Administrative Lawsuit Lost Over Blocking of Abortion Information Website because Abortion is Possible Without Any Restrictions in Korea?

On October 12, 2023, Women on Web, which has been distributing abortion-inducing drugs through womenonweb.org to women from various countries who want to terminate their pregnancies upon prescriptions received from doctors globally, has lost an administrative lawsuit against the Korea Communications Standards Commission (hereinafter, the Commission), which blocked access to its website in South Korea for distributing “illegal information” back in December 2021. Open Net, a civil society organization that supports women’s sexual and reproductive health and rights, and advocates for the right to know of internet users, has expressed deep concern over the court’s decision, which states:

1. The distribution of abortion pills is subject to criminal punishment under the Pharmacists Act, and the website is aiding and abetting that crime.
2. To the argument that access to the website is necessary for women’s safety where medical abortion is otherwise impossible, the court ruled that the abortion law is void, as it was deemed unconstitutional and the legislature passed the deadline for a replacement bill, and that consequently, women are now allowed abortion without any restrictions in South Korea, and therefore, acquiring medicines through Women on the Web is not necessary.
3. To the argument that due process, i.e., advance notification to the website operator, was not respected, the court ruled that the party entitled to due process in this case are telecommunication companies ordered to block the website, not Women On Web Foundation.
4. To the argument that the blocking of the website is disproportionate, other parts of the website are only incidental to the goal of distributing the medicine, and therefore blocking the whole website is not disproportionate.

The court’s decision irresponsibly shifts the burden of the government’s inaction in establishing legal systems for the introduction of abortion-inducing drugs onto women. The court justified the Commission’s decision to block the website on the grounds that Women on Web violated the Pharmacists’ Act by distributing abortion-inducing drugs without approval from South Korean health authorities. Although Women on Web argued that their service was an emergency refuge for women who had no choice but to opt for medication instead of surgery, the court cited the expiration of the legislative deadline following a constitutional nonconformity decision, which led to the loss of effectiveness of the abortion crime under Criminal Law Article 270, arguing that abortion is now possible without any restrictions.

However, for the court’s reasoning to be valid, the options available to women in South Korea who wish to terminate their pregnancies should be comparable to the abortion methods provided by Women on Web. Currently, the only option available to Korean women for artificial termination of pregnancy is surgery. The introduction of abortion-inducing drugs, proven safe by the World Health Organization (WHO), has been delayed for over three years due to the government’s negligence. Furthermore, although the effectiveness of the abortion crime under Criminal Law Article 270 was lost due to the constitutional nonconformity decision, the Maternal and Child Health Act Article 14 still limits the permissible scope of abortion surgery and excludes it from health insurance coverage, creating obstacles for women. Some hospitals intimidate women seeking abortion surgery by citing this provision and claim high medical fees as if the surgery is illegal. The artificial termination methods available in Korea, compared to taking abortion-inducing drugs, are not only more dangerous but also economically burdensome for women.

The court’s decision is also problematic in that it justifies the Commission’s decision to block access to information guaranteed by the Constitution. The Commission blocked the entire Women on Web site, preventing access from within Korea. The court dismissed the plaintiff’s argument that the total site block violated the principle of proportionality. Isn’t it even more crucial that women in Korean society, where various options for abortion are not available, should have free access to information about various artificial abortion methods practiced worldwide? Women on Web provides not only various information on women’s sexual and reproductive rights but also on various methods for abortion. If the court deemed it necessary to block the site for violating the Pharmacists Act, it could have only blocked the parts of the site related to drug distribution. The court’s decision that this does not violate the principle of proportionality is a very one-dimensional judgment. Especially since administrative online information blocking/removal by similar foreign agencies is only conducted against contents deemed harmful universally such as obscenity, gambling, contraband drugs, and incitation of violence. Blocking and deleting the entire website for potentially mediating a violation of administrative regulations governing the distribution process and distributors of drugs recommended as safe by WHO is a greater harm, infringing on the citizens’ right to know that should be protected by such content regulation.

Furthermore, the court issued an incomprehensible verdict that Women on Web is not entitled to receive notification about the correction request because the website’s blocking is based on the correction request made by the Commission to the network operator (telecommunication company). Since Women on Web is the subject of freedom of expression being restricted by the correction request, the enforcement of administrative action without giving Women on Web a chance to rebut is contrary to due process.

Open Net regards this decision as a ruling that justifies the serious infringement of women’s sexual and reproductive health and rights, as well as the citizens’ right to know, and expresses deep regret. Women on Web has decided to respond in all ways, including appeals and constitutional litigation, and Open Net, as a civil society organization that has supported freedom of expression, information access rights, and women’s sexual and reproductive health and rights, will fully support them.