Does Canada Provide a Realistic Model for Korea to Follow in Regulating Abortion?

Abstract

In 2019, the Constitutional Court of Korea ordered the legislature to revise the provisions of the Criminal Act that prohibited abortion before the end of 2020, at which point they would become “null and void.” However, as of this writing the National Assembly has neither revised those provisions nor enacted new abortion legislation. As a result of the Court’s actions and the Assembly’s omissions, abortion in Korea is now in legal limbo: it has been fully decriminalized but not clearly legalized. Yet there are a number of practical questions concerning the regulation of abortion that need to be answered and which are difficult to answer in the absence of a clear legal framework for abortion. How, in this legal context, will abortion be regulated in Korea? In this article, I address this question by looking at the Canadian approach to regulating abortion and considering whether Korea might follow a similar path. The question is relevant since Canada has been without federal abortion laws ever since abortion was fully decriminalized 34 years ago. Instead of approaching abortion as a criminal or legislative matter, Canada has adopted a medical model, regulating abortion as a standard part of healthcare. After reviewing the main judicial decisions that have shaped the Canadian approach to regulating abortion and comparing them to the Constitutional Court of Korea’s recent rulings on Korea’s abortion legislation, I conclude that the Canadian approach to regulating abortion is an unrealistic model for Korea.