I Welcome the Overturning of Roe, But There are Problems

As a Muslim woman, I welcome the overturning of Roe v. Wade. However, there are two glaring problems that I believe Muslims must address. Just as there were un-Islamic ideological premises that guided the Supreme Court to Roe, overturning it returns the question of moral and legal status of abortion to states who still fail to reckon with abortion adequately or provide economic and social support to families.

Firstly, some basic history behind the Roe decision and its scope. The overturning of Roe alone does not ban abortions. Rather, overturning Roe actually releases abortion regulation to the discretion of each U.S. state. Currently, some states have laws that allow abortion, some ban it altogether, and some regulate it to varying degrees; this will change over the course of the next few weeks.

For readers unfamiliar with the U.S. legal system, at the risk of oversimplifying, let us put it this way: the U.S. has a system of federalism, dividing power at two levels between states and the national government. This means that although there are federal laws, each state also has its own laws. Some areas of law, such as interstate commerce, are explicitly mentioned in the Constitution as under the federal government, while other areas of law are under the purview of states. Furthermore, some areas of law have both federal and state laws that may even conflict at times.

Prior to Roe, states passed their own abortion laws and regulations to varying degrees. Then, Roe, decided in 1973, struck down any bans or regulations on abortion in the first trimester as unconstitutional. The Supreme Court held that abortion fell under a privacy right, grounded in the doctrine of “substantive due process,” derived from the 5th and 14th amendments of the U.S. Constitution. Over the last century, courts have derived “fundamental rights” from the Constitution that are not explicitly mentioned but are “implicit in the concept of ordered liberty” and should be constitutionally protected. A privacy right, which was extended to abortion, was one of them. Similarly, other cases such as Griswold found similar infringements of fundamental rights, holding that a married couple should be free from governmental interference in decisions regarding contraception. Additionally, while the majority opinion distinguished abortion from other recognized fundamental rights, Justice Thomas concurrently argued looking into other fundamental rights cases, Griswold among them (though I will not address it in this piece, the narrowing of substantive due process can implicate the use of contraceptives if Justice Thomas’ position gains ground).

Following this, in 1992, Planned Parenthood v. Casey held that pre-viability, regulations and bans on abortions were unconstitutional unless they passed the “undue burden” test, meaning they did not unduly burden the fundamental right of an individual. Roe and Casey established constitutional protections for a right to abort in  a time period even beyond the most lenient position in Islamic law (which finds a broader allowance before 120 days post-conception) and prevented states from passing more restrictive laws.

By overturning Roe in Dobbs v. Jackson Women’s Health Organization, the Court repealed this acknowledgement of abortion as a fundamentally protected right, and thus abortion law is fully at state — and by extension, the public’s — discretion. One of the issues with Roe had been the Court’s denial, stating that it was not making a decision as to when life begin, but effectively doing so by holding that during the first trimester a state could not place regulations or bans on abortion. The current Court critiqued this imposition on states in its opinion stating, “Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation.” It is relevant here that even among those who support broad legalized abortion, Roe presented complications, as deemed by Professor John Hart Ely, who considered it to be “bad because it is bad constitutional law” at the time of the case. [1] More recently, Yale Law Professor Akhil Amar also argued that overturning Roe was legitimate, backed by sound legal reasoning, though he himself remains in support of wide abortion access. Although the development of substantive due process has been subject to critique and support since the early 20th century, its not clear that a pro-choice position entails opposing the Dobbs verdict, or that everyone in support of Dobbs is against expanding exceptions for abortion (this certainly is my position).

Muslim commentators and scholars should engage with this history, at least on a basic level. Now that the Court has lifted the imposition of its effective determination of when life begins and is worth protecting legally, public discourse and state legislation will only continue to reach increasingly chaotic heights. In the absence of science’s ability to answer when life begins, and arbitrary measures of morality, Muslims have an objectively better system to offer. These go beyond weak pleas that Islam, too, is pro-abortion and provides no inherent challenge to the deteriorating family and sexual ethics of the West; offering more outrage at the comparison between Islam and the claimed extremism of this decision than at a pervasive societal ill; or alternatively, that we dare not “impose” religious morality on others, thus facilitating a secular system where no principle — or law based on it — is objectively better as long as one freely chooses it. Believing that something is a sin necessitates revulsion (for the sake of Allah) at its pervasiveness and societal facilitation.

However, while some view this legal development as a positive change that signals the valuation of life, I believe that it is more an indication of the politics of the current Court than it is of America grappling with the loss of its morality. Additionally, overturning Roe renders moot its previous negation of state abortion laws, and in some states cases these laws are extreme to a degree that Muslims should oppose them to the degree they threaten maternal health and make little exceptions for circumstances jurists would allow for in our legal framework.

With this in mind, there are two reasons celebrating this decision uncritically betrays a narrow measure of progress. Firstly, restrictive abortion laws are just that: they provide one obstacle to what is largely immoral, but they will not stop the tide of societal ills that have led to such an extreme. Those being hedonism, materialism, lack of healthy family units, fractured marriages and relationships, zina (adultery), casual attitudes towards sex, etc. Even as some celebrate the Court’s decision, how the largely individualistic and material culture will translate its values into changing state laws in the upcoming months remains to be seen. An increasing number of states could very well pass laws even more broad than Roe and Casey. California, for example, allows abortions for any reason prior to viability (typically around 23 weeks), allows minors to get an abortion without parental consent, requires private health care insurance to cover abortions with no co-pay, and there are more expansive bills being considered. Their state constitution also enshrines a right to privacy, which the California Supreme Court has interpreted to include abortion. Other states are poised to make a similar move to preserve abortion as a right through state constitutions.

There is also the caveat that some states have already expressed that they will not enforce their laws (for example, Attorney General Josh Kaul of Wisconsin announced that he would not enforce old Wisconsin law). While laws remain in flux, the public backlash illustrates the pervasiveness of a philosophical approach to abortion as a question of bodily autonomy, not of morality. America today is not the America of the 1970s, when Roe was decided — the movement for abortion evolved from access to “safe, legal, but rare” procedures to outright celebration and little contention even over third-trimester abortions.

Likewise, aspects of the pro-life movement too warrants criticism, despite aligning with the premise to protect the sanctity of life and potential life. The Right offers few solutions to preemptively address women seeking abortions, or to make motherhood an appealing option. Daniel K. Williams argues that the anti-abortion movement at the time of Roe was a different one, where they also wanted to expand federal funds for day care and provide prenatal insurance. There are many figures of the movement that retain this holistic vision, and those are the people Muslims can potentially align with — not right-wing Twitter commentators that have little understanding of abortion beyond an opportunity to dunk on liberals, pundits mum about infidelity, or man’s abdication of responsibility to childrearing, and the horrendous healthcare system that essentially steals money from parents. This is an affront to a shar’i system where zakat and sadaqah aids the poor, and parents are supplanted by wide family and community structures to help child-rear.

Secondly, as Roe was overturned, some states’ pre-Roe laws went into effect immediately, while other states’ will take effect over the next few weeks. Kentucky, Louisiana, and South Dakota have laws that ban abortion at all stages of pregnancy, with the only exception being cases where the mother’s life is threatened, which have immediately gone into effect. Other than the Maliki madhab (school of thought), which holds the position that abortion is impermissible since conception (barring cases of threat to the mother’s life), jurists of other madhahib have discussed some allowances before 40 days, and between 40 and 120 days post-conception. Additionally, at least 5 states that have laws banning abortion at all stages of pregnancy do not make an exception for rape (Alabama, Arkansas, Louisiana, Michigan, and Texas). Shaykh Salman Younas, who is in support of the Dobbs verdict, considering it “morally and legally sound”, also asks in his lengthy article on Islam and abortion,

“…if it is misplaced and dangerous to forward the most lenient opinion in this context, in what way does the strictest possible position on abortion where exemptions are not even extended to victims of rape and incest ameliorate the current situation? Or to put it differently, how do these social and ideological problems make the strictest possible opinion on abortion the most appropriate one to adopt for the individual and society?”

In Texas, the law allows private citizens to sue abortion providers, and this creates an incentive for witch-hunting that I previously discussed in an article last year, despite supporting the overall narrowing of allowances for abortions. Many worry that the hardline bans will impact valid care for miscarriages, ectopic pregnancies, etc, even with explicit exceptions carved for such situations due to abortion providers’ fear of liability. For example, some Catholic hospitals were found in 2008 to provide inadequate care for women who miscarried. Some cases involved a hospital refusing to perform abortive procedures in an inevitable miscarriage despite the mother septic or hemorrhaging, stating they needed to wait until the fetus passed away to intervene.

Yes, these are exceptions to the overall bodily autonomy and individualistic related bases that dominate the landscape. Statistics indicate that reasons for abortion due to threatening the health of the mother constitute a very small percentage of abortions nationwide. But, these cases cannot simply be sidelined as collateral, and these women’s needs are ignored. That is no solution. Beyond a crude utilitarian analysis — claiming that the prevention of many unjust abortions outweighs the minority cases of harm — we must understand that there remains an obligation in lifting harm from every woman.

The pro-choice movement uses these cases as evidence for necessitating the broadest legalization of abortions possible. We need to argue and demonstrate that such a solution is not the only one and not logically necessary, by actually pushing to accommodate the reality of maternal health, providing a critical evaluation of each state’s law, and lobbying for expansive medical care that protects doctors’ discretion and maternal leave. Despite today’s liberal extremes, most of American history has been marked by a very inhumane understanding of women. Women’s maternal needs have often been understated, and their biology misunderstood. Conservative legal scholar Dr. Robert P. George opines,

“…the pro-life movement faces a new set of challenges—challenges even more daunting than overturning Roe. In the face of profound opposition from the wealthiest, most powerful, and most influential forces and institutions in the country, the movement needs to extend the protections of law [in] terms of fairness and equality to mothers and children alike. Going still further, it needs to work in both the public and private spheres to provide necessary support for mothers and children, never allowing their interests or well-being to be pitted against each other.”

These are complex questions of governance and statutory law — in the Islamic vision, with pragmatic considerations as Muslims living in a secular nation-state, would the ideal law criminalize abortion by sentencing providers to years in prison? Who would it penalize? Would it legislate consequences for the father if he agreed to an abortion outside of valid circumstances, or pressured a woman into one? What about separating cases of zina from married couples (and is that even possible in a country that doesn’t consider zina a legal offense)? Few have endeavored to align themselves not only in opposing the liberalization of our deen, but in encouraging Islamic values and seriously embodying justice and mercy. To call these aforementioned contentions vague or purposely centrist in an appeal to liberals is an easy critique: holding ourselves to a high standard is much harder.

While leaders of the community propose such a solution, any development in the corrupt body and structure of the secular nation-state should be scrutinized, even those that appear as a positive development on a surface level. And now that the Supreme Court has removed itself from holding any considerations, there will only be an increase in debate and argument. I encourage Muslims, while we rebut blatantly misrepresentative articles that succumb to secular progressivism as the golden standard for morality, to think twice about joining in on a discourse that is callous to the difficulties of pregnancy and motherhood.

Works Cited:

[1] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, The Yale Law Journal, Apr., 1973, Vol. 82, No. 5 (Apr., 1973), pp. 920-949

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Farhana Khan

Farhana Khan is based out of North America. She is interested in the Islamic sciences and medical ethics.

3 thoughts on “I Welcome the Overturning of Roe, But There are Problems

  1. Thank you for this piece. i haven’t been convinced either that protecting medical exceptions & extreme cases requires protection on a constitutional level rather than a state one, especially as Muslims can impact legislation on a state level. of course, states with extreme bans are going to harm many until those laws are changed.

  2. Why is this not the correct response to all of this :we live willingly in a non Muslim country and we should back that which prescribes the most rights to the most people, within reason. None of this article addresses falling crime rates and higher prosperity when abortion is allowed. Most of the people here aren’t Muslim, most of the world isn’t Muslim. We cannot even implement these laws properly in our own lands, due to colonialism as much as internal greed. Why is this never the lens that Islamic political discourse takes, or is it that we as Muslims SHOULD make an Islamic state because these discussions of legislation and state craft are ultimately where that goes.

    1. I have not seen any data that abortion leads to lower crime rates or rising prosperity and I doubt that there is any. And if that’s was the argument it would logically follow that the poor and disabled would need to be euthanized from prosperity. Obviously that is something completely wrong.

      As for the point about rights, I think the article is completely correct acknowledging both the rights of the mother and child and the circumstances that neccistate an abortion. Nobody’s forcing anything, just like any other group we can support laws that are inlign with our own values. Allowing the most leninant abortion rules possible is not providing the most benefit or rights as it quite literally ends the babies life.

      Best wishes

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