A Comparative Study on the Constitutionalization of Abortion in Korea, On The Busy Intersection of Morality and Law

This study presents a comparative overview of certain parallel aspects in the legal history of the abortion debate as it transpired historically in the key judicial opinions in the United States and Germany, and recently in the Korean Republic. The object is to elucidate the extreme difficulty that the learned Justices of the Courts in the United States and Germany faced in attempting to objectively measure the moral values involved in the determination of maternal and fetal rights, and their inability to provide rational explanations for the initial prioritization or ultimate balancing of the rights. As a result, the Courts failed to direct and stabilize abortion regulation because their frameworks were neither proven to be equitable nor legally workable. The primary method of this study is to highlight the questionable nature of the legal frameworks of the original abortion opinions of the U.S. Supreme Court and the German Constitutional Court to demonstrate that they were guided more by the personal moral convictions of the Justices than by the dictates of the law. The goal is to offer a comparative context that begins to explore the question, whether the Korean Constitutional Court has indeed found a way to resolve the abortion debate once and for all, or alternatively, whether all protagonists in Korea ought to shift course to help avoid weakening the authority of the rule of law and its legitimacy in the public eye, by delaying any further attempt in the resolution of this controversial issue until a national debate on the dialectic results in a consensus in the public, scholarly, and ultimately legislative discourse that properly values and balances the mother’s right of self-determination with the natural right of the fetus to life.