This has been a difficult summer for rights activists around the globe. First, the Karnatka High Court upheld the Indian government’s ban on the hijab. Then a French administrative court decided to sustain the prohibition on burkinis. And finally, the US Supreme Court overturned Roe v. Wade. This controversial decision has sparked debates across multiple frontiers; but one interesting phenomena has been that of watching the abortion debate play out among Muslims. Pro-life and pro-choice advocates alike have deployed varying interpretations of Islamic law in a seemingly desperate bid to enlist Muslims as foot soldiers in their battle.
In recent times, Shariah or Islamic Law has been censured by some as archaic, excessively stringent, and even barbaric. These criticisms have been shrugged off by most Muslim scholars as biased, ignorant, blanket statements devoid of reasoning. Yet, people who have made such dubious assertions in the past are now flocking to their Muslim counterparts, seeking their support in the recent arguments on the abortion predicament. This is largely due to Muslim writers who have painted the issue with a liberal brush and portrayed Islamic Law as pro-choice. On the other hand, the anti-abortion Right calls for an “alliance of religions” to tackle this “ungodly” practice, hoping that Islam, as an Abrahamic faith, stands against abortion vociferously and absolutely.
Is there a degree of truth to both these opinions? Yes, though confusing to a layman, the flexibility and diversity of opinions in Islamic law allow for Muslims to have a unique position in this bipartisan debate. Before going into the topic, let me clarify that unlike what is going on in the states nowadays, the Islamic debate on abortion is purely a scholarly discourse and does not involve angry crowds chanting catchy and incisive slogans.
The Islamic scholarship is itself quite diverse, where within the two major sects, the Sunnis and the Shia, there are quite a few schools of fiqh (jurisprudence). The Hanafis or Ahnaaf, the Shaafis, the Malkis, and the Hanabila are the four cornerstones of Sunni scholarship, while the Shia jurisprudence is mostly centered around fiqh Jafria. Although these schools of thought have been known to have diverging views on many important issues, abortion is not one of them. There seems to be consensus on the general unlawfulness of abortion, but like all things legal, the devil is in the details.
No universal right to abortion is recognized by any school of thought, it is generally prohibited, and allowed only in exceptional circumstances, or cases where there is a uzr sharia or legitimate excuse. This is the opinion of the Ahnafs and the Shia, who both agree that the ‘ensoulment’ of the fetus takes place after it attains the age of 4 months. Hanabilas term an abortion before the 120 days as makrooh or undesirable, but impose an absolute prohibition past this period. Malkis are torn amongst themselves, some of them believe in an absolute prohibition regardless of ensoulment, nevertheless, for them, it takes 40 days for the fetus to acquire its soul. The Shaafis seem to be the most liberal of the lot, they believe that abortion is permissible even without a legitimate reason provided both the parents agree, but it must be performed before the fetus reaches 40 days of age, which, just like the Malkis, is the age of ensoulment.
Now what makes things interesting is the million-dollar question “what qualifies as a legitimate reason?”, this question has no universal answer that satisfies every situation. In the absence of an exhaustive list, this question is answered on a case-by-case basis. And that is exactly how it is done in practice. If someone needs an abortion, they contact a Cleric or a Mufti (a practitioner at the dar-ul-ifta or a school of fiqh) who would advise them using the Islamic scriptures (the aforementioned schools of thought would typically influence this).
As for some general reasons that might justify abortion under extreme circumstances, these might range from cases where the life of the mother may be at stake or where the fetus exhibits anomalies incompatible with life. In other cases, the criteria can also accommodate certain social circumstances. A renowned Islamic Scholar from the Indian Subcontinent Ahmad Raza Khan Barelvi has held in his fatwa that a single mother can legally get an abortion; however, importantly, he termed it legal not for financial reasons but for the social stigma single mothers face in South-Asian societies.
What makes this Muslim practice comparatively open-minded is how it is perceived as a highly personal matter. It’s just a matter of going to a cleric for a fatwa or a confidential qualified opinion, and a doctor would not think twice before performing the procedure. There is no state interference at any level.
In the light of the above discussion, it is evident that even the most liberal interpretation of Islamic jurisprudence on abortion does not make it pro-choice, and neither does Islam prohibit abortion in all its forms. Certain nuances exist, but almost all the ‘recognized’ schools of thought in the Islamic tradition allow for abortion in exceptional circumstances. Coming back to the US where the overturning of Roe v. Wade may do away with abortion in some states, to put things into perspective, this would mean that the Islamic viewpoint on abortion is more liberal than the U.S. legal regime as it stands now. This essentially means that the current U.S. discourse on reproductive rights is inferior to Muslim countries like Saudi Arabia, Iran, and Egypt. Countries that have been referred to by the US think tanks as “corrupt societies in need of reconstruction.” Nevertheless, wherever you stand in this debate, there is much you can learn from the rich and dynamic Islamic scholarship.
Muhammad Hassan double majored in Law and Shariah at International Islamic University Islamabad and won a scholarship to pursue hid LLM in International and European Law at Vrije Universiteit Brussel. He has his private legal practice and is a visiting faculty member at two Law Schools in Lahore. His research interests include International Law, Islamic Law, Comparative Law and Human Rights. He has worked on extending the scope of remedial secession in International Law and plans to pursue a PhD to continue his work
Suggested citation: Muhammad Hassan, Roe v. Wade Debate Highlights Complexities of Abortion Under Islamic Law, JURIST – Academic Commentary, July 13, 2022, https://www.jurist.org/commentary/2022/07/Muhammad-Hassan-Roe-v-Wade-abortion-Islamic-law/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
