On Wednesday (19 February), the Constitutional Court of Thailand ruled that Section 301 of the Thai Criminal Code which criminalizes abortion, violates the current Constitution and must be amended.
The request was filed by Srisamai Chueachart, an obstetrician who was previously arrested in 2018 for providing abortion at a clinic in Hua Hin. She asked the Court to rule whether Articles 301 and 305 of the Criminal Code violated the Constitution.
Article 301 states that any woman who terminates her own pregnancy or allow others to terminate her pregnancy may receive a prison sentence of up to three years or a fine of 60,000 baht or both. Article 305 states that a medical practitioner who performs an abortion in cases where it is necessary for the woman’s health or if the pregnancy is the result of a criminal offence, such as rape or seduction, or if the pregnant person is a girl under the age of 15, is not guilty.
The Constitutional Court ruled that Article 301 violates Sections 27 and 28 of the Constitution, while Article 305 does not violate the Constitution.
Section 27 of the Constitution states that “all persons are equal before the law,” and that “men and women shall enjoy equal rights,” as well as prohibiting discrimination based on differences, while Section 28 states that “a person shall enjoy the right and liberty in his or her life and person.”
The Court also ruled that Articles 301 and 305 should be amended to be more suitable to the situation, and ordered the relevant agencies to make the amendments. The ruling also stated that the Court’s decision on Article 301 will take effect 360 days after the date the ruling was issued.
According to iLaw, this means that both sections are currently still in effect, but if there is no new legislation within 360 days, Article 301 will immediately become invalid and abortion will no longer be a criminal offence.
However, since the Constitutional Court ruling did not mention Article 302, which states that anyone who performs an abortion, with the exception of medical practitioners under the conditions specified in Article 305, “shall be punished with imprisonment not exceeding five years or fined not exceeding ten thousand baht, or both,” and Article 303, which criminalizes causing an abortion without the pregnant person’s consent, it is likely that these sections will remain in effect and that abortion in these two cases will remain a criminal offence.
Constitutional Court judge Twekiat Menakanist also released his judicial opinion, which stated that Article 301, which punishes only the woman and denies her the right to choose, can be considered discrimination on the basis of sex and as denying the woman the right to make decisions over her own body, therefore violating Sections 27 and 28 of the Constitution.
Twekiat then stated that Article 301 should be amended to specify the gestational age during which a woman can legally terminate a pregnancy, and also that the laws should be changed to punish only those who perform abortions but are not medical practitioners.