Explainer: How Sharia Law is More Progressive Than the US Supreme Court on Abortion – JURIST – Features

On June 24, 2022, in the landmark Dobbs v. Jackson decision, the US Supreme Court overturned Roe v. Wade in a 5-4 decision, posing a risk to the reproductive rights of millions of American women. Though of course, the debate is limited in many ways to US constitutional laws and practices, it also draws on larger overarching issues applicable to the convergence of religion and law in general, and to Sharia Law in particular.

In crafting the relevant legal and policy decisions, judges, politicians, and legal scholars have considered an array of sacred doctrines on when life starts to assess how to treat the ethical permissibility of abortion. The tone of the discourses has meant that arguments from Islamic law rarely appear in problematic dialogs on abortion and when life begins as a matter of US law, and in related arguments internal to the Islamic practice, about the varied opinions on life and abortion in Sharia. This debate helps to inform the interpretation of Islamic law per se and may be relevant to American law at the juncture of religious freedom, First Amendment rights, and free exercise (establishment clause) in the contemporary constitutional framework.

Recent studies have shown that the majority of American Muslims believe abortion should be legal under all or most circumstances.

The Dobbs decision reads “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 [citing several Muslim scholars]” and further said “there is no universally agreed-upon moment when a fetus becomes a person […], the predominant view is that a fetus acquires personhood 120 days from conception (approximately 19-20 weeks) . . .”

Thus, Muslim activists claimed that an abortion ban would not only infringe upon the US Constitution’s establishment clause, barring any state predicament with a specific religion, but also breach “lessons from Islamic history,” meaning that “governments should not declare a particular religious view correct.”

When Does Life Begin?

In the majority view of Sunni Islamic law, life begins not at the moment of one physiological phenomenon or another, but rather at the moment when the Archangel Gabriel breathes a soul into an embryo, establishing a connection with Allah (God) and the universe. In short, it is in the moment of “ensoulment” that life begins.

Muslim scholars have argued that a cluster of cells doesn’t become a person until the soul meets the body; this is an almost absolute consensus. This process is thought to take place 120 days into the pregnancy, and thus many believe abortion should be illegal after that point.

The Hanafi School — one of the four major traditional schools of thought within Sunni Islam, along with the Shafi, Hanbali, and Maliki schools — argued that abortion should be permitted so long as there is a sound reason for it. That said, some Hanafi jurists have advocated for abortions without restrictions in cases of being unable to provide for the child, extramarital sex, or rape.

Shafi and Hanbali scholars in Saudi Arabia and the Gulf states typically restrict abortion to the period within 40 days of conception. Maliki scholars, on the other hand, tend to prohibit abortion. However, abortion is not seen as analogous to murder under Islamic law, and can be permitted under even the most conservative views if a mother’s life is in danger, in which case it can be religiously justified as being a “lesser of two evils.”

In America, the pro-life movement has a long history of referring to abortion as murder, even on occasions where it could save a woman’s life. Roe v. Wade pushed back against this narrative by resolving that fetuses do not qualify as individuals under the US Constitution.

Diverging Views of Miscarriage and Birth Control

Miscarriage and birth control are handled much differently under Islamic jurisprudence than under US law.

A notable example can be found in a current law that has its roots in an unfortunate event that took place in the seventh century. According to the tale, a woman was summoned to the court of caliph ʿUmar ibn al-Khaṭṭāb, a companion of the Prophet Mohammed. She suffered a miscarriage, leading the Prophet’s son-in-law Alī ibn Abī Ṭālib to advise the caliph that even if it had not been his intention to cause the woman’s miscarriage, he orchestrated events that led to it, and thus should compensate the woman. Since then, Islamic law has largely held that women who miscarry as a result of a specific set of circumstances should be remunerated for their harm.

Concerning birth control, Islamic jurists and scholars have long held largely liberal views. While childbearing has long been seen as the key objective of sex, methods of contraception have long been embraced under the principle that it is God’s decree that people should have control over when to start a family. Of course, no principle is universal, and some Islamic legal experts view birth control as undesirable insofar as it intervenes in family creation.

Abortion Policy and Islamic Jurisprudence: A Nuanced Coupling

All Islamic schools accept that abortion should be allowed if continuing a pregnancy would place an expectant mother’s life at risk. That said, the Quran makes clear that a fetus should not be aborted due primarily to a family’s concerns they will be unable to provide for the baby, stating: “Do not kill your children for fear of want. We will provide for them and for you. Surely killing them is a great sin.” These and other norms vary in practice, highlighting the dynamic nature of this debate within Muslim societies.

In 2014, citing scholarly consensus, Egypt’s leading Islamic jurist Grand Mufti Shawki Allam opined that abortion should be proscribed after the fetus reaches 120 days of gestation — the ensoulment date. After this period, he said, abortion should only be allowed if the mother’s health would otherwise be at risk. The country’s medical liability legislation is compatible with these Islamic norms, providing a legal framework for abortions under certain conditions. However, under the Egyptian penal code, abortion is a criminal offense, carrying penalties ranging from six months in prison for women who opt to undergo these operations, to 15 years in prison for physicians who perform them. Notably, in presiding over such cases, judges have some discretion over sentencing on grounds of the perceived necessity of a given abortion.

In Saudi Arabia, scholars have held similarly that abortion should be permitted before ensoulment (120 days) in cases where the mother’s health is at risk or if the fetus suffers from abnormalities considered to be incompatible with human life. In 1990, the country’s Mecca Islamic Jurisprudence Council passed a Fatwa allowing abortion in cases of severe and untreatable malformations, as detected by ultrasound technology, as determined by a panel of experienced physicians, as consented to by the parents, and so long as the fetus is less than 120 days old. Saudi jurists and medical doctors continue to debate the intricacies of when abortion should and should not be allowed based on the Quranic texts. One result has been the expansion of the fetal medical justification for a pre-ensoulment abortion to include birth defects that would make it impossible for the baby to survive following delivery and certain uncurable conditions, and for a post-ensoulment abortion in the event that the fetus dies in the womb.

Addressing the variety of opinions Muslim scholars have expressed on the matter, Georgetown University Professor Jonathan Brown stated “the process of a life being created extends from 40 days to 120 days, when ensoulment occurs…some schools […] have been more restrictive … .regardless of when it happens, abortion is not allowed except in necessity (mother’s life is endangered). The…the later date of ensoulment and is much more flexible for anything before 120 days,” in quotes carried by Al Jazeera. Professor Ihsan Bagby of Kentucky University argued in a talk published on YouTube that abortion should be allowed up to 120 days, based on the Prophet Mohamed’s teachings about the timing of ensoulment.

Analysis: The Relative Progressivism of Islamic Jurisprudence

As you can see, Islamic perspectives on abortion are enormously diverse, and for centuries have remained a constant source of discourse. The sheer breadth of nuance that can be found across religious schools stands in deep contrast to the polarization seen amid the US culture wars that continue to drive the debate to the brink of absolutism.

In large part, this is due to the fact that under Islamic law, debates on abortion have customarily been legal, not moral. Though pregnancy terminations have been assigned legal attributes, abortion has never been treated as a religious evil, and those seeking abortions were never dismissed as ethically abhorrent.

Muslim societies largely agree that abortion should be allowed if a mother’s health is in jeopardy, and if a fetus or baby suffers from a malady seen as incompatible with life. Modern states continue to grapple with the social and moral predicaments of elective abortion, but a long history of debate has created a rich patchwork of Islamic laws based on several of the questions recently posed before the US Supreme Court.

Muslim scholars have argued that moral goodness is rarely absolute or free from negative consequences, and that not every religious injunction is rational or moral. Ultimately, the key question in this debate is that of the timing of ensoulment; most people agree that termination is forbidden after ensoulment, but scholars offer a broad range of views on what might legitimize termination before ensoulment, or whether abortion in such cases needs to be formally legitimized at all.

The million-dollar question is what might it look like if this sort of flexibility applied to the abortion discourse in America. From an Islamic perspective, it seems that Roe v. Wade’s viability theory is lacking the doctrinal pluralism that is the bedrock of the US constitutional system. The viability theory is only one principle to protect the right of women to choose. Classical Muslim scholars looked at religious conception as the start of life, as opposed to the Roe v. Wade scientific theory. Modern Muslim scholars have largely been more nuanced, flexible, and tolerant of many opinions compared to the Supreme Court. Also, in Islamic jurisprudence rules aren’t the only thing to consider in a Sharia ruling. State law, based on public welfare rather than theological interpretation, is also a core factor. Through this prism, it would appear that a state law imposing a total ban on abortion fails to serve the public good insofar as it would cause great harm to many.

Sharia law has been censured as archaic, even barbaric. And yet American policymakers who have maligned Islamic jurisprudence in the past are now seeking the support of their Muslim counterparts on the increasingly divisive abortion dilemma. People on the left are drawn to the Muslim scholars who have covered the subject from a progressive perspective, portraying Islamic law as pro-choice. People on the right, meanwhile, are calling for a religious alliance to confront what they see as a sinful practice — hoping that Islam, as an Abrahamic faith, will join them in their opposition to abortion.

An important takeaway here is that both sides are, to a degree, correct. Perplexing though it may seem to those unfamiliar with Sharia law, a plurality of opinions are allowed, and many Muslims have distinct positions in this discourse.

From this perspective, it appears that the Islamic stance on abortion is more liberal than that of the US legal regime in its current state. Toward this end, the US legal and policymaking community has much to learn from their Muslim counterparts and the relative dynamism of Islamic norms. American exceptionalism has long spurred a sense in the US of its superiority to Muslim societies that so many people in power view as backwards. But in fact, the present debate shows that US society is bound by more spiritual constraints than many Muslim societies. Numerous Muslims practice a fundamentalist, form of Islam, but not all do, and not all governments favor it. Pro-life and pro-choice activists alike have adopted differing interpretations of Islamic law in an ostensibly serious bid to solicit Muslims as foot soldiers in their battle.

Mohamed Arafa, LL.M., SJD, is a Professor of Law at the Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law and the Clarke Initiative Visiting Scholar at Cornell Law School. Currently, he serves as VisitorinLaw and the ELEOS Justice Visiting Scholar at Monash Law School (Australia)

https://www.jurist.org/features/2022/10/27/explainer-how-sharia-law-is-more-progressive-than-the-us-supreme-court-on-abortion/