The Supreme Court on June 24, 2022 in a 5-4 decision overturned Roe v. Wade, the landmark ruling that established the constitutional right to abortion. Roe since 1973 had permitted abortions during the first two trimesters of pregnancy in the United States.

The U.S. Supreme Court heard oral arguments in November 2021 on the Mississippi abortion law that bans abortions after 15 weeks. Many legal experts have warned that Roe v. Wade, which made abortion legal in the United States, was vulnerable to be overturned with the current conservative majority Supreme Court make up.

Unfortunately for millions of American women, the right to their reproductive health is seriously at risk because the “viability” reasoning of Roe v. Wade is not sustainable. The viability theory is actually inflexible and rigid. When life starts is not a legal question. It is not a medical question. It is a theological question with wide diverse opinions.

Let us consider the Sharia’s (Islamic law) view as an example of the diversity of the theological question of when life starts. Islam, like other religious traditions, considers life sacred. Muslim scholars articulated the theological/moral question as: When does a fetus become a human life?

The answer to this moral question turned on when a fetus is en-souled, or endowed with a soul. If the fetus was en-souled, the termination was prohibited but the vast majority of Muslim scholars permitted termination after a fetus was en-souled if the life of the mother was at risk.

If the fetus was not yet en-souled, the majority of Muslim scholars concluded that aborting the fetus was permissible but some conditioned the permission on a valid reason and necessity; while others permitted it for no reason. The crux of this moral inquiry, therefore, is when is a fetus en-souled.

To identify the moment a fetus is endowed with a soul, the scholars constructed the timeline of the process to ensoulment based on a tradition of the Prophet Mohammed:

“Each one of you is collected in the womb of his mother for forty days, and then turns into a clot for an equal period (of 40 days) and turns into a piece of flesh for a similar period (of 40 days) and then the angel is sent to breathe a soul into him.”

With this express timeline prophetic authority, the majority of Muslim scholars concluded that a fetus is en-souled at 10 days after the fourth month of pregnancy. The diversity of premodern Muslim scholarly opinions on this issue was wide-ranging from permitting abortions before 40 days or 80 days or 120 days of pregnancy. Ibn Aqil, a prominent 12th-century Hanbali scholar, for example, held that a Muslim woman is permitted to take medicine to abort a fetus before 120 days. This tradition of the diversity of opinions on abortion is alive today among Muslim American religious scholars.

With no Ecclesiastical authority in Sunni Islam (87% of Muslims), Islamic law was diverse, pluralistic and internally tolerant. The opinion permitting abortion before 120 days was just as valid and authoritative as the opinion the prohibited the termination after 80 days of pregnancy. In other words, a Muslim woman was free to follow any of these opinions. This is a personal and private matter. The diversity of these opinions constituted valid religious opinions a Muslim may adopt despite the differences.

What happens if a Muslim woman aborted her fetus? In most cases, nothing. It is a religious matter for God to judge. There is no government or coercive state authority to prosecute her for terminating her pregnancy. Even if the termination was past the 120 days and constituted killing of a life, the mother’s exposure is civil compensation to the fetus’ heirs, which amount is assessed according to customary blood money.

With the Islamic law on abortion as a context, it becomes clear that Roe v Wade’s viability theory is flawed and devoid of the theological pluralism that is the bedrock of our constitutional system.

Technological medical advancements have made test tube babies viable. Does that mean that life is viable at conception? We live in a religiously plural society. The viability theory is only one theory to protect a women’s right to choose. Muslim scholars in the medieval period, as we examined above, looked at the theological conception as the start of life as opposed to the Roe v. Wade scientific conception as the start of life.

The abortion Mississippi law seeks to superimpose, one moral view of when life starts on all Americans. It also violates the First Amendment rights of a Muslim woman who is now prohibited from terminating her pregnancy despite her sincere held religious belief that she is permitted to terminate her pregnancy before 120 days.

The irony here is the premodern Muslim scholars were more nuanced, flexible, accepting of various opinions compared to the Supreme Court justices who recently deputized your neighbor to sue you if you decided to make the most private and personal decision to terminate your pregnancy. And, this same Supreme Court is on the cusp of making abortion illegal.

Abed Awad is an attorney, a national Islamic law expert and was an adjunct professor at Rutgers Law School. He earned a juris doctorate from Pace Law School and an MA in Islamic Studies from the University of London (School of Oriental & African Studies) with a focus on al-Muʻtazilah's methodology to authenticate hadith. 

( Source: Star-Ledger , published on December 4, 2021 )