The right to abortion has made headlines in the United States because of a leaked draft opinion in Dobbs v. Jackson Women’s Health Organization written by Justice Samuel Alito of the Supreme Court of the United States. If published in its current form, the opinion will overrule current constitutional precedents providing for a federal right to abortion, namely, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
At first blush, this controversy seems more specific to American constitutional law and practice than to Islamic law. Yet, the constitutional debate over whether the American constitution’s rights to liberty and privacy confer a federal right to abortion in the United States has had broader resonance with questions of religion and law. Judges, politicians, and commentators have considered religious laws and doctrines on when life begins and how they treat the moral permissibility of abortion. The tenor of the debates has meant that arguments from Islamic law occasionally appear in difficult conversations about abortion and when life begins as a matter of American constitutional law, and in related discussions internal to the Islamic tradition, about the range of opinions on abortion and life in Islamic law.
In what follows, the Islamic Law Blog has curated a collection of resources, meant not to resolve the debates, but to shed light on arguments in Islamic law and for consideration or comparison to religious law aspects of the debate on the controversy over abortion and the start of life among Muslims. These resources help inform the understanding of Islamic law on its own, and may be relevant to American law at the intersection of religious liberty and free exercise in the current constitutional row.
Muslim Americans and Abortion
- An opinion poll by the Public Religion Research Institute in 2019 found that 51% of Muslim Americans support the legality of abortion.
- In an amicus brief filed before the Supreme Court concerning the case of Dobbs v. Jackson Women’s Health Organization, submitted, among others, by Muslim Advocates, a Muslim American organization, it has been argued that “many schools of Islamic thought permit abortion, under certain circumstances, at any point up to 120 days from conception, or approximately 19-20 weeks gestation.” The amicus brief, citing various scholars of Islamic law, stated further that, among Muslims, “there is no universally agreed-upon moment when a fetus becomes a person.”Â “However,” the brief continued, “the predominant view is that a fetus acquires personhood 120 days from conception (approximately 19-20 weeks gestation).”
- In an opinion piece titled “Why Muslims Must Oppose the Abortion Ban” (Muslimgirl.com, December 2, 2021) Muslim Advocates argued that an abortion ban would not only violate the United State Constitution’s Establishment Clause, prohibiting any state entanglement with a particular religion, but also contravene “lessons from Islamic history,” which counsel us that “governments should not declare a particular religious view correct.”
Diverse Perspectives from Islamic Law
- In response to a question on abortion in 2014, Grand MuftÄ« Shawky Ibrahim Allam of Egypt’s DÄr al-IftÄ’ stated that scholars unanimously agree that if the age of the fetus reaches 120 days, the period when the soul is breathed into it, then it is impermissible to abort the fetus.
- When asked under what circumstances is abortion, orÂ ijhÄá¸, permissible and whether it is permissible to have an abortion if one has too many children,Â Allama Muá¸¥ammad YusufÂ from Banuriâ€™s DÄr al-IftÄ’, responded that it is not permissible to terminate a pregnancy after fourth months and is only permissible if the motherâ€™s health is at risk from the pregnancy.
- TheÂ MawsÅ«Ê¿a fiqhiyyaÂ [Encyclopedia of Islamic Law] (Kuwait 1998) documents several mainstream positions in classical SunnÄ« Islamic law on abortion.Â
- AtÂ Sistani.org,Â Ayatollah Sistani, states leading ShÄ«Ê¿Ä« positions in response to varied questions on circumstances surrounding abortion, orÂ isqÄá¹ al-janÄ«n.
- Saudi Arabia’sÂ General Presidency of Islamic Research and IftÄ responded to questions on abortion and the usage of ultrasound technology to determine the stage of a pregnancy. They stated that although a fetus is recognized as the creation of a human being after 80 days, if ultrasound technology identifies what appears to be an image of a human being prior to day 80, the fetus should still be recognized as the creation of a human being.
- In “Controversies and considerations regarding the termination of pregnancy for Foetal Anomalies in Islam” (BMC Medical Ethics, 15 (2014)), Abdulrahman Al-Matary (Department of Neonatology, King Fahad Medical City Riyadh) and Jaffar Ali (Department of Obstetrics and Gynaecology, Faculty of Medicine, University of Malaya) argue that Islam “is considerably liberal concerning abortion,” asserting that Islam allows abortions in the following situations: (i) if there is a health threat to the mother; (ii) during pre-“ensoulment,” that is, before the 120th day of gestation; and (iii) if there are fetal anomalies that are incompatible with life.
- Highlighting the diversity of views among Muslim jurists on the permissibility of abortion under Islamic law, Jonathan C. Brown (Georgetown University), interviewed by Al Jazeera, stated: “The process of a life being created extends from 40 days to 120 days, when ensoulment occurs.”Â Asifa Quraishi-Landes (University of Wisconsin-Madison) commented in the same piece that the Islamic principle of the common good (maslaha amma) was one reason to oppose a ban on abortion, as that ban seems to be an imposition of a particular religious worldview on all Americans across the religious spectrum.
- The Muslim Institute has compiled various Islamic views on abortion prior to “ensoulment,” usually understood as the period before the 120th day of gestation.Â While some Islamic law scholars have argued that all abortions are permissible prior to ensoulment, some require a justification for the procedure.
- Speaking at a Muslim Network TV-organized panel titled “Critical Talk: Abortion Ban” (YouTube, December 23, 2021) and striking a more conciliatory approach, Ihsan Bagby (University of Kentucky) urged Muslims to not take any sides on the current controversy: “The Islamic view is in the middle, and we should stick to it. We donâ€™t need to be cheering on the â€˜women have a right to their bodyâ€™, as if itâ€™s an absolute right, and we donâ€™t need to be on the right of the pro-life people, because their intentions are to make abortions illegal across the board in all situations.”
Analogies to Islamic Law
- Some Muslim Americans have also pushed back against analogies that compare state laws restricting abortion rights to Islamic law.Â They have argued that portraying restrictive abortion laws as being “Islamic” is based on impoverished notions of Islamic law and that “under Islamic law, the majority of medieval Muslim scholars allowed women to terminate a pregnancy before 120 days[.]”. Commenting on the efforts to equate abortion bans to sharÄ«’a, Sajida Jalalzai argued in an opinion piece for the Religion Dispatches (September 3, 2021) that such efforts obfuscate “the very religious, very Christian, and veryÂ white roots of anti-choice movements in the United States.”
- In “Explainer: How Sharia Law is More Progressive Than the US Supreme Court on Abortion” (Jurist, October 27, 2022), Mohamed Arafa (Alexandria University Faculty of Law (Egypt) & Cornell University) argues “that the Islamic stance on abortion is more liberal than that of the US legal regime in its current state.”