12. 13. 2022

Beyond Decriminalization,
Towards Reproductive Justice:
We Are Still Fighting in South Korea

Na Young

The day after the news broke that the US Supreme Court had overturned Roe v. Wade, my phone had no time to rest. Local media began to pour out questions for me, seeking my predictions about the US ruling’s impact on South Korea, where I live and organize for reproductive justice. The South Korean media, deeming this country to be still in a “legislative vacuum” after a decision of South Korea’s Constitutional Court in 2019 left key questions surrounding abortion unresolved, were thinking the legal status of abortion here would be influenced by the historic decision in the US.

In response to these requests for comment, I repeatedly stressed: “Your premise is wrong.” Because, one, abortion in South Korea is not in a “legislative vacuum”; and two, the US Supreme Court’s decision is not a global standard. 

On April 11, 2019, South Korea’s Constitutional Court ruled that the country’s criminal provisions on abortion were unconstitutional. It ordered that the government and lawmakers should resolve the problem – make an amendment to the constitution so it no longer violates women’s rights – before the end of 2020. If the government and lawmakers could not legislate any such amendment by that time, the criminal provisions would automatically be rendered void. Members of the National Assembly failed to come to a consensus about any constitutional amendments pertaining to abortion before the end of 2020, and the legal provisions that made termination of pregnancy a crime were officially invalidated on January 1, 2021. It’s not a “legislative vacuum.” It’s a clear legal standard: abortion has been decriminalized in South Korea.

But the problem is that neither the government nor health institutions have prepared a public system for administrating abortion. Government agencies, especially health authorities such as the Ministry of Health and Welfare and the Ministry of Food and Drug Safety, are avoiding their responsibilities, using this so-called legislative vacuum as an excuse. The current situation is not a legislative vacuum, but a vacuum of responsible policies and endeavours for building a system of access to abortion.

The reason Korean media, as well as politicians and public officials, still consider the legal status of abortion to be in doubt is a belief that legal criteria are needed to judge between “legal abortion” and ‘“criminal abortion.” They never imagined a society without legal criteria for terminating a pregnancy. The media, like many people in South Korean society, believe legal criteria are needed to strike a balance between the fetus’s right to life and women’s right to make decisions about their own bodies and health. And many Korean lawmakers and media figures consider Roe v. Wade to be the standard model of so-called legal abortion. That’s why Korean media predicted that the US Supreme Court’s decision would directly affect the legal status of abortion in South Korea, even though abortion is already decriminalized here. A narrow, superficial analysis, stuck in the past.

Actually, in a country like South Korea where abortion is already decriminalized, it’s not easy to re-criminalize it – the example of Canada demonstrates this fact. In such a context, a party that overturns abortion’s decriminalized status must take a big political risk. 

To be sure, Korean society needs to ask in-depth, challenging questions in relation to the recent anti-abortion Supreme Court judgment in the United States and the circumstances surrounding it: questions such as Can the law judge what timings and justifications for abortion are reasonable? and Is the state really qualified to stand in such a position? Our social movement organizing for reproductive justice in South Korea has been a struggle to prove the answer is No.

(“Until safe abortion is assured for everyone.” At the bottom of the placard, other demands: approve Mifegymiso, expand national health insurance to cover every case of abortion, legislate the Framework Act on the Guarantee of Sexual and Reproductive Rights.)

Lessons learned from failure

2016 was an important year for the feminist movement in South Korea: the year when we declared that our goal must be reproductive justice, not just the legalization of abortion. In 2016, when the Korean Ministry of Health and Welfare announced intensified punishment for those who perform abortions, our movement held a press conference, where we affirmed: if abortion is a crime, the criminal is the state. This became our slogan. 

The reason we brought a reproductive justice perspective and goal to our struggle is that, not long before then, we had experienced the failure of a narrower approach. The struggle for legal abortion in South Korea began with a case in 2010 where an anti-choice group sued doctors and hospitals for performing an abortion. Until then, many women actually didn’t know about the existence of criminal provisions for abortion in the country. Because of the South Korean government’s anti-natalist policy, the law had rarely been applied. Abortion was a very common experience for Korean women.

But as the anti-choice group sued and anti-abortion campaigns grew, doctors began to refuse abortion services for fear of punishment. The organization that started the anti-choice campaign and sued abortion-performing hospitals came from within the medical profession, calling itself “a gathering of doctors who are truly concerned about obstetrics and gynecology.” (It operates under the abbreviated name “Jin-o-b” in Korean, pronounced the same as the English abbreviation “GYN/OB.”) A month after that organization’s launch, those doctors launched several other groups: Pro-Life Doctors, Abortion Rescue Centre, and Abortion Report Centre. Their abortion-reporting website continued to post information about women’s abortions (often reported maliciously by women’s husbands, partners, or exes) and the hospitals where they were performed. At that same time, the Korean government announced it would strengthen the punishment for abortion, as a measure against the low birth rate, and the Korean cardinal encouraged Pro-Life Doctors in his Easter message. Many women were sued by their partners or husbands. Women went abroad for abortions, at dramatically increased cost. Other women sought out abortion pills on the black market.

It was in these circumstances that the Network for Women’s Right to Decide Pregnancy and Delivery was organized in 2010, only to dissolve in 2012 after the Constitutional Court of Korea ruled against the legal right to abortion. In that decision, the Court noted that “the fetus’s right to life is in the public interest while a woman’s right to choose abortion is in an individual’s interest.” It concluded that, accordingly, “women’s rights cannot be more important than the fetus’s rights.” But a 19-year-old woman died during an abortion procedure in November 2012. The woman had been in danger due to a mistake her doctor made, but the doctor hadn’t transferred her to the hospital. Had he transferred her in time, he could have saved her life – but he didn’t want to be prosecuted for performing an illegal abortion procedure. 

In cases like that one, we run into the logical limit of a “pro-life v. pro-choice” framework. What is life, and what is choice? What losses of life and losses of choice have been obscured – or created – by the criminalization of abortion?

(“Assure safe abortion,” “Expand comprehensive sex education and access to contraception,” “Abolish from the Maternal and Child Health Act provisions that express a eugenicist point of view…”)

If abortion is a crime, the criminal is the state

In 2015, on the suggestion of the disabled women’s advocacy organization Women With Disabilities Empathy, some South Korean feminists launched a project to review the history of the criminalization of abortion in the country. These same feminists – I’m one of them – would later become the co-founders of SHARE (a center for Sexual rigHts And Reproductive justicE).

The criminalization of abortion in South Korea started during the Japanese colonial era. The Japanese colonial government imposed criminal penalties on abortion, and in 1953, eight years after the liberation of South Korea from Japanese rule, members of the National Assembly of South Korea decided to uphold those laws. But though abortion remained a crime, in 1962 the South Korean government launched an anti-natalist family planning campaign alongside an economic development plan. Able to access a huge amount of international aid in exchange for achieving population control, the government set up family planning counselling centers nationwide, with at least one staff member in each region. And the state established clinics across the country that provided sterilization operations – and abortion services as well. The government also offered incentives, such as public housing and health insurance benefits, to families who had fewer than two children. At that time, the official mission of family planning staff was to supply contraception pills or devices and promote family planning. But in many cases, their work actually included abortion as well. And, what was worse, some staff forced women to get sterilization surgery. Those kinds of cases were state violence, the state prioritizing their population control targets over women’s body autonomy.

Korean society had long dealt with abortions by married women as inevitable if necessary, but for unmarried women and especially for minors, abortion was treated as a matter of their sexual depravity and irresponsibility. Pregnant disabled people, single mothers, poor mothers, and sick mothers were often subjected to forced abortions, or forced to give up their children for international adoption. These policies were very useful to the government, serving not only as population control but also as a means of achieving economic development. And the rationale that international aid donors and South Korean governments offered to justify population control for the sake of economic development was that they needed to defend against the invasion of communism and pave the way for capitalism.

As the group of us that would go on to co-found SHARE studied the history of abortion’s criminalization in South Korea, we noted that South Korean governments had, on the one hand, controlled women’s sexuality by using criminal legal provisions and, on the other hand, governed “unproductive” lives by restricting the reproduction of disabled people and other social minorities. The state was never actually concerned with protecting life or choice.

It was by analyzing that historical context, and by listening to the experience of disabled women, that we were able to understand abortion in its connections with reproductive justice more broadly. As a reproductive justice movement, we could fight to reveal that the South Korean government has never protected the rights of women or the lives of fetuses. We moved the axis of confrontation from fetuses vs. women to the government vs. people.

In 2017, we organized the Joint Action for Reproductive Justice not only with feminist organizations but also with the Korean Confederation of Trade Unions, Women With Disabilities Empathy, youth groups, LGBTAIQ groups, progressive doctors’ organizations, health care professionals, and progressive parties. Christian communities also joined our coalition.

These groups educated their members, urging them to think about the decriminalization of abortion as a starting point for understanding how reproductive rights are closely related to the rights that they are fighting for in their own organizations. People were encouraged to join rallies and sign petitions, and to speak of their own experiences related to abortion and other reproductive issues.

We actively linked sexual and reproductive rights, including the right to a safe abortion, with rights that must be guaranteed for all people in workplaces, social welfare facilities, schools, and other settings. And we persuaded those who believe abortion is just a women’s issue that it’s an issue for everyone. We visited trade unions, local social organizations, political parties, and many other groups. In coalition with them, we organized seminars, forums, lectures, book launches, concerts, performances, and rallies. 

By shifting the popular and leftist discourse about reproductive issues in the ways mentioned above, the movement had a stronger position in the legal fight against the state and could establish expanded solidarity with other organizations struggling for social justice. 

On April 11, 2019, the day when the Constitutional Court was set to rule on the matter, we held press conferences every hour from early in the morning till the time of the court’s ruling. Youth, Christians who support reproductive rights, academics and researchers, disabled people, and health workers hosted the press conferences and spoke out their demands in favor of abortion decriminalization. Arguing before the judges of the Constitutional Court, attorneys adopted the perspective of reproductive justice and stressed the responsibility of the state. So finally, in 2019, after years of struggle following the anti-abortion judgment of 2012, we were able to get a completely different decision from the court.

(A press conference from the start of the Joint Action for Reproductive Justice, 2017.
The red ribbon connects the experiences of each person present who had suffered the violence that regulates sexual and reproductive autonomy.)

Beyond decriminalization, we are still fighting

Our main slogan – If abortion is a crime, the criminal is the state – places responsibility on the government for upholding and advancing reproductive rights in South Korea. Since 2016, our reproductive justice movement has not only fought to abolish any restrictions on abortion, but has also struggled for fundamental social change that would promote SRHR (Sexual and Reproductive Health and Rights) for everyone, regardless of class, gender identity, sexual orientation, and marital status.

We are pressuring the government to provide comprehensive services, including healthcare, education, and other social supports – to build a public system that guarantees our basic rights. We are also demanding that the government formally approve the abortion-inducing drug mifepristone and include abortion care in our national health insurance coverage. We are pushing the government to treat abortion not as a crime but as a medical service. The health authority should fight the stigma that makes healthcare workers reluctant to help people who need abortion services. The government should urge companies to guarantee abortion leave, and should ban discrimination on grounds of abortion in companies and schools. It should also provide foreign language interpretation and translation services, sign language interpreters, personal support workers, and other social welfare services to benefit women with disabilities, teenagers, migrants, and refugees, when those people seek access to abortion and reproductive services in general.

We’re gathering petitions with these demands and urging the Ministry of Health and Welfare and the Ministry of Food and Drug Safety to respond. On September 28, the International Day of Safe and Legal Abortion, we organized to send a busload of people to visit the Ministry of Health and Welfare. At the same time, we have been conducting surveys and publishing our research. In some hospitals and clinics, doctors are providing incorrect information about the current legal situation around abortion, making women believe the criminal provisions are still in effect because a new law has not been legislated – which is absolutely untrue. They are taking advantage of women’s anxiety and fear of stigma to try to negotiate inflated hospital fees in cash. We’re gathering records of these kinds of cases. And we’re preparing a report that urges the Ministry of Health and Welfare to hurry to create a safe system for providing reproductive health services as part of the national health insurance program. We’ll keep pressuring the Ministry with calls and text messages. Meanwhile, we’re organizing trade unions, local associations, and social minorities’ groups to expand our coalition for reproductive justice. 

SHARE has packaged our demands as the Framework Act on the Guarantee of Sexual and Reproductive Rights and proposed this vision to members of the National Assembly. We are claiming that the time for debating the “legal criteria” for abortion is over. We don’t need just “legalization of abortion,” as we have learned legal fights alone do not bring about genuine change. Instead, we are demanding that the government genuinely assure our sexual and reproductive health rights in a context where abortion has been decriminalized.

Conservative parties and anti-choice groups are still trying to revive the criminal provisions against abortion. And the Korean Society of Obstetrics and Gynecology and the Korean Association of Obstetricians and Gynecologists – the two major professional bodies for those professions in Korea – are urging the government to allow health workers to refuse to perform abortions on the basis of conscientious objection. But we’ll keep fighting any attempts to restrict our rights, and keep moving forward to expand those rights. Our networks of people struggling together for reproductive justice are growing. We demand not only safe abortion, but also climate justice, and justice for migrants, disabled people, queer and trans people, teenagers, poor people, and sex workers. We believe that winning safe abortion is not only about changing the laws. It’s also about building movements strong enough to defend those wins. The answer is justice, for which we’re gonna keep pushing.