Roe vs. Wade Korea style

By Jason Lim

South Korea's Constitutional Court ruled that the current abortion law wasn't consistent with the Korean constitution and will have to be amended by the National Assembly by end of next calendar year. There seems to be a widespread support for this shift, especially since there really hasn't been enforcement against abortion for the last few decades.

In fact, when I lived in Korea in the late 1990's, I was surprised to hear that abortion was illegal since the social norms seemed to regard it as perfectly acceptable. I think it became an issue recently as the birthrate plummeted to the lowest among OECD countries, driving some to view the illegality of abortion as a forcing mechanism for women to have more babies. Not surprisingly, such arm twisting didn't find much resonance in today's Korean society, leading to this showdown that was won by the pro-choice groups.

What I find interesting in this decision was how the Constitutional Court judges framed the right of women to have an abortion. They pointed to Article 10 of the Republic of Korea Constitution that states: "All citizens shall be assured of human dignity and worth and have the right to pursue happiness. It is the duty of the state to confirm and guarantee the fundamental and inviolable human rights of individuals."

The judges derived a right of "self-determination" from this Article and justified their decision by claiming that the current abortion laws infringed upon this right unduly. "Self-determination" is not as accurate as a literal translation of what they wrote, which I'd rather translate as "right to make an autonomous decision." Whatever you call it, this is what the majority opinion stated (my translation):

"The right to make an autonomous decision is a method to actualize human dignity and a right by a human being to make basic decisions autonomously on the expressions of his or her human character and ways of living within his/her life boundaries." The opinion goes on to claim that the current abortion laws restrict abortion through the entirety of the pregnancy period and levies penalties in cases of violations, which restricts the "right to make an autonomous decision" of a pregnant woman.

In other words, the Korean Constitutional Court ruled that an individual has a right to make his or her own life choices within the bounds of what constitutes his or her everyday "living."

Contrast this to the "right to privacy" that the U.S. Supreme Court justices based their decision in favor of abortion rights in Roe vs. Wade in 1973. The majority determined that a woman's right to decide whether to have an abortion involved the question of whether the Constitution protected a right to privacy. The justices answered this question by asserting that the 14th Amendment, which prohibits states from "depriv[ing] any person of … liberty … without due process of law," protected a fundamental right to privacy. Further, after considerable discussion of the law's historical lack of recognition of rights of a fetus, the justices concluded "the word 'person,' as used in the 14th Amendment, does not include the unborn." The right of a woman to choose to have an abortion fell within this fundamental right to privacy, and was protected by the Constitution.

The dissenting opinion ― and every opposing viewpoint ever since ― criticizes that the majority overreached in deriving a right to privacy from the 14th Amendment. Justice Rehnquist wrote, "To reach its result, the Court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the Amendment. …. The only conclusion possible from this history is that the drafters did not intend to have the 14th Amendment withdraw from the States the power to legislate with respect to this matter."

While the practical effect is the same, the fundamental right that each country justified its pro-choice decision is fascinating to note. In Korea's case, the judges basically argue that a woman should be able to have an abortion as a part of her human right to pursue happiness within the boundaries of her everyday life. This judgment implicitly acknowledges that having a baby is a socioeconomic decision that will impact the wellbeing of the mother.

In Roe vs. Wade, the right to pursue happiness doesn't come in consideration. It's more about a woman's right to privacy in making a personal decision. And the state's obligation to protect the life of a "person" doesn't come into play until the second trimester when the viability of the fetus ― the potential of the fetus to become a viable baby outside the womb ― increases.

It may sound like a "potato" vs. "potatoe" argument, but it's an interesting insight into how two courts, separated by geography and time, chose to justify their respective opinions in deciding in favor of abortion rights.

Jason Lim (jasonlim@msn.com) is a Washington, D.C.-based expert on innovation, leadership and organizational culture.