminations are available are protected from hindrance.

South Korean Case

This ruling is on a petition filed by a gynecologist who was charged with penal provisions for terminating pregnancy with the consent of women [About 69 abortions in about two years]. There are three simple unconstitutional opinions that the provisions of the self-abortion crime and the doctor's abortion are violating the Constitution, and four constitutional incompatibility opinions that the constitution does not conform to the Constitution. Two judges held that it is not unconstitutional. The current law, the Maternal and Child Health Act, allows abortion only in the following cases:

      • If couple have an eugenic or genetic mental or physical condition prescribed by Presidential Decree
      • If couple have infectious diseases prescribed by Presidential Decree
      • When pregnant by rape or semi-rape
      • If pregnant between relatives or relatives who cannot be married under the law
      • If the continuation of pregnancy is seriously harming or harming maternal health for medical or health reasons
      At the same time criminal code of the country penalises self abortion and doctors' abortion for reasons not allowed by the above law.

      The court made these significant observations:

      • Pregnancy, childbirth, and child-raising are important issues that can have a fundamental and decisive impact on women's lives. Therefore, it is up to the individual to determine whether the pregnant woman will maintain or end the pregnancy.
      • The reason for justification under the maternal and child health law is not at all involved in abortion conflict situations due to a wide range of social and economic reasons. For example, if you are worried about having trouble with your social activities, such as academic or work life, if you do not have enough income or are unstable, if your child already has enough time to afford more children, If either party is unable to leave for parenting, does not intend to continue with the partner, does not have a marriage plan, opposes to the birth, abortion or explicitly denies responsibility for childcare, If you are pregnant with a partner who is married to another woman, if you notice that your marriage has actually broken down and you have conceived your child, if you are pregnant with a partner and you are separated from your partner, This may be the case when you have an unwanted pregnancy.
      • In order to eliminate the unconstitutionality of the above clauses, the legislator must decide how to determine the period of determination and the period of the determinable period in order to form the discipline for the criminal punishment of abortion, Including whether or not to require confirmation of social and economic reasons until a certain period of time during which decisions can be made in order to optimize the realization of the right to self-determination.


      Australian Case

      The Law in Victoria provides that a person must not engage in "prohibited behaviour" within a safe access zone, an area within a radius of 150 metres from premises at which abortions are provided. "Prohibited behaviour" is also defined to mean: "(a) in relation to a person accessing, attempting to access, or leaving premises at which abortions are provided, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person by any means; or (b) subject to subsection (2), communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety" (c) Interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; or (d) intentionally recording by any means, without reasonable excuse, another person accessing, attempting to access, or leaving premises at which abortions are provided, without that other person's consent".

      In Tasmania, the 'Prohibited behaviour' is defined as follows: "(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or (c) footpath interference in relation to terminations; (d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person's consent"

      Two men had challenged these provisions contending that they are invalid because it impermissibly burdens the freedom of communication about matters of government and politics which is implied in the Constitution.

      • The communication prohibition has a rational connection to the statutory purpose of protecting the privacy and dignity of women accessing abortion services.
      • A law calculated to maintain the dignity of members of the sovereign people by ensuring that they are not held captive by an uninvited political message accords with the political sovereignty which underpins the implied freedom.
      • Just as persons lawfully going about their commercial business are entitled to get on with it unimpeded by the unwelcome, disruptive antics of insistent protesters, women seeking an abortion and those involved in assisting or supporting them are entitled to do so safely, privately and with dignity, without haranguing or molestation.


      Read High Court of Australia Judgment



      Read South Korea Constitutional Court Judgment [Translated by Google Translation] [Majority decision only]