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The Roe v. Wade sheds light on the complexities of abortion under Islamic law – JURIST – Commentary

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Muhammad Hassan, jurist and visiting lecturer at the International School of Law and Business in Lahore, Pakistan, discusses the intersection between the recent Dobbs decision and Islamic law…

This summer has been difficult for human rights activists around the world. Firstly, the High Court of Karnatka upheld the Indian government’s decision hijab ban. Then a French administrative tribunal decided to maintain the burkini ban. And finally, the Supreme Court of the United States overturned Roe vs. Wade. This controversial decision has sparked debates across multiple borders; but an interesting phenomenon has been watching the abortion debate unfold among Muslims. Pro-life and pro-choice advocates have deployed various interpretations of Islamic law in a seemingly desperate attempt to enlist Muslims as foot soldiers in their battle.

Lately, sharia or Islamic law has been censured by some as archaic, overly strict and even barbaric. These criticisms have been ignored by most Muslim scholars as biased, ignorant, generalized and devoid of reasoning statements. Yet people who have made such dubious claims in the past are now flocking to their Muslim counterparts, seeking their support in recent arguments about the predicament of abortion. This is largely due to Muslim writers who painted the issue with a liberal brush and portrayed Islamic law as pro-choice. On the other hand, the anti-abortion right is calling for an “alliance of religions” to fight against this “unholy” practice, hoping that Islam, as the Abrahamic faith, vehemently and absolutely opposes abortion. ‘abortion.

Is there any truth in these two opinions? Yes, although puzzling to a layman, the flexibility and diversity of opinion in Islamic law allows Muslims to have a unique position in this bipartisan debate. Before I get to the subject, let me clarify that, unlike what is happening in states these days, the Islamic debate on abortion is purely scholarly discourse and does not involve angry mobs chanting catchy and incisive slogans.

Islamic scholarship is itself quite diverse, where within the two major sects, the Sunnis and the Shiitethere are quite a few schools fiqh (case law). The Hanafis Where Ahnaafthe Chafisthe Malkisand the Hanabila are the four pillars of Sunni stock market, while the Shiite case law is mainly centered on fiqh Jafria. Although these schools of thought are known to have differing views on many important issues, abortion is not one of them. There seems to be a consensus that abortion is generally illegal, 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 is only permitted in exceptional circumstances or in cases where there is a ouzr sharia or lawful excuse. This is the opinion of Ahnafs and the Shiitewho both agree that the “souling” of the fetus takes place after it has reached 4 months of age. Hanabilas term an abortion before 120 days as Makrooh or undesirable, but impose an absolute ban after that time. Malkis are torn between them, some of them believe in an absolute ban whatever the soul is, yet, for them, it takes 40 days for the fetus to acquire its soul. The Chafis seem to be the most liberal of the lot, they believe that abortion is allowed even without a legitimate reason provided both parents agree, but must be performed before the fetus reaches the age of 40 days, which, like the Malkisis the age of the soul.

Now what makes things interesting is the million dollar question “what can be considered a legitimate reason?”, this question does not have a universal answer that satisfies all situations. . In the absence of an exhaustive list, this question is answered on a case-by-case basis. And that’s exactly how it works in practice. If someone needs an abortion, they contact a clerk or a Mufti (a practitioner at dar-ul-ifta or a school fiqh) who would advise them to use Islamic scriptures (the aforementioned schools of thought would usually influence this).

As for some general reasons that can justify an abortion in extreme circumstances, they can range from cases where the life of the mother may be at stake or when the fetus has abnormalities incompatible with life. In other cases, the criteria may also take into account certain social circumstances. A renowned Islamic scholar from the Indian subcontinent Ahmad Raza Khan Barelvi argued in his fatwa that a single mother can legally have an abortion; however, and most importantly, he called it legal not for financial reasons, but for the social stigma that single mothers face in South Asian societies.

What makes this Muslim practice relatively open-minded is how it is perceived as a very personal matter. It’s just a matter of going to a cleric for a fatwa or confidential qualified opinion, and a doctor wouldn’t hesitate twice before performing the procedure. There is no state interference at any level.

In light of the discussion above, it is evident that even the most liberal interpretation of Islamic jurisprudence on abortion does not make it pro-choice, nor does Islam prohibit abortion. in all its forms. There are nuances, but almost all “recognized” schools of thought in the Islamic tradition allow abortion in exceptional circumstances. Going back to the United States where the overturning of Roe v. Wade may suppress abortion in some states, to put it into perspective, that would mean that the Islamic view on abortion is more liberal than the American legal regime as it currently stands. This essentially means that the current American discourse on reproductive rights is inferior to that of Muslim countries like Saudi Arabia, Iran and Egypt. Countries that have been labeled by American think tanks as “corrupt societies in need of reconstruction”. Nevertheless, wherever you are in this debate, you can learn a lot from the rich and vibrant Islamic scholarship.

Muhammad Hassan completed a double major in Law and Sharia at the International Islamic University in Islamabad and won a scholarship to pursue a Masters in International and European Law at the Vrije Universiteit Brussel. He has his own private law 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 expanding the scope of remedial secession in international law and plans to pursue a doctorate to continue his work.

Suggested quote: Muhammad Hassan, Roe c. 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-loi-islamique /.


This article was prepared for publication by Rebekah Yeager-Malkin, Associate Commentary Editor. Please direct any questions or comments to her at [email protected]


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