Forty-nine years ago, the US Supreme Court issued a ruling that changed the lives of American women, formally legalising the right to abortion across the United States.
Now, as Roe v Wade faces its most serious threat in decades, Muslim Americans, like many others across the US, have been contemplating what overturning that decision could mean for women’s reproductive rights and access to safe abortions.
Aliza Kazmi, co-executive director of HEART, a national organisation that focuses on sex education in the Muslim community, said reproductive access and choice – including safe abortion care – is already limited or non-existent for many in the US, namely people of colour and low-income people.
“We know that many Muslim women are already being pushed away given how health inequities impeding abortion access exist and persist including due to Islamophobia, anti-Blackness, homophobia, transphobia, heteropatriarchy, Christian supremacy, etc. within the provision of health services,” Kazmi told Al Jazeera in an email.
“Should Roe v. Wade be overturned, this narrowing would devastate a majority of people in this country,” she said.
Supreme Court case
Last year, alarm bells sounded about the future of abortion rights in the US when the Supreme Court heard oral arguments in a Mississippi case, Dobbs v Jackson Women’s Health Organization. The case centres on the constitutionality of a 2018 Mississippi state law that banned abortion after the first 15 weeks of pregnancy.
While a decision is expected around the middle of the year, the Supreme Court’s conservative majority appears ready to weaken or overturn Roe v Wade, paving the way for dozens of states to restrict or ban abortion entirely.
A Texas law that prevents abortion after six weeks of pregnancy and allows private individuals to sue providers and anyone who aids them after that period has also raised concerns, pushing tens of thousands to protest across the US last year.
The Supreme Court declined to intervene in the case three times, most recently in December, effectively continuing the ban while allowing lower courts to debate it. The case has been sent to the Texas supreme court, thus delaying proceedings.
But ultimately, all eyes are turned to the Mississippi case – and its potentially historic implications for American women of all races and religions.
For decades, discourse among Muslim scholars and jurists centred on the premise that there is no clear prohibition of abortion in Islam, and that many agree that a woman’s life should be prioritised over an unborn fetus.
Islamic law, also known as Sharia, is not static or monolithic; it has evolved over time in response to cultural, social, and political contexts and societal changes, to stay relevant to Muslims.
On reproductive and sexual health, it offers a wide range of rulings, which can vary from extremely restrictive, to more flexible or permissive on questions of birth control, family planning, abortion, pregnancy, and assisted reproductive technology that helps with infertility, such as in vitro fertilisation (IVF).
Among various schools of thought and religious communities, there can be a very wide diversity in how certain issues are interpreted – and abortion is one of those topics. Fiqh (Islamic jurisprudence) scholars have given a range of time during which they said it is appropriate for a Muslim to have an abortion – from a few weeks to a few months.
But the key reason they said the procedure is allowed at all is that verses in the Quran – the Islamic holy book – indicate that a fetus is not a “life” until the soul is breathed into it; that does not happen at conception, but at some later time.
Abortion rights advocates hold cardboard cutouts of Supreme Court justices [File: Jose Luis Magana/AP Photo]
Jonathan C Brown, a professor of Islamic civilisation at Georgetown University in Washington, DC, said, “The process of a life being created extends from 40 days to 120 days, when ensoulment occurs.”
“Some schools of law at various times have been more restrictive, saying that, regardless of when it happens, abortion is not allowed except in necessity (if the mother’s life is endangered),” Brown told Al Jazeera. “The second approach goes off the later date of ensoulment and is much more flexible for anything before 120 days.”
More conservative scholars of Islamic law said that after 120 days, abortion is prohibited, except in a case where the mother’s life is in danger. Abortion after 120 days, some Muslim community members say, amounts to “murder”. The Texas and Mississippi laws, the conservative scholars have argued, are not far from what scholars with the most expansive interpretations would have allowed.
In early December 2021, seven Muslim American organisations, including HEART, published a letter arguing that Muslims must oppose the abortion ban. Some Muslims disagreed with their position, including Ihsan Bagby, associate professor in the department of Islamic Studies at the University of Kentucky. Speaking at a webinar also in December, Bagby argued that Muslims should not be publicly behind either side of the argument.
“The Islamic view is in the middle, and we should stick to it. We don’t need to be cheering on the ‘women have a right to their body’, as if it’s an absolute right, and we don’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,” Bagby said.
Bagby cited a non-written consensus made by the Fiqh Council of North America, an association of Islamic scholars, that abortion should be allowed up to 120 days, basing it on an authentic hadith about when ensoulment occurs. “Before that it’s a life, after that, it becomes a human and killing it is the same or approximate to the killing of a human. I don’t think we should give that up,” Bagby said.
The imminent threat to Roe v Wade has elicited concern from many religious communities, including some Muslims who fear the decision will affect 26 states that have abortion bans ready to go. Muslims live in all of these states, and a few in particular – Michigan, Texas, Florida and Ohio – have very large Muslim populations.
“This will not only impact Muslim women’s reproductive rights but the rights of all Muslims who have reproductive lives – all Muslims with uteruses,” said Sahar Pirzada, West Coast programming and advocacy manager at HEART. “This decision [could restrict] the religious freedom of Muslims given that Islam makes space for reproductive choice,” she told Al Jazeera.
A majority of Americans – 54 percent – believe that abortion should be legal, according to estimates from a 2018 survey by the Public Religion Research Institute. While the anti-abortion rights perspective on abortion has been predominant in US public debate, the same poll showed that only 45 percent of all Christians think abortion should be illegal in all or most cases.
Adherents of other faiths also show similar, if not more robust, support for abortion rights; 70 percent of Jews, 69 percent of Buddhists, and 62 percent of Hindus support a woman’s right to abortion, for example. According to the same 2018 poll, a majority of Muslims, 51 percent, said they supported legal access to abortion in all or most cases.
People attend the March for Life rally on the National Mall in Washington, DC, January 21, 2022 [Susan Walsh/AP Photo]
But the Texas and Mississippi laws were motivated by a particular Christian view that forbids all abortion, said Asifa Quraishi-Landes, a law professor at the University of Wisconsin-Madison who specialises in comparative Islamic and US constitutional law.
“I, and many women of religious minorities who don’t happen to agree with the restrictive Christian view that life begins at conception, are concerned that the Christian Right is trying to use the legislative power of democracy to impose their view of abortion on everyone else,” she told Al Jazeera in an email.
Quraishi-Landes also stressed that the rules of Islamic jurisprudence are not the only thing to consider in a Sharia worldview. There is also what is known as siyasa – the law of the ruler or state – which is based not on scriptural interpretation, but rather on “maslaha amma” – the public good.
“A state law banning abortion does not serve the general public good because it could cause serious harm to a lot of people (e.g. women dying from botched self-abortions),” she said. “Muslims should not support it. To do so would be to support the legislation of one’s individual religious views on others, and I believe that Muslim history shows that Muslims are better than that.”