Law Criminalizing Abortion is Unconstitutional, Top Court Rules

Activists stage a rally to call for abortion rights in Bangkok on Sep. 29, 2017. Photo: Kritaya Archavanitkul / Facebook
Activists stage a rally to call for abortion rights in Bangkok on Sep. 29, 2017. Photo: Kritaya Archavanitkul / Facebook

BANGKOK — Reproductive rights activists on Thursday welcomed a ruling by the Constitutional Court that struck down a decades-old ban on abortion, on the grounds that it contradicts the country’s highest law.

In a verdict handed down yesterday, the court said Article 301 of the Criminal Codes, which criminalizes abortions as well as holding the doctors who perform them liable to prosecution, is unconstitutional. The tribunal subsequently recommended that the law be amended accordingly.

The judges also upheld a separate legal clause that allows abortions under several circumstances. A family planning group said the ruling will likely help combat stigma associated with abortion, which drove dozens of women to their death through illegal operations each year.

“The ruling would guarantee reproductive rights of women, and reduce the number of unsafe abortions,” Planned Parenthood Association of Thailand president Surasak Taneepanichskul said. “If it becomes legalized, I think the society will start to talk more about it.”

He stressed that preventative measures, such as contraceptives and sex education, should still be promoted.

Under the law struck down by the Constitutional Court, a woman who performs abortion faces a prison term of three years, and a 6,000 baht fine. Others who assist in the procedure can also be jailed for five years and fined up to 14,000 baht.

Abortion and Liberty

Pro-abortion advocates have long campaigned against the provision, especially because it contradicts Article 305 of the Criminal Codes, which grants legal exemptions in the event of rape, sex trafficking and all girls under 15.

It also allows abortions if the pregnancy poses potential physical or mental harm to the mother, or if the fetus is found to have serious disabilities or genetic disorders.

In its ruling delivered on Wednesday, the judges said the blanket criminalization of abortions under Article 301 contradict a constitutional clause that guarantees individual liberty and rights, while exceptions to abortion prescribed under Article 305 do not.

The verdict also implemented a 360-days grace period for relevant authorities to replace Article 301 with new legislation. Police will likely continue to charge individuals under the current abortion law in the meantime; police spokesman Kissana Phatanacharoen said he has not seen the ruling yet.

The complaint was brought forward in 2018 by physician and activist for women’s reproductive rights Srisamai Chuachart.

The plaintiff, who runs a clinic in Hua Hin, was charged with performing illegal abortions back in 2018, according to multiple media reports. She denied the allegations, saying that the procedure was authorized by the Department of Health.

Srisamai was performing a surgery and therefore unavailable for comment as of publication time.

Will the Verdict Change Anything?

Calls to legalize abortion are often met with resistance in the largely-conservative Thailand, and the practice is routinely stigmatized by the media and religious authorities.

Although some clinics and hospitals do provide abortions – at least 1,931 abortions were performed legally in 2019, according to data from the Department of Health – those working in the field said they prefer not to openly advertise or discuss it, due to fear of backlash from the society.

Surasak from the Planned Parenthood said he hopes Wednesday’s ruling will make the law clearer and lead to attempts to narrow down cases that can be considered as “a medical necessity.”

“The current law is unclear, so the Medical Council of Thailand has to decide which circumstances qualify for abortion,” Surasak said. “Therefore, the liability lies on the doctor.”

But the sec-gen of the Medical Council of Thailand declined to comment on the ruling, saying that he needs to see the full verdict first.

“We respect the court’s ruling and we will establish a committee to look into the details after we receive the full verdict,”  Ittaporn Kanacharoen said. “We have to see how the new legislation will turn out and then we can issue guidelines for medical practitioners.”

Ittaporn said the council recognized that abortion is a divisive issue within the medical field, but he said the safety of patients and medical ethics must always come first.

“We have to carry out our duties in accordance with the law, as well as considering the safety of patients, medical ethics, and current social values,” Ittaporn said. “We don’t judge people’s opinion. Our works are guided by medical principles.”