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상권 : 낙태와 헌법 -헌재 2010헌바402결정과 관련하여-
박승호 ( Seung Ho Park ) 안암법학회 2014 안암 법학 Vol.0 No.43
Abortion has been very controversial topic in human society for a long time. In 2012, the Constitutional Court of Korea held that the crime of self-abortion was constitutional bacause it didn`t violate the proportionality principle. The Federal Constitutional Court of Germany found that state had the obligation to protect fetus` life, that the fetus` life took precedence over pregnant woman`s right of self-determination for whole period of pregnancy, that abortion was permitted in exceptional situation that national laws couldn`t expect pregnant woman to hold pregnancy, and that abortion could be allowed through consultation in exceptional situation in the early stages of pregnancy. In Casey, the Supreme Court of United States reaffirmed the essential holding of Roe. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Second is a confirmation of the State`s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman`s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. The fetus is the subject of right to life. It is possible to restrict the right to life by law and differentiate protection according to the life development stage. The woman`s right to abortion is based on the article 10 of constitution. How to regulate abortion is the task of legislative and balancing conflicting interests differ with countries. The crime of self-abortion is constitutional bacause it doesn`t violate the proportionality principle. It is necessary to think about introducing the social indication to justify abortion.
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