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How Islam Settled Roe v. Wade Centuries Ago

Equating its repeal to ‘Shariah’ drags Muslims into a culture war they do not deserve

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How Islam Settled Roe v. Wade Centuries Ago
Anti-abortion advocates kneel and pray outside of the Supreme Court during the March for Life / Drew Angerer / Getty Images

As soon as the news broke that Supreme Court Justice Samuel Alito is trying to overturn Roe v. Wade, familiar — and troubling — Islamophobic tropes began to emerge in the discourse.

“America’s Taliban really hates women and minorities,” wrote Daily Beast editor Naveed Jamali on Twitter, harkening back to late September when dozens of commentators, including MSNBC’s Rachel Maddow, started referring to Texas lawmakers as the “American Taliban” — a trope that Muslim leaders are still trying to come back from.

Meanwhile, The Daily Show’s Trevor Noah gave it his own comedic twist: “All across the country, women in places like Missouri or even Texas will have the same abortion rights as women under the Taliban in Afghanistan. Think about it. We just evacuated people out of Afghanistan, and now we are going to evacuate them out of Tennessee?” he quipped — up until this point walking the fine line between humor and accidental Islamophobia. “After all these years of the right screaming about Shariah law, it turns out they were just jealous.”

Never mind the fact that this comparison is insulting to Muslims — it is also blatantly false. Rather than point out the hypocrisy of the way that the far right has spent the past 20 years criticizing the Taliban for its record on women’s rights only to turn around and enact its own brand of religious fundamentalism, this commentary misses the mark and lands as a lazy insult, akin to “you crazies are even crazier than those brown crazies!” It unwittingly drags Muslims into the so-called “culture wars,” hurling them into the fray of the right wing’s crackdown on LGBTQ and women’s rights, their faith no more than an argument to prove a point.

It wouldn’t be the first time that Muslims have had their faith exploited as a political pawn in bipartisan politics. Sometimes it is left-leaning Democrats who uphold them as an underrepresented minority in a sea of white supremacy, all the while refusing to take account of their faith and values that might not as cleanly line up with their agenda. Other times, it is the Christian far right that superimposes its conservative viewpoints onto them as fellow people of faith, assuming their faith-based politics will align.

Some conservatives are taking the bait. Jordan Peterson, who is openly suspicious of modern science, also conveniently believes that the truth and wisdom found in religion are the guidance that lost young men need in the world. He believes this so much that he has even defended anti-democratic, Salafi preachers. Other Muslims — even some scholars — have adopted the extreme far right stance that abortion is the equivalent of murder.

Ironically, these views could not be further than the actual Islamic views on abortion—which are extremely diverse, and historically a subject of constant debate and consideration across schools of thought, from fringe Islamic jurists to the mainstays of Sunni and Shia scholarship. Often it is considered from both a religious and practical standpoint — guided by the hadith (the Prophet Muhammad’s sayings and acts) but also informed by someone’s ability to give birth, and any complications that a pregnant woman might face. It is hotly debated — but it is the presence of this debate — and the breadth of nuance among different schools of thought — that makes it so different from the polarizing forces of the U.S. culture wars that is driving the debate to the brink of absolutism.

If Muslims are going to get dragged into this particular front of America’s culture wars, it is time to set the record straight. There is no debate today in Muslim-majority countries about the permissibility of abortion when the mother’s health is in jeopardy, which means that abortion remains an integral and noncontroversial part of women’s health. Modern states may grapple with social and moral dilemmas when the abortion is elective, but there is a rich tradition of Islamic law to draw on that has addressed many of the questions with which the U.S. Supreme Court is grappling.

According to Islamic tradition — and the view of the majority of Sunni Muslim scholarship — life begins not at the moment of conception nor even in the first stage of development (known as the “nutfa,” or drop) nor with the presence of the “alaqa” (that which hangs) or the “mudgha,” which literally translates to a clump of flesh that looks like chewed skin. Rather, it is the “khalqan” that describes the moment that it becomes a separate creation. This is the moment that the Archangel Gabriel breathes a soul into the embryo, creating a connection with God and the universe that gives it life. According to the hadith, this moment happens at 120 days — or approximately four months — into the pregnancy. While Islamic scholars are known for debating scripture at length, the idea that a cluster of cells does not become a person until the soul meets the body is widely agreed upon, a rare moment of almost absolute consensus.

Based on this idea, Muslim scholars largely agree that abortion should be illegal after 120 days into the pregnancy. However, it is the debate surrounding abortion before the 120-day mark where it becomes interesting. According to the Hanafi School of thought — one of the four major Sunni schools of Islamic rite and religious law — abortion should be permissible so long as there is a sound reason for the abortion. In contrast to today’s conservative positions, some Hanafi scholars permitted abortion without any restrictions at any point. Traditionally, reasons have often been a fear of being unable to provide for the child, such as the case with a lack of wet nurses or the presence of other children that depend on the mother’s milk. “Zina” or sex outside of marriage also falls into this category — and on the Indian subcontinent, there is a fatwa from the prominent scholar Ahmad Raza Khan that states that abortion is fine for a single mother and maybe even better given social stigma. It is also permissible in cases of rape. Meanwhile, the Shafi school didn’t need a reason at all.

Others are more restrictive, such as some scholars within the Shafi and Hanbali schools popular in the Kingdom of Saudi Arabia and the Gulf states, as well as prominent Shia schools, which typically limit abortion to up to 40 days after conception. Other schools, like the Maliki, forbid it entirely. But it has never been compared to murder — and, even in most conservative views, it is permitted if it is needed to save a woman’s life. This is theologically justified as being a “lesser of two evils,” according to scholars such as the late chief cleric of Egypt’s Al Azhar institution Mahmud Shaultut, Syrian cleric Mustafa al-Zarqa and Egyptian cleric Yusuf al-Qaradawi.

Meanwhile in the United States, the pro-life movement has a long history of referring to abortion as murder, even in instances where it could save a woman’s life. Roe v. Wade pushed back against this narrative by establishing that foetuses are not people under the U.S. Constitution. Now that it could be repealed, politicians like Louisiana state Rep. Danny McCormick are jumping on the opportunity to push forward legislation that would establish that fetuses are unborn children whose right to life is protected by law, making abortion — no matter how soon after conception — a homicide. It follows a troubling trend that has seen a woman in Texas handed over to the police after needing to go to the hospital following a self-induced abortion, though charges have since been dropped.

It doesn’t stop at abortion, either. Last year, a woman in Oklahoma was convicted of manslaughter after she suffered a miscarriage and was sentenced to four years in jail. Prosecutors said her methamphetamine use caused the miscarriage; the defense argued that other factors could have been at play. Now that the right to life is being reconsidered in the Supreme Court, pro-life groups are starting to push the narrative that emergency contraception — or as it is commonly known, Plan B — is akin to an abortion pill. Recently, U.S. Rep. Marjorie Taylor Greene told the House floor that Plan B kills a baby in the womb once a woman is pregnant, a statement that reproductive health advocates have long demonstrated to be a lie. Meanwhile, Idaho state Rep. Brent Crane recently gave an interview in which he announced that he is considering a state law to ban both emergency contraception and intrauterine devices (IUDs). These moves arise from the worst nightmares of an assault on reproductive freedoms, and no comparison to the Taliban is needed to make this point.

Needless to say, miscarriage and birth control are treated much differently in Islamic jurisprudence. One of the most famous stories involves the seventh-century second caliph, Umar ibn al-Khattab, summoning a woman to his court and then learning that, upon his summons, she suffered a miscarriage. Consumed with guilt, he consulted the Prophet Muhammad’s son-in-law and the would-be fourth caliph, Ali ibn Abi Talib, who had high stature and reverence in the court and whose opinion he respected. As the caliph expected, Ali told him that he needed to recognize that he held a position of power, which inevitably colored his summons, even when that was not his intention. Ali argued that Umar should pay the woman an indemnity to compensate for her miscarriage. It is a legal decision that went on to form the basis for determining that should a woman miscarry due to circumstance, it is her right to be compensated for being harmed. Islamic jurists also considered that the father should also have the right to compensation. However, the famous conservative jurists from the 14th-century Ibn Taymiyya and 19th-century Deobandis, the scholars of the Indian subcontinent that allegedly gave rise to the Taliban, ruled that as long as both the man and woman agreed with each other, it would not be necessary.

As for birth control, most attitudes were relatively liberal. While bearing children was often seen as the preferable outcome of sex, contraception was largely seen as normal as was the idea that it is God’s decree to give people control over when they start a family. Still, some treated it as “makruh” (undesirable), as it interfered with building a family, which was seen as the preferable path, the one more conducive to building the Muslim community or umma.

One of the most entertaining examples of this particular attitude comes from 12th-century historian Ibn ul-Jawzi’s book “Talbis Iblis” (The Trappings of the Devil), in which a man sleeps with a woman outside of marriage, then discovers that she has fallen pregnant. When he confesses his sin to a compatriot, the compatriot asks why he did not practice coitus interruptus. “But isn’t coitus interruptus undesirable?” he asks. His compatriot laughs. “Didn’t it reach you that adultery was forbidden altogether?”

In Islam, discussions about abortion or miscarriage have traditionally been legal — not moral — debates. While opinions varied, most conversations were grounded in an intellectual effort to consider the practicalities of a pregnancy in addition to the Quranic narrative and hadith. While “ensoulment” is the moment life begins, a mother’s life is just as important as that of the unborn child, allowing for most an abortion even after 120 days if the mother’s life was in danger, a view that values the woman’s life in ways alarmingly missing among some parts of the “pro-life” movement in the U.S.

Americans themselves often have mixed views about abortion. A recent Pew Research study found that the majority of Americans believe that abortion should be legal in some cases and illegal in others, yet the far right evangelical movement, along with those making the nation’s laws, has plundered this debate of any common sense or nuance. Instead, they are paving the way forward for an absolutist view by which people are arrested for homicide for undergoing or providing abortion or suffering a miscarriage.

So again, rather than smear the Christian far right as “no better than the Taliban,” pro-choice advocates in the United States could turn to the Islamic tradition — and for that matter, the Bible itself — for an example of how religiosity doesn’t always have to be diametrically opposed to a person’s right to choose. While a terminated pregnancy — whether an abortion or miscarriage — was given value in Islam, either legally or financially, it was never treated as “munkar” (an absolute religious evil), and those seeking them were never seen as morally repugnant. As the well-known Islamic scholar Imam al-Izz bin Abdul-Salam explained in his two-volume work, moral goodness or even awareness of something that is beneficial is rarely an absolute or without its negative consequences, and not every religious injunction is rational or moral.

What might it look like if we applied this kind of flexibility to the abortion debate in the United States? While we are discussing religious edicts that were devised before the nation-state, many of these edicts have been revised to inform Islamic law today, meaning that many people across the Middle East are able to access legal and safe abortion, as long as it is early in the pregnancy. With this in mind, it is useful to think about how this holistic approach to the intersections of faith and an unwanted — or unsafe — pregnancy could be applied to the abortion debate in the United States. A wet nurse might not be as much of a concern in the age of baby formula and breast pumping, but a person’s finances, or whether or not they will have to raise the child as a single parent, are just as important to a child’s future and a parent’s ability to provide for them. An unplanned pregnancy can get in the way of a young person’s plans to pursue an education, putting dreams on hold, often forever. Enjoying the right to choose can make the difference between raising a child in poverty or in comfort, between a person being satisfied with their choices or living with regret. When it comes to abortion, traditional Islamic authorities have much to teach us about being both “pro-choice” and “pro-life.”

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