형법상 자기낙태죄에 대한 헌법재판소 결정(2017헌바127)에 관한 헌법적 검토

This paper deals with the 2017 Hun-Ba 127 Decision, which was sentenced by the Korean Constitutional Court on April 11, 2019 for self-induced abortion under Article 269 (1) of the Criminal Code, from a constitutional point of view. I believe, in reviewing violations of principle of proportionality for self-induced abortion, consideration should be given to whether women's right not to have unwanted pregnancy and whether institutional protecting measures for it there are. In this decision, this part was not taken into account. The constitutional nonconformity opinion and the constitutionality opinion not only recognize the fetus as an independent living being different from the mother, but also recognize that the fetus, which is a human being in creation, is the same human right holder as the born human. However, I believe, although the fetus is an independent organism that is distinct from the mother, the fetus can not be the human right holder, but the fetus is as a life that must be protected by the state, as the unconstitutionality opinion argues. I think, even if a woman have a right to terminate a pregnancy due to social or economic reasons for a certain period of total pregnancy time, to terminate a pregnancy is a violation of the life of the fetus, which should be protected by the state. In order to protect the life of the fetus, the state should establish a compulsory counseling system as a procedure to confirm the true intention of a pregnant woman and to let her take a prudent decision, before executing an abortion.