There is No Religious Freedom Argument
for Abortion in Islam
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
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God commanded us through the example of His Prophet to pray for the dead, and He did not say “only the dead for whom life preceded.” So if we see the form of a fetus, even if it is smaller than a mosquito, whose parts have been fashioned, and it is known that it is a human being, even before the soul was breathed into it, then based on that form it is considered a dead human being in the Sacred Law.
–Muhyiddin Ibn Arabi, Al-Futuhat Makkiyya
When a Reform Judaism synagogue sued the governor of Florida on the grounds that the state’s restrictions on abortion violated their members’ religious freedom, some speculated that a similar claim might be made for Muslims. Adopting this argument, an anonymous Muslim woman recently joined a lawsuit against the State of Indiana, arguing that its abortion law “severely burdens [her] sincere religious beliefs.”
As it happens, the attorney representing the Muslim plaintiff in the Indiana case once ably represented this author in a successful lawsuit against the federal government under the Religious Freedom Restoration Act (RFRA). Success in this case is less likely, however, since there is no legitimate religious freedom argument for abortion in Islam. Understanding why this is requires us to look at how abortion was understood by Islam’s classical, orthodox scholars.
The Prophet Muhammad taught that an angel blows a child’s soul into its body 120 days after it is conceived. As the 12th century Andalusian jurist Qadi Abu Bakr ibn al-Arabi explained, there is no difference of opinion among the schools of thought within Sunni Islam that abortion after this stage is tantamount to murder and completely forbidden. Most classical scholars made an exception to this prohibition when the mother’s life was in certain danger.
Regarding the stage prior to ensoulment, there is a range of opinions as to whether and when abortion is permissible. Some hold that abortion is prohibited after 40 days of fetal age, while others believe it is after the child develops human features or organs. The most restrictive position is that abortion is forbidden once the fertilized egg is implanted in the womb. In mainstream Islam, the most lenient position is that abortion is permitted before ensoulment in cases of hardship. Ibn Wahban, a Hanafi scholar of the Mamluk era, explained this position this way: “The permissibility (ibaha) of abortion depends on the existence of a valid excuse.” And a select few of scholars hold that abortion is permitted before ensoulment for any reason.
The diversity of opinion among Islamic scholars on the permissiblity of abortion prior to ensoulment arises not over differences in the principles of Islamic ethics and law, but in their application. Even scholars who disagreed with the most lenient position would have acknowledged the avoidance of hardship as beneficial, but they weighed the preservation of other goods more heavily.
Weighing heavily in Islamic scholars’ moral calculus was the sacred law’s aims of preserving life and progeny. An influential 13th century manual of Islamic jurisprudence explained that the rationale for forbidding abortion from the implantation of the fertilized egg is that, since the implanted egg’s ultimate outcome is life, it has the legal ruling of life. Another jurist of the classical period, Jalal ad-Din as-Suyuti (d. 1505), explained that blood money is due for aborting an embryo because “that which has not yet been created has the ruling of that which has been created.”
Even those scholars who permitted abortion before ensoulment under certain conditions often cited the preservation of life. For example, Qadi Khan, a 12th century jurist of the Hanafi school of jurisprudence, wrote:
If it becomes clear to a nursing woman that she is pregnant and her milk has stopped, and the young father cannot hire a wetnurse and he fears the death of the child, they said it is permissible (yubah) for her to abort the child so long as what is in her womb is only seminal fluid, or that which appears to be clotted blood, or an embryo whose organs have not been created.
Another good that many Islamic scholars considered was the dignity of the human being. The theologian Fakhr ad-Din ar-Razi (d. 1209) explained that this dignity consists not in the soul alone but also in the body, and this is further reflected in this essay’s epigraph. Those who forbade abortion after the appearance of human features in an unborn child prioritized the preservation of dignity for the “child of Adam,” as the human being is often known in Islamic terms, as Adam was created in God’s image and by His hand. Hence, the Shafi’i jurist Taqi ad-din As-Subki (d. 1355) said that a fetus is unlike one of its mother’s organs in that it “resembles an individual human being in likeness because it is independent with regard to (its) life and death.” Those pre-modern scholars who permitted abortion at this stage would likely not have disagreed in principle, but often mistakenly believed that human features appear in the unborn child only at the moment of ensoulment, i.e., 120 days of fetal age, an empirical error attributable to their lack of knowledge of fetal development, as their contemporaries pointed out.
With Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled its key abortion cases, Roe v. Wade and Planned Parenthood v. Casey. Those cases had grounded abortion in purported goods such as privacy and the maximization of individual autonomy. Given that such concepts arose in their current form in the wake of Western Christian movements such as the Renaissance, the Protestant Reformation, and the French Enlightenment, it is not surprising that they are not recognized as goods by classical Islamic scholars and are completely absent from their legal and moral reasoning on abortion.
With this background, we can now understand why a religious freedom claim for abortion in Islam is baseless.
Since Islamic scholars agreed that abortion is forbidden for any reason after ensoulment except to save the mother’s life, a Muslim who asserts that a state law violates his or her religious liberty to the extent that it restricts abortion after 120 days of fetal age has asserted a position that Islam itself does not hold. Moreover, state laws prohibiting abortion from conception roughly correspond to the most restrictive position in Islam, while laws prohibiting abortion after six weeks roughly correspond to Islam’s intermediate positions. Muslims who hold those positions, then, have no religiously motivated reason to object to those state laws.
Recognizing this, the argument typically advanced by progressive Muslims goes something like this: some Islamic scholars allowed abortions prior to 120 days of fetal age for any reason, therefore any law restricting abortion before that time violates the religious freedom of Muslims who follow that position. As one progressive Muslim activist puts it: “if Islam tells me I have 120 days [to have an abortion] and the state says I don’t, that feels like an infringement.”
The obvious flaw in this argument is that, under the most lenient position in Islam, abortion prior to 120 days is merely permissible (mubah), not religiously mandatory or even encouraged. For those who follow this lenient position, abortion in such cases is merely an act which, insofar as it is permissible, does not incur sin before God or liability before a hypothetical Islamic judiciary that also follows that position. So a state law restricting abortion before 120 days of fetal age does not impinge in any way on religiously-motivated beliefs or activities.
The Supreme Court dealt with an analogous situation in Braunfeld v. Brown, a 1961 case involving Orthodox Jews who claimed that a Pennsylvania law requiring businesses to close on Sundays violated their rights under the Free Exercise Clause of the First Amendment. The petitioners argued that they were economically disadvantaged by the law, since it forced them to close their businesses on the Christian sabbath, while their faith required them to close on the Jewish sabbath.
The Court rejected the argument because, for the petitioners, working on Sunday was merely an economic activity, not a religious activity. They were “not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution,” and hence, “the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.” An example of the latter situation is Sherbert v. Verner, where the Court held that, by denying the unemployment benefits of a woman who was fired because her religion prohibited her from working on the sabbath, the government violated her right to free exercise in that it “force[ed] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”
That is not to say that worldly pursuits like that of the petitioners in Braunfeld cannot take on a religious dimension. For people of faith, generating lawful income to feed one’s family, like other mundane acts, may be imbued with transcendent value and meaning. Moreover, in Islamic jurisprudence, some essentially neutral acts may acquire incidental religious value when juxtaposed with harmful alternatives: a neutral activity like playing a video game might become religiously encouraged in a specific case if the alternative were a forbidden act like viewing pornography. Certainly, cases will arise in which laws impacting such ordinary conduct should be subject to scrutiny. But to prohibit, as a rule, all laws affecting all commonplace and morally neutral acts would expand the First Amendment’s coverage to the entire sphere of mundane human activity.
As for abortion in the most lenient position in mainstream Islam, as demonstrated above, it is originally forbidden and becomes mubah – neither encouraged nor discouraged, incurring neither divine reward nor punishment – only under certain conditions, and is thus not “religiously motivated” conduct for purposes of a free exercise analysis. Moreover, even in that lenient view, Islamic legal philosophy recognizes that authorities may legitimately restrict that which is permissible if they determine it is in the interest of the common good. That is precisely the determination many states have made after Dobbs.
It is true, of course, that one might assert a religious right to abortion on the grounds that one sincerely believes, contrary to mainstream Islamic belief, that God rewards those who abort their children. In this connection, we should note that, in one important sense, whether a litigant’s belief is orthodox is not legally relevant to a religious liberty claim; the Supreme Court has made clear that “[t]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” Rather, what is relevant, as the Court recently reiterated in Holt v. Hobbs, is whether a litigant’s claim is “sincerely based on a religious belief and not some other motivation.”
A key indicator of sincerity, however, is truthfulness. So if a litigant were to falsely claim, for example, that “there is no ban on abortion in Islam at any point for any reason by any method,” as one progressive activist asserts, a court might reasonably question their sincerity. To meet her burden of proving sincerity, then, a litigant would presumably have to demonstrate that, in her unique and personal understanding of Islam, abortion is a religiously-motivated exercise, despite the empirical fact that abortion is not religiously motivated in mainstream Islam except to save the mother’s life.
This is illustrated by the case of the anonymous Muslim woman suing Indiana over its abortion restrictions. The complaint states that in her understanding of Islam, “within 40 days of conception it is proper and appropriate to seek an abortion for any reason, including reasons not authorized by [Indiana law] and under certain circumstances, the woman should seek an abortion,” including cases where the child “was simply unwanted.” As noted, though, while a few scholars do hold that abortion may be obtained before ensoulment for any reason, they did not say that it should be obtained for any reason except to save the mother’s life. While the court cannot hold the plaintiff’s unorthodox belief against her, she will have to establish it is sincere and not a mere pretext for circumventing the law.
Moreover, apparently to establish her sincerity, the Muslim plaintiff claims that “her religious beliefs influence many aspects of her life, including her moral and ethical decisionmaking.” At the same time, she asserts that she “is not married” but “is at risk of becoming pregnant,” i.e., that she is sexually active. The complaint avers that the plaintiff “therefore will abstain from sexual intercourse, as that is the only way she can ensure that she will not need an abortion,” a decision she is making “solely because of” Indiana law. Islam, however, prohibits sex outside of marriage, and the complaint does not allege that the plaintiff disagrees with this tenet, nor that she intends to marry. Hence, the upshot of her claim is that the harm she suffers from Indiana’s alleged violation of her religious liberty consists, at least in part, in being prevented from engaging in the religiously prohibited act of sex outside of marriage.
With a claim suffering from such internal inconsistency, it may prove difficult for the plaintiff in this case to establish that she is sincerely motivated by her religious beliefs. As one court of appeals has observed, “[e]vidence of nonobservance is relevant on the question of sincerity.” Similarly, religious liberty scholar Kathleen Brady writes, “if the claimant adheres to few of the tenets of their faith, a court might reasonably conclude that the claimant’s assertion of religious faith is not genuine.” Given Islam’s stance on abortion, it is in the nature of the case that attempts to craft a religious exercise claim around it, and in particular to establish sincerity, will tend to be convoluted and contradictory.
Another claim of Muslim progressives is that, after the fall of Roe, state laws prohibiting abortion at early stages of pregnancy amount to the government establishment of a Christian theological conception of life. Not only does this violate the Establishment Clause, they argue, it is a slippery slope toward some future situation in which Muslim religious practices are infringed upon.
This argument too rests on several false assumptions. The most egregious of these is the assumption that any law bearing on a moral question can have morally neutral underpinnings. Roe and Casey were grounded in the premise that the right of an adult human being to individual autonomy is so fundamental that any inquiry into the moral status of an unborn human being is irrelevant. “We need not resolve the difficult question of when life begins,” said Roe, to conclude that the purported “right of privacy…encompass[es] a woman’s decision whether or not to terminate her pregnancy.” As the Casey Court put it, choosing to abort a child is “central to personal dignity and autonomy,” and therefore grounded in the purported constitutional “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Of course, this is not a morally neutral position, though it pretends to be. While the Casey Court claimed not to “mandate our own moral code,” it set forth a moral position aggressively at odds with Islamic moral and legal philosophy. It is unclear why Muslim progressives would deem the enshrinement of such a position into law as favorable to Muslim values and interests.
To be sure, neither is it morally neutral when a law seeks to preserve human life from conception. But while this view clearly originates for many in religious thought, it may also be asserted on non-religious grounds. The Mississippi law at issue in Dobbs, by its terms, grounds its ban on abortion after 15 weeks of gestational age in scientific findings on fetal development of signs of life and humanity, the implicit premise being that a fetus with such features has dignity that deserves legal protection. That premise is certainly moral but not necessarily theological. Even in Roe, the Court acknowledged that states have an “important and legitimate interest in protecting the potentiality of human life.” Hence, the mere fact that a law is grounded in a premise that agrees with a religious belief does not make that law an establishment of religion. As the Court explained in McGowan v. Maryland, another Sunday law case:
The “Establishment” Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation
Indeed, this argument of Muslim progressives is quite dangerous. As exemplified by the faith-driven movements for abolition and civil rights, the American constitutional order contemplates people of faith participating in public debate about the common good. If this were not the law, Muslims and every other religious denomination would be barred from making policy arguments rooted in their faith’s moral principles or even from supporting policies that sound in those principles. The result would be French-style secularism, not American disestablishment and free exercise. It would infringe on Muslims’ religious duty to contribute to the common good, and it would exclude them from the public square far more thoroughly than the advocates of anti-sharia bills could ever hope to do.
In their pursuit of a right to abortion, Muslim progressives want to argue that an act that is merely permissible within the most lenient position in mainstream Islam should be deemed constitutionally protected religious exercise. This argument is untenable. Far from constituting a violation of Muslims’ religious freedom, state laws restricting abortion, in their reason and effect, are far closer to Islam’s legal and moral philosophy than the aggressive secular individualism that animated Roe. Indeed, in Roe, the Supreme Court effectively authorized the death of thousands of unborn children after 120 days of fetal age, an act that all orthodox Islamic scholars agree is the killing of an innocent soul. The possibility that such killings may come to an end now that Roe has been overruled is a moral good that, by the criteria of Islamic sacred law, far outweighs the fact that some abortions may be restricted that would have been permitted by some Islamic scholars. ♦
Ismail Royer serves as Director of the Islam and Religious Freedom Action Team for the Religious Freedom Institute, which has filed over 20 amicus curiae briefs in federal courts supporting the religious liberty of Muslims, Jews, and Christians. Since converting to Islam in 1992, he has studied religious sciences with traditional Islamic scholars, and spent over a decade working at non-profit Islamic organizations.
Royer, Ismali. “There is No Religious Freedom Argument for Abortion in Islam.” Canopy Forum, September 23, 2022. https://canopyforum.org/2022/09/23/there-is-no-religious-freedom-argument-for-abortion-in-islam/