Sharia and the Texas Abortion Law

In early September, the nation’s strictest abortion law went into effect in Texas. Texas Senate Bill 8 prohibits providers from performing abortions once a fetal heartbeat has been detected (generally six weeks after gestation) except where there is a life-threatening medical emergency.

Among the controversy that has ensued since, self-identifying American liberals responded by making comparisons to the Taliban, the sharīa, and Islam. Stephen King wrote in a tweet that now has over 48,000 likes, “The Taliban would love the Texas abortion law.” One columnist criticized Republicans by observing they “are less inclined to go along with the protections afforded by the U.S. Constitution than by the restrictions imposed by Islam’s Sharia law.”

The inability to speak about politics without invoking Islam and the Muslim world is a hallmark of modern American political discourse. While this is rightfully critiqued when done by the Right, liberals, who are known for supporting Muslim minorities and generally acknowledge Islamophobia, also have no problem equating the sharīa to policies they deem horrific and a violation of American core values. In doing so, they are no different than the GOP they purport to oppose, misusing our legal systems by turning them into metaphors for unrelated issues.

Understandably, the offended but earnest Muslim takes them to task, commenting that Islam in fact is far more progressive than the “Christian Right” – that of course Islam allows abortion. 

They’re not wrong. But that’s not right, either. There’s four broad issues I diagnose here: firstly, of the duty to correctly frame the Islamic stance on abortion, the second of policy, third the value of religious morals in a secular society, and lastly of Islamophobia.

Islam and Abortion

Far from engaging in apologetics or even a sort of centrism, I contend the premises of this discussion – the rights of the child and mother, the concept of ensoulment – mean that the Islamic jurisprudential range of opinions on abortion don’t fit in a pro-life/pro-choice moral dichtomy (policy will be addressed below). 

First, specific schools and opinions in Islamic jursiprudence have varying degrees of allowances, from circumstances to timeline. Some of Sunni madhahib (schools of jurisprudence) do have a legal precedent for more permissive positions and more allowances for birth control and abortion than Catholicism. Shaykh Salman Younas writes on this issue (emphasis mine):

Several people…argu[e] that abortion is essentially prohibited in Islam in all but the direst of situations, such as when the life of the mother is at genuine risk. This opinion has a sound precedent in the legal tradition and is the mainstream view of some of the legal schools, but it has often been presented in a manner that fails to acknowledge the normative pluralism that exists on the matter in the shariah and rather perniciously presents these alternative opinions as ‘liberal’ or ‘progressive’. Similarly, those who favour the more lenient view found in other legal schools are often seen characterizing the stricter opinion as ‘right-wing’ or reflective of the Christianization of Islamic law. Despite having legal precedent on their side, both groups engaged the abortion question in a manner that was rather superficial and fundamentally problematic.

Assuming the strictest position is automatically more correct on the basis of strictness alone is too simplistic. Muslims must acknowledge there are women who have a valid excuse to seek an abortion, as defined by the valid opinion they follow or if they are in a severe circumstance seeking dispensation from a Mufti/Muftiyyah, needing safe medical care. The degree of opposition and dissent from the consensus of today is not automatically closer to tradition. 

Leaving the in-depth elaboration and contours of specific schools’ positions on abortion to the qualified, I refer to Dr. Omar Suleiman who writes that after 40 days from conception, most scholars agree abortion is impermissible “unless a pressing need exists”, and 120 days after conception there is a consensus that abortion is categorically forbidden (unless it would endanger the mother’s life). This means that most abortions today after four months is an assault on innocent life, and subsequently there is a moral obligation for Muslims to stand against this injustice. This deviates sharply from many abortion advocates, whose premise rests on the individualist, “my body my choice” doctrine, regardless of personal moral beliefs.

Additionally, where these positions fall onto a spectrum of “strict” to “progressive” is subjective. Even if Muslims in America assume the most “lenient” position, its limitations would likely not be accepted by the average secular-liberal in the pro-choice camp, who would either consider most limitations outlined under Islamic law arbitrary or a violation of women’s rights by virtue of them being “restrictive” i.e not solely dependent on the choice of a woman. 

One objection to the above is that if there are opinions are more “lenient” than others, then there is an overlap in permissibility with the pro-choice camp; hence, it shouldn’t be an issue to say Islam is not anti-abortion, or is even pro-choice. However, one could respond by presenting the “strict” opinions and conclude that Islam is anti-abortion. An arguable overlap alone in endpoints cannot entail an automatic endorsement, and there are implications of these word-choices that associate moral premises to us that we don’t agree with, especially as the contours of the debate have changed over the past few decades. The policies they support are a reflection of the ideology at play. We ultimately approach abortion from a different framework: we believe there are metaphysical and moral implications to consider, and firmly acknowledge the concept of ensoulment and sin as understood in the Islamic tradition. Limiting the discussion to “personal choice as long as one harms no other” is at odds with a Muslim perspective that acknowledges the rights of a fetus over the parents, morality in ultimately submitting Allah’s guidance, and contest the individualism that grants every private actor with no responsibility to anyone else.

Emphasizing the lenient opinion for the sake of scoring progressive points is misleading at best, dishonest at worst. Pieces like this fall into a problem of portraying the two stances as either pro-choice or anti-choice, which equate to pro-woman or anti-woman. Where secular progressivism is already assumed as morally superior, we’ve already lost when we try to position Islam as more adjacent to this ‘ism’ than others. The “lenient” Islamic position is no more pro-women than the “strict” ones, because what is moral and praiseworthy for women, for everyone, is in the following of divine guidance.

Would we be as angry in their use of sharīa if, instead of an association with the right’s “evangelism”, it was used as a positive analogy to the left’s secular progressivism? I realize this may be an unfair bar, because the former has an element of Islamophobia, but the point is framing stricter positions as “evangelicising” of Islam is incorrect. This kind of argument is emblematic of the bad Muslim/moderate Muslim trope, and intellectually dishonest as these positions have been long established and grounded in jurisprudence. I write this not disregarding that some purposefully emphasize stricter positions to ally with the right, but that overall, there is a liberalization of Islam that Muslims, who are otherwise able to see issues in allying with the right, remain indifferent to or actively cheer on. These Muslims mistakenly believe that these positions establish a “right” to what is still considered murder after ensoulment in cases beyond the narrowly defined exceptions, and call dissent grounded in this valid Islamic position anti-women. 

Law, Policy, and Ideology

Muslims are not only concerned with rights, but with reward and sin – i.e. metaphysical value and impact on the afterlife. Many actions are permissible but can be sinful, recommended, rewarded, and so on based on the intention and context of the action. Other actions can be impermissible but not punishable (in this world). These considerations make drafting laws and policies a challenge.

Fuquha (jurists) don’t create laws, they look at the Qur’an, the Sunnah, other sources of law and legal reasoning, to come as close to as divine law as possible in situations and scenarios that are unique today. Law and jurisprudence is firstly a matter of ontology and theology

While the Texas abortion law’s constraints may be closer to that of the majority of Islamic positions, it contains some problems. The current bill makes no exceptions after six weeks (42 days) for rape and incest. Additionally, in modern medicine, the start of pregnancy is dated from the first of a woman’s last menstrual cycle, whereas fuqaha’s 40 and 120 day considerations start from the date of conception, which is generally two weeks after the cycle, so the law further narrows the window compared to that of these positions.

The law also makes violation not a criminal act, but a civil violation. This changes the mechanism enforcement, as it allows any individual to sue providers or anyone who assists a woman obtaining an abortion (unlike criminal charges which are brought by the state). Its structure places an undue burden of proof on defendants against plaintiffs’ frivolous suits who can then receive $10,000 plus court fees if they win. There is no such reward if the defendant wins, so this unilateral incentive creates the “bounty-hunting” that many activists against the newly signed abortion law have been ringing alarm bells about. On a procedural level, this is a poor bill.

Additionally, it is difficult not to note the responsible party’s lack of consistency. In invoking God when convenient, they insist on the evil of abortions whilst seldom concerned with the social ills that contribute to them – adultery, loosening sexual morals, economic instability, increasing impossibility of single-income homes, etc. The quick resort to arguments of bodily autonomy and liberty as seen in their disregard of COVID-19 is a sign the GOP as it stands today is not so much religious as they are a different shade of secularism – a sort of “Christianity as an identity” that manifests in an in-group membership proved by commitment to a narrow scope of issues. The language used reflects the “woke” Left they purport to oppose, whether it be in engaging in “cancel culture” or calling for women’s rights in Afghanistan (using the same measure liberal progressivism they supposedly despise at home!) or even encouraging abortion after one’s own infidelity. Interfaith writer Esme L. Partidrige observes, just as in the case of the secular Muslim, 

certain types of conservatives will often advocate being ‘culturally Christian’, which basically translates as a will to preserve the aesthetic residues of European Christendom without actually committing to or even really believing in the religion…the tenets of faith become less important than the (effectively materialist) signifier of identity which religion provides.

The commitment to the political spectrum is prioritized over the commands of religion. How do you curtail mainstreaming of unconditional abortions while also curtailing the resortment to medically unsafe practices and encouraging the stability of healthy family units? 

Again, this is not to insinuate centrism, nor discount good-faith actors who are truly concerned with the preservation of life, but to demonstrate Muslims must think about abortion in language beyond “narrowly defined politics”: what the ideal law would look like, what positions to support in a pluralist society versus in a Muslim land, and the role of context in informing such laws is up for debate. We live in a secular country where we constitute a small minority, and obviously the laws will never fully align with the Islamic position(s). How our theological basis for understanding the concept of soul and life translates into law has also been a complex matter in Muslim-majority countries (note that Muslim-majority does not equate to implementation of the sharīa, rather we need to look into the basis for their laws).

Morality and Science

There’s multiple things to bear in mind here: one, that there are secular pro-life arguments, precisely because it’s a moral question that every framework, religious or not, contends with. Two, the state has a monopoly on violence. Choice and religious liberty are constrained by the government’s restrictions on and in regulating the harm one can afflict on another. One Muslim professor argues the potential of a religious liberty defense in response to the law, which would most likely be difficult to pursue on legal grounds because there’s not a religious injunction to pursue abortions (even if there were, the state regulates “human sacrifice”).

Abortion is a moral question. Our secular society faces difficulty in contending that morality is not only property of private actors, but a communal obligation to define and encourage good, so an objection on this level is of the obvious: we live in a pluralistic country and we cannot “impose” our values onto others. Should we not support less government involvement in our private lives, then, regardless of moral beliefs?

What this illustrates is at the crux of the debate is whether a fetus is considered life or not, and then whether and to what extent the state has a duty to intervene. Both sides resort to science in differing degrees to either prove the rationale of their position or due to the perception of science as a neutral, objective guiding beacon. But it has been unable to determine when, in the process of conception to zygote to fetus, a baby considered “alive” and consequently its termination murder. Is it when the heart beats? Is it simply a clump of cells until the nervous system is developed, or a “parasite” as some grossly and crudely refer to innocent life as? A previous article on abortion warns about the limitations of a scientific approach,

​​it is beyond the capacity of science to assign a moral worth for particular arrangements of matter because all naturalism ‘sees’ is what exists in the natural world…To simplify this further, moral statuses cannot be studied under the microscope and, therefore, do not actually exist.


Expanding on this, science cannot answer the question nor prove the moral value judgments of ‘choice’ and ‘life that deserves protection’. This means that even if science did definitively determine when “life” begins, it would have no bearing or meaning on morality, ethics, and law without a moral framework. Why is a certain life deserving of protection, or why and when does a woman have a right to terminate it? That anyone has a right to do as they wish or to their body is no more neutral than believing that the potential of life is deserving of protection since conception. Religions offer certain moral frameworks to answer these questions, as does secular progressivism. If it’s not God “entering the legislative chamber”, then something else is. Every law is predicated on some conception of right and wrong. 

Those are the questions activists, scientists, and lawmakers have to grapple with before even entering a discussion of what rights and responsibilities take precedence over others in order to draft law. This is where I believe Muslims can contribute best to the abortion debate by presenting an ethical framework that answers these questions.

Islamophobia

Lastly, I wrote earlier that the comparison between the shari’a and right-wing evangelism has an Islamophobic element. There’s an additional qualification to make about liberal-leaning perpetrators of the sharīa-abortion-inhumane comparison being concerned with the imposition of any religiously derived framework, all assumed to be cohorts of the same class of barbaric and archaic. 

However, there is an undeniable and subtle anti-Islam current in these comparisons. It’s rooted in an understanding of the sharīa as the cause for the geopolitical crises and humanitarian nightmares across the Muslim world, exacerbated in the aftermath of the U.S. withdrawal from Afghanistan. Subsequent online discussions echoed that of the post 9-11 era, with op-eds trying to divorce the sharīa from the crisis and the Taliban but inadvertently and incorrectly positioning it as no different from progressivism’s conception of women’s rights. Perhaps there’s a level of sympathy to have for this reaction in our context, as Muslims and their laws are heavily scrutinized, picked apart, and demanded to be justified as U.S. imperialism ravages their countries for resources. However, the solution is not misrepresentation nor insecurity in our beliefs and positions: they are Just, because they are from Al-Adl (All-Just) and Ar-Rahman (All-Merciful) (two of the 99 names of Allah ﷻ).

Muslim women are caught in the battleground while political actors wrestle to assauge themselves of their failures to protect their own women and establish what is right. Both the liberal and the conservative remind us of the “poor Muslim woman” and how glad she should be, free from the backwashed Muslims and now in a liberal democracy where problems are merely an anomaly, not a feature. The superficiality of political discourse reduces women’s issues to a dystopia of sharīa or a dystopia of The Handmaid’s Tale, but never the dystopia of a country that must reckon with its own history of nationalism and sexism, dissipating God-consciousness, and failure to adequately protect the moral and physical health of American society. 

About the Author: Farhana K. is based out of North America. She is interested in the Islamic sciences and medical ethics.

One thought on “Sharia and the Texas Abortion Law

  1. The author must believe in voodoo and hate science and law. At conception, a new unique person is created. The proof is that the baby has its own DNA sequence, the scientific and legal standards for individuality. If the DNA at a crime scene is different than the accused, then scientifically and legally, that DNA exonerates the accused. That is why rape kits are done at hospitals after such a crime.
    Furthermore, the baby is outside the woman’s body, just like my finger is outside of the balloon, even if I push it into the balloon to the point that you can no longer see my finger. The uterus lining is skin tissue, which demarks the inside of the body from the outside of the body.
    Even the mother’s body knows the baby is a different person and will kill the baby. via the immune system, if the mother’s body learns about the baby.
    Abortion is no different than slavery and the holocaust. In all 3 cases, a group of people were denied their humanity given by God.
    Americans allowing abortions are no different than the Germans who allowed the nearby concentration camps and gas chambers.
    Abortion is America’s Final Solution.

    Like

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