낙태죄 헌법불합치 결정에 대한 분석 ― 헌법재판소 2019. 4. 11 자 2017헌바127 결정에 대한 평석 ―

Pregnancy is a special process that takes place within a woman's body. Women’s autonomy and social-economic difficulties in abortion, however, have not been taken fully into consideration because the “fetal life” is a public interest until recently in Korea. In April 2019, The Constitutional Court found that anti-abortion law violated the Constitution(decision incompatible with the constitution) and demanded the amendment of law. Unlike the past decisions of the Constitutional Court and the Supreme Court, the decision has been made on the right to self-determination of women in abortion conflicts. Regarding the life of the fetus, while respecting the life of the fetus, but the reality of dependency of life to the pregnant women and the degree of protection can vary depending on the stage of formation. In other words, it is a big change in that it actively reflects the reality of the abortion as it considers conflict situations caused by the social and economic reasons of pregnant women. However, as the reasons for the decision reveal, the right to self-determination has been acknowledged, so that we will not discuss the right to health and equality of pregnant women. In other words, even though a pregnant woman promotes autonomous self-determination with whole personality, the merits of allowing abortion may not be relatively significant unless the various aspects of rights linked to the situation are socially and economically considered. However, the 2019 Constitutional Court's decision on abortion can be seen as a ground-breaking decision that will guarantee overall character, autonomy and health rights of pregnant women. It should be noted, however, that this decision is a product of an attempt to accept the fetal right to life step by step and normatively interpret it.