Content area
This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in lengthy debates (spanning millennia) on the topic, developing rich legal frameworks regarding abortion. While they disagreed on the specific circumstances and timing for permissible abortions, they acknowledged the validity of differing viewpoints. Unlike the current American legal framework wherein the legality of abortion is dependent on geographic location, Jewish and Islamic scholars created legal frameworks that allowed for individuals to choose among a range of authoritative opinions. Namely, because Jewish and Muslim scholars did not reach any unanimity of opinion on the legality of abortion, they acknowledged that on questions related to the protection of potential life no single opinion controls. Based on this approach, Jewish and Islamic law provide for a wide range of opinion, all held to be legitimate and authoritative, allowing for choice among the range of recognized legal positions. It is noteworthy that Jewish and Islamic jurisprudence have distinct perspectives on "personhood" and "life" as compared to the U.S. Supreme Court's opinion in Dobbs v. Jackson Women's Health Organization. For instance, within the first forty days after conception Jewish law refers to the embryo as "mere water," and Islamic law refers to it as a "mixed drop," both designations indicating that the embryo falls short of legal human life. This Article is the first to put Jewish and Islamic abortion jurisprudence into conversation, highlighting their remarkable similarities in the permissibility of pregnancy termination and requirements for legal human life. The Article also aims to provide guidance for Jewish and Muslim Americans bringing First Amendment abortion claims. More generally, to the extent that abortion rights discourse is deeply influenced by religion in the United States, accounting for Jewish and Islamic traditions begins to provide a more inclusive accounting beyond the hegemony of conservative Christianity.
This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in lengthy debates (spanning millennia) on the topic, developing rich legal frameworks regarding abortion. While they disagreed on the specific circumstances and timing for permissible abortions, they acknowledged the validity of differing viewpoints.
Unlike the current American legal framework wherein the legality of abortion is dependent on geographic location, Jewish and Islamic scholars created legal frameworks that allowed for individuals to choose among a range of authoritative opinions. Namely, because Jewish and Muslim scholars did not reach any unanimity of opinion on the legality of abortion, they acknowledged that on questions related to the protection of potential life no single opinion controls. Based on this approach, Jewish and Islamic law provide for a wide range of opinion, all held to be legitimate and authoritative, allowing for choice among the range of recognized legal positions. It is noteworthy that Jewish and Islamic jurisprudence have distinct perspectives on "personhood" and "life" as compared to the U.S. Supreme Court's opinion in Dobbs v. Jackson Women's Health Organization. For instance, within the first forty days after conception Jewish law refers to the embryo as "mere water," and Islamic law refers to it as a "mixed drop," both designations indicating that the embryo falls short of legal human life. This Article is the first to put Jewish and Islamic abortion jurisprudence into conversation, highlighting their remarkable similarities in the permissibility of pregnancy termination and requirements for legal human life. The Article also aims to provide guidance for Jewish and Muslim Americans bringing First Amendment abortion claims. More generally, to the extent that abortion rights discourse is deeply influenced by religion in the United States, accounting for Jewish and Islamic traditions begins to provide a more inclusive accounting beyond the hegemony of conservative Christianity.
INTRODUCTION
The abortion debate in the United States is typically framed in secular versus religious terms with the presumption that the religious perspective is anti-abortion.1 The religious perspective typically presented defines the embryo or fetus as a human being with full legal rights.2 This may be in part because of the widely held perception that conservative Christian doctrine influenced the Dobbs decision.3 Yet the religious perspective presented is almost exclusively conservative Christian and ignores the complex jurisprudence of other religions, such as Judaism and Islam, that deeply engage with questions such as when the status of a full human with rights inures.4 While other articles have discussed religious liberty and abortion5 and others have discussed abortion rights post-Dobbs,6 this Article is the first to examine the abortion jurisprudence of two of the world's oldest and largest religions and legal systems.7
In this Article I highlight the distinctive legal pluralism of both Jewish and Islamic law that recognize diametrically opposed opinions as authoritative, allowing individuals to choose amongst a range of recognized opinions on the legality of abortion. I argue that while the contours of the abortion debate within Jewish and Islamic law are often similar to those in the American debate, these religious legal systems have a fundamentally different approach to accommodating differences of opinion on abortion than those currently found in many American states.8 Namely, Jewish and Muslim scholars acknowledged that no single opinion controls on the legality of abortion, as ultimately only God knows the correct answer on questions related to the protection of potential life.9 Based on this approach, Jewish and Islamic law concluded that a wide range of opinions should all be held as legitimate and authoritative, allowing for choice among the range of recognized legal positions.
This is contrary to the portrayal of Islamic law in popular media, which is usually based on Islamophobic tropes.10 For instance, after the Dobbs decision, edited pictures were circulated of Supreme Court justices with "beards, turbans, and burqas," implying that the Dobbs decision was akin to decisions found under Islamic law.11 Conflating conservative Christian abortion doctrine with that of all religions and religious peoples grossly misrepresents the legal debates present in Judaism and Islam and the actual religious beliefs of Jewish and Muslim Americans. The abortion debate in Jewish law is at least 2,500 years old and over 1,400 years old in Islamic law. Despite conflicting claims as to the absolute permissibility and prohibition of abortion under Jewish and Islamic law, the reality of Jewish and Islamic law is that the only definitive claim that can be made with intellectual integrity is that a vast diversity of opinion on the permissibility of abortion exists within each legal tradition.
The motivation for this Article is in part because of the statistic that "62% of women who have abortions [in the United States] identify as women of faith and most religious people in the U.S. support the legality of abortion."12 Despite this, anti-choice perspectives have dominated the religio-legal question on the permissibility of abortion. This perspective tends to attribute personhood to the embryo at conception and equates feticide with homicide. Importantly, the anti-choice perspective attaches full legal rights to the embryo/fetus that under Islamic and Jewish law would attach only after 120 days post conception and after birth, respectively.
This Article examines abortion jurisprudence of Jewish and Islamic law, challenging the notion that a "religious perspective" is de facto anti-abortion. Additionally, this Article provides a comparative analysis of the overlapping and distinct features of the abortion jurisprudence of the Jewish and Islamic legal traditions. Finally, this Article argues that the legally pluralistic approach within Jewish and Islamic law of legally accommodating a range of different religious beliefs on abortion may serve as an example for the American legal system. While a Muslim or Jewish scholar may hold that potential life is entitled to an early, high degree of protection, they likewise hold that a different, opposing opinion may be legitimate and authoritative.
Jewish and Islamic abortion jurisprudence is not merely theoretically impactful on the American legal system. Post-Dobbs, Muslims and Jews have brought litigation challenging antiabortion legislation on religious freedom grounds. For instance, in an Indiana case the court specifically references the understanding of fetal life under Jewish and Islamic law.13 In reference to Judaism, the Court says: "Under Jewish law, a fetus attains the status of a living person only at birth, when the greater part emerges from the mother. Prior to that time, the fetus is considered as part of the woman's body, not having a life of its own or independent rights."14 In reference to Islam, the Court not only references the Islamic understanding of when a fetus becomes a human, but also acknowledges the diversity of opinion that exists on the issue: "Although, as in any religion, there are different Islamic schools and views, some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception."15 This is in sharp contrast to the state's claim that "'it is a simple scientific observation' that 'the human fetus is a human being,' as are zygotes and embryos."16 This claim is based on the Indiana legislative determination that "'human physical life' begins when sperm meets egg."17
While Muslim and Jewish jurists address the question of when full legal personhood begins, they often focus their inquiry on the specific circumstances under which abortion is permissible. This derives, at least in part, from a recognition of the inherent potentiality of fetal life. These legal systems recognize the potentiality of fetal life and provide protections for that potential life, increasing protections as the likelihood of birth increases, without affording the fetus the full legal protections granted a born person. Thus, the taking of fetal life does not rise to the same level of sanction as murder, because fetal life is not considered full human life. This is especially notable in the context of the recent Alabama Supreme Court ruling, recognizing IVF embryos in a lab as people.18
Despite the lack of full legal personhood, that does not mean that abortion is permitted in all circumstances up until birth. Rather, a diversity of opinion exists within Jewish and Islamic law on the permissibility of abortion. Within both legal traditions, some scholars permit abortion up until forty days of gestation without cause, although abortion without cause is considered "disliked" by some of these scholars. Some scholars within Islamic law allow abortion without cause up until 120 days, although these scholars are in the minority. The next category of scholars comprises those who allow for abortion with cause, generally within the first 40 to 120 days of gestation. These causes include termination due to fetal anomalies, impact on maternal mental health, pregnancy from an extra-marital relation, rape, concern for the well-being of an existing child, and general threats to the mother's health.
Depending on the circumstances, some scholars extend the permissibility of abortion past the 40-to-120-day gestation period. Finally, almost all Jewish and Islamic law scholars require abortion up until birth if the mother's life is threatened. There is universal agreement among Jewish and Islamic law scholars that maternal life must be prioritized over fetal life, though some scholars require a more stringent finding of an imminent threat to the mother's life, confirmed by multiple physicians.
Remarkably, this range of opinions on the permissibility of abortion are all considered authoritative. Inherent to Islamic and Jewish law is the recognition that multiple valid opinions can exist on an issue.19 Majority opinions may exist but do not invalidate the legitimacy of a minority opinion. Furthermore, the predominance of an opinion may change over time. This diversity of opinion is due in part to the responsive nature of Jewish and Islamic law, which are dynamic and engage with changes in scientific, social, and political circumstances. Also inherent within these religious legal systems is a humility that recognizes the fallibility of the human endeavor to understand divine law. Provided scholars are properly trained and follow recognized methodologies, the opinions they reach may be recognized as authoritative.20
A quick note on the nomenclature used in this Article. While "the term fetus technically refers to the unborn after 8 weeks of gestation," I will, like other authors, use the term to broadly "refer to the unborn through the entire period of pregnancy."21 Given that this Article deeply engages with classical jurisprudence within religious legal traditions, the terms "pregnant women," "maternal," etc., will generally be used as they more accurately reflect the terminology of classical and contemporary scholars within these traditions, although the term "pregnant people" will be used occasionally to reflect contemporary norms.22 Finally, this Article will use the terms "abortion," "induced miscarriage," and "pregnancy termination" interchangeably. This is in part because the term "abortion" in contemporary usage is often used to mean the termination of an unwanted but otherwise healthy pregnancy, and classical texts typically do not differentiate in nomenclature between these terms. For example, Arabic and Hebrew, respectively, use a single term in place of separate terms for abortion, miscarriage, and pregnancy termination.
Part I of this Article situates this scholarship within the contemporary controversies and claims in the American legal landscape. It discusses the support for legal abortion among Jewish and Muslim Americans. It also describes the litigation Jews and Muslims have brought against anti-abortion legislation on religious freedom grounds and highlights litigants' arguments based on their understanding of the diversity of opinion on abortion within Jewish and Islamic law. Part II then focuses on Jewish abortion jurisprudence, the foundational texts, and the debates among scholars. It discusses the importance of and respect for diversity of opinion within Jewish law in the context of abortion jurisprudence. Part III describes the intricacies of Islamic abortion jurisprudence with a focus on foundational texts, intra and inter school debates, and contemporary opinions. It also highlights the importance of diversity of opinion as a feature of Islamic law. Part IV puts Jewish and Islamic abortion jurisprudence into conversation. This Part draws parallels between the two legal systems and distinguishes the unique features of each. Finally, the Article argues that the legal pluralism of Jewish and Islamic law can be used in First Amendment claims and may contribute to the continued development of Jewish and Islamic abortion jurisprudence.
I. CONTEMPORARY CONTROVERSIES AND CLAIMS
The reaction to the overturning of Roe v. Wade with the Supreme Court's Dobbs opinion, and the ensuing legislative changes in states like Texas, featured Islamophobic tropes including the widespread use of hashtags such as "#ShariaLawInTexas" and "#TexasTaliban" in the popular media.23 These tropes reflect "a global assumption . . . that Muslim rules about gender and women's rights [and therefore abortion] are stricter than dominant Christian American ones."24 These Islamophobic framings not only distort the actual political and religious motivations of anti-abortion activists, but also misrepresent the actual beliefs of religious Americans, including Muslims and Jews, and the abortion jurisprudence from their respective faiths.
Though the abortion debate is often framed in secular versus religious arguments,25 within the United States, a post-Dobbs survey conducted by the Public Religion Research Institute in 2022 found that "[m]ajorities of most religious groups say that abortion should be legal in most cases."26 In fact, only four "major religious groups" have majority support for abortion being illegal in most cases, all distinctly Christian groups: "White evangelical Protestants," "Jehovah's Witnesses," "Latter-day Saints," and "Hispanic Protestants."27 In contrast, Catholics across the racial spectrum say that abortion should be legal in most or all cases: "Catholics of color" at 71%, "white Catholics" at 62%, and "Hispanic Catholics" at 61%.28 The attitude of Catholics largely reflects that of all "Americans" regardless of religious affiliation, of which 64% "say abortion should be legal in most or all cases."29
These numbers are also reflected in the Jewish and Muslim communities. "American Muslims" align closely with "Americans" at large with slightly above average support for legal abortion, with 66% saying that "abortion should be legal in most or all cases."30 Strikingly, Muslim and Jewish Americans have some of the lowest levels of support of any group for overturning Roe.31 Only 24% of "American Muslims" and 23% of "Jewish Americans" support the overturning of Roe, with only "religiously unaffiliated Americans" and "Unitarian Universalists" having lower rates.32 Likewise, "Jewish Americans" have some of the highest support for legal abortion with 79% of Jewish Americans saying abortion should be legal in most or all cases.33
Furthermore, even among Jews and Muslims who believe abortion should be illegal in most cases or in all cases, only 6% of Jewish Americans believe it should be illegal in all cases, and only 1% of American Muslims believe it should be illegal in all cases (the lowest of any religious group and a significantly lower percentage than Americans overall, of which 9% say abortion should be illegal in all cases).34 In short, we find that Jewish Americans have some of the highest rates of support for legal abortion, and American Muslims support legal abortion with rates on par with the average American and, regarding making abortion illegal in all cases, show the lowest level of support of any religious group.
In some ways the beliefs of most Americans are also reflected in Jewish and Islamic jurisprudence, regarding the role gestational age and circumstance should play in abortion legislation. For instance, a 2022 Pew Survey found that 61% of U.S. adults "say abortion should be legal in all or most circumstances," but this opinion is "contingent upon such circumstances as when an abortion takes place[,] . . . whether the pregnancy endangers a woman's life and whether a baby would have severe health problems."35 Of those who support legal abortion, 56% "say how long a woman has been pregnant should matter," and in some cases abortion should be illegal.36 Additionally, most Americans want abortion to be legal but with restrictions.37 Likewise, even among Americans who say abortion should be illegal in most cases or all cases, a significant number believe there should be exceptions for threats to the life of the mother, at 46%, and rape, at 36%.38 These exceptions are likewise reflected among the diverse legal rulings of Jewish and Muslim jurists.
Survey results also suggest that abortion is an especially salient issue for Jewish Americans, as compared to all other religious groups, as they "are the most likely [group] to say that they will only vote for candidates who share their views on abortion."39 This is perhaps the reason Jewish Americans have been on the forefront of challenging anti-abortion legislation on religious freedom grounds. Such anti-abortion legislation prioritizes the protection of fetal life over maternal well-being.40 Although Reform, Conservative, and Orthodox Jewish organizations reacted differently to the Dobbs decision, they all agreed that "[l]egislation and court rulings, federally or in any state, that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our [religious] responsibility to preserve life."41 This is because Jewish authorities agree that Jewish law requires an abortion if a mother's health is in danger-maternal life takes priority over fetal life, even during labor.42
Based on religious freedom grounds, "individual Jews, rabbis, and Jewish advocacy groups filed lawsuits in Indiana, Florida, Mississippi, and Kentucky objecting to the abortion restrictions."43 In these claims, plaintiffs have often involved Halacha (Jewish law). For example, the plaintiffs in the Kentucky abortion challenge directly reference Halachic definitions of "life" in two ways. First, "[w]hile a fetus is deserving of some level of respect under [H]ala[cha], the birth giver takes precedence. Jews have never believed that life begins at conception. This belief belongs to certain Christian groups."44 Second, "[u]nder Jewish law, a fetus does not become a human being or child until birth."45 The Kentucky plaintiffs claim that the abortion ban places a substantial burden on their religious freedom in discounting the Halachic definition of "life" in violation of Kentucky's Religious Freedom Restoration Act.46 Likewise, the plaintiffs in the Indiana suit invoke the Halachic mandate to protect a mother's life in claiming that "plaintiffs . . . have sincere religious beliefs that direct them to obtain an abortion under circumstances prohibited by S.E.A. 1[, Indiana's legislation banning abortion,] and who are at risk of needing an abortion in the future consistent with their beliefs even though the abortion would otherwise be prohibited by S.E.A. 1."47
In one of the Florida suits, Rabbi Barry Silver filed an affidavit referencing the "great icon of Orthodox Judaism Maimonides," whose work established that a pregnant woman is religiously obligated "to abort a fetus to save herself from physical or emotional harm up until the time of birth."48 Rabbi Silver further claimed that this principle is "an established precept of Jewish law and has become part of the shared fabric of Jewish belief today."49 However, some scholars have noted that many of these claims have been brought by Reform Jews for whom Halacha is non-binding, in some cases overstating the claims of Halacha.50 That said, other scholars have outlined the ways in which Reform and Conservative Jews hold sincere religious beliefs that fall under First Amendment Free Exercise protections, regardless of whether Halacha is considered binding or not.51
Additionally, the Orthodox Jewish response has been more measured and divided.52 For instance, some Orthodox Jews have described the Dobbs decision as an "unconscionable infringement on the religious freedom of Orthodox Jews."53 Likewise, scholars such as Rabbi Michael Broyde have argued that "[d]espite abortion's particularly difficult aspects, Jews' religious liberty will be curtailed by abortion restrictions that prevent people from getting abortions permitted by Jewish Law."54 Others have celebrated the decision, describing the circumstances under which abortion is permissible under Jewish law as "extraordinary, rare exceptions to the rule that fetal life is entitled to protection."55
Similarly, American Muslims have issued statements and brought litigation in response to the Dobbs decision and have done so based on the requirement under Islamic law that "a woman's life should be prioritised over an unborn fetus."56 American Muslim advocates have also called out that anti-abortion activism is "motivated by a particular Christian view that forbids all abortion."57 They additionally highlight that the anti-abortion view is rooted in a definition of life that begins at conception.58
American Muslim activists have in some instances based their arguments in pro-choice language citing anti-abortion legislation as an attack on people's "freedom to exercise bodily autonomy and make decisions over [their] own bodies," which they understand as rooted in "inherently Islamic and . . . divinely-granted" moral agency and bodily autonomy.59 Other American Muslims have based their religious freedom arguments on the impediment antiabortion language creates for American Muslims in choosing between the wide range of authoritative legal positions that allow for and require abortion in different circumstances.60 Furthermore, these activists note not only that they are being prohibited from fully practicing their religion but that anti-abortion legislation marks a "shifttoward a Christian nationalization of American law," potentially violating the First Amendment by "favoring one religion over another" and prohibiting "individual religious practice."61 This shiftis toward a specifically conservative Christian belief that is also exclusionary of other Christian perspectives. That said, some American Muslims, like some Orthodox Jews, have reacted to the Dobbs decision by arguing that Muslims should be "cheering on" neither the pro-choice movement "as if it's an absolute right" nor the pro-life movement "because their intentions are to make abortions illegal across the board in all situations."62
Muslim advocates argue that abortion-ban legislation effectively narrows the range of opinions on abortion within Islamic law to the most conservative opinion. This then forces Muslims to follow an opinion contrary to their personal beliefs, such as a Muslim whose beliefs align with the Hanafischool effectively being forced to follow a Maliki opinion (the difference between these opinions is discussed extensively in Part III). In an interview, Professor Asifa Quraishi-Landes summarized this argument as follows: "What used to be my choice [on abortion] among the range of Muslim opinions now has shrunk to zero. Without being prosecuted by the state, I now no longer have the choice to follow a HanafiSchool [opinion]."
Within the Muslim context, other scholars, such as Ismail Royer, have argued that there is no religious freedom argument for abortion in Islam.63 These scholars argue against First Amendment claims in two contexts: (1) legislation restricting abortion after 120 days and (2) legislation restricting abortion after conception. These scholars claim that a Muslim's First Amendment claim in the first instance should fail, as Islamic law restricts abortion after ensoulment (although under Islamic law abortion is permissible if the life of the mother is threatened or the fetus is deceased).64 In the second instance, these scholars claim that restricting abortion after conception falls within the most restrictive positions in Islamic law and, therefore, is a recognized position within Islamic law.
These scholars further argue that while there are opinions in Islamic law that permit abortion prior to ensoulment at 120 days of gestation, abortion is "not religiously mandatory or even encouraged."65 This argument relies on the Supreme Court opinion in Braunfeld v. Brown, stating that for parties "not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution[,] . . . the option is wholly different than when the legislation attempts to make religious practice itself unlawful."66 However, this line of Royer's reasoning fails, as Muslims litigating First Amendment abortion claims indeed argue that they are faced with an exercise of religion that faces criminal prosecution.
In some ways, the reactions of the American Jewish and American Muslim communities reflect the diversity of opinion present in the abortion jurisprudence of both legal traditions. As detailed in Parts II and III, several distinct themes are shared under both Jewish and Islamic law, including the following: (1) life with full legal rights does not begin with conception; (2) fetal life is understood as potential life; (3) for the first forty days of gestation, embryonic/fetal life is understood as "mere water" or a clot, allowing for more leniency in that time period; (4) greater protections for fetal life result with increased gestational age; (5) the life of the mother is always prioritized over fetal life up until the moment of birth; (6) other lives, such as those of breastfeeding babies, are taken into consideration; (7) some scholars narrowly understand abortion as permissible only when the life of the mother is at stake, and other scholars allow for abortion in a range of situations; and (8) even opinions that are diametrically opposed are considered legitimate and may be adopted by laity.
II. JEWISH ABORTION JURISPRUDENCE
Within the American social, political, and legal contexts, abortion is in two polarized camps: anti-abortion (or pro-life) and pro-choice.67 Central to the anti-abortion camp is the belief that "an 'unborn child' . . . holds the moral status of a person . . . [and therefore] abortions are morally equivalent to murder and hence should be criminalized."68 On the other side, the "pro-choice position counters the pro-life argument by asserting women's right to control their bodies-women's rights and autonomy over their fertility and pregnancies (and their right to abort an unwanted fetus.)."69 The implication of this position is that fetuses do not have the same legal standing and, therefore, protections of a human.70 Such polarized positions have become "normative within contemporary society."71 The anti-abortion position at its most extreme "advocate[s] that abortion should always be prohibited, even if it's to save the life of the mother."72 Likewise, pro-choice advocates at their most extreme advocate for abortion access in all cases with no limitations.73 Although the tension between these two camps is often characterized as opposition between the religious and the secular, the reality is that related tensions can also be found in religious law. In fact, "normative [H]ala[chic] positions have always held that some amount of abortion is required . . . . and abounds with complexities and nuances."74
That said, Jewish law "ignores both questions central to the modern ethical, political, and legal debate on abortion: the status of the fetus [as human] and the autonomy of women."75 Rather, the central tension is on the potential of the fetus to develop into a person and the justifications for permitting the abortion.76 While Jewish law's historic abortion jurisprudence is comparatively liberal, "the values of procreation and preservation of human life that inform the moral discussion are fundamental."77 To that end, the Mishnah is clear that "among a range of other legal conditions that begin only at birth-one who kills a one-day-old baby, who is presumed to be full-term, is criminally liable and deserves the death penalty; the fetus, however, is not included in this provision."78 Furthermore, scholars such as Professor Michael Barilan have noted that "abortion has never been brought as a criminal case in front of any of the autonomous Jewish courts of any Jewish community, even when regulation of contraception, abortion, prostitution and infanticide entered the public arena in Europe and America."79 In fact, Jewish law is the "the oldest[] continuous legal system" today.80 Jewish law has an extended history (over 2,000 years) of addressing the legal questions on abortion.
A. Jewish Law Primer
To address Halachic issues, Ultra-Orthodox and Orthodox Jews will turn to Jewish legal scholars (poskim), who will then issue a religiously binding legal decision. Per Halacha, these legal scholars are enabled to both interpret and apply the rules of Halacha. Unlike the "pro-choice" position, according to Halacha, pregnant women do not have the authority to simply make a choice, regarding whether to keep or terminate a pregnancy.81 If a pregnant Ultra- Orthodox or Orthodox Jewish woman decides to terminate a pregnancy, Halacha requires that the decision be made in consultation with and with approval from a legal scholar.82
The legal decider for each individual case will "examine all relevant sides of the conflict, classify the question, and analyze related normative texts (e.g., the Torah, the Talmudim, and other responsa of preceding decisors)."83 Regarding the applicable rules, an important distinction exists "between rules which are based on the scripture ('de-oraita') and rules set up by rabbis, i.e., mainly by the Sages of the Talmud ('de-rabbanan.')."84 This distinction is important because if a scholar determines that the legal issue at hand is uncertain, and a rule based on scripture applies (de-oraita), then the scholar should "decide more strictly in order to avoid [the possibility] of transgressing the prohibition."85 However, if the implied rules are based on the rules of the rabbis (de-rabbanan), then the scholar has more latitude in the decision and may issue a more lenient opinion. Ultimately, there is the overriding expectation that the scholar will take all relevant legal opinions and rules into consideration in reaching their final opinion. Notably, such a ruling provides for "intimate deliberations and casuistic reasoning on a case-by-case basis without a priori exclusion of any situation calling for abortion, even of healthy and viable fetuses."86 This distinction between rules of scripture and rules of the rabbis has direct implications on the differences of opinion that exist within Jewish abortion jurisprudence.
Jewish scholars derive the law from three categories of sources-literary, historical, and legal.87 The foundational text for Jewish law is the Torah, which comprises the first five books of the Bible.88 As discussed below, several passages in the Torah, such as Exodus 21: 22-23, were used to interpret the permissibility of induced miscarriage.89 However, Jewish law is not solely derived from the Torah. The primary texts of Halacha are "the books of [H]ala[chic] midrashim, the Tosefta, the two Talmuds [Jerusalem and Babylonian], the commentaries and novellae, the responsa, and the codificatory literature."90 Additionally, the oral tradition supplements these texts.91 Notably, the Talmud serves as the primary source of rabbinic law.92
Discussions of the "Talmud" typically mean the Babylonian Talmud, which of the two Talmuds is generally considered the more authoritative.93 The Talmud is comprised of "scripture, traditions and innovations, discussion and debates of the great religious authorities of approximately 1,000 years (450 BCE to 550 CE)."94 The Talmud's structure is of a Mishna (the teaching of a teacher or a debate between two teachers) "as recorded by the first compilation of the Oral Law (edited in 200 CE)."95
Scholars interpreting the Talmud created a substantial body of texts in which they commentated, summarized, and applied the law from the Talmud.96 Jurists apply these texts in issuing their opinions and will typically utilize six legal sources in their analysis.97 These sources are Tradition (kabbalah), Interpretation (midrash), Legislation (takkanah and gezerah), Custom (minhag), Case or Incident (ma'aseh), and Legal Reasoning (sevarah).98 The last five sources, in particular, facilitate the means by which the Jewish legal system continues to develop through "creating new legal rules[] and changing existing legal rules where necessitated by changes in mores or in economic and social conditions."99
1. Branches of Judaism
Furthermore, there are three main branches of Judaism- Orthodox, Conservative, and Reform-that reflect intra and inter diversity in regard to Jewish law. Each branch has its own unique relationship with and understanding of Jewish law. The approach of each branch to Jewish law can be understood as sitting on an axis, with Orthodox and Reform Judaism sitting on opposite ends of the spectrum. Both the Reform and Conservative movements developed out of the Enlightenment and Jewish Emancipation.100 These movements led to different understandings of the required relationships of Jews to Jewish law and how Jewish law develops in light of modernity.
Reform Judaism led to the most significant changes with a rejection of the belief that Torah is divinely written.101 Furthermore, Reform Judaism rejected "the binding nature of [H]ala[cha] (religious law), and dispensed with those practices that did not seem to embody ethical values and teachings."102 Conservative Judaism originated as a reaction to the development of Reform Judaism. While Conservative Judaism agrees with Reform Judaism that "[s]cripture and other essential texts were drafted by humans, it [sees] them as . . . divinely inspired, with their principles and laws coming from God."103 Therefore, Conservative Judaism holds that Jews are still bound "by religious law, even as it suggest[s] that the law [has] always been subject to-and should continue as such into the present-human interpretation and adaptation to cultural circumstances."104 Orthodox Judaism, on the other hand, "considers the Torah as the direct and definite revelation of God's will."105 Furthermore, Orthodox Judaism holds that the "Torah and Talmud are divinely inspired and revealed and are essentially unchanging and immutable."106 Thus, according to Orthodox Judaism, "[H]alacha is considered as being the will of God, normative for all Jews, living in all times and at all places."107
Within Orthodox Judaism, rabbis or poskim (Halachic experts) interpret Halacha for the laity, and such legal opinions are considered binding. However, Orthodox Judaism is not monolithic and does not have an organized hierarchy. Therefore, all rabbis (with training) "have the right to investigate an ethical dilemma and to give a (binding) answer through an interpretation of the sources."108 This is not to say that all opinions hold the same weight, but rather different factors, such as the reputation or influence of the legal scholar, might influence the weight it holds.109 Furthermore, within Orthodox Judaism a range of legal opinions, even those that disagree, may all be considered valid. For instance, in regard to abortion, the Halachic debate on abortion between Rabbi Moshe Feinstein and Rabbi Eliezer Waldenberg will be discussed in section II.D.110
Although Conservative Judaism views "the Jewish people's divine experiences [as] the source and essence of [H]alacha, which is liable to changes and historical developments[,] . . . [H]alacha [still] plays a definite and normative role."111 Like in Orthodox Judaism, Halacha is normative and binding. However, the interpretation of Halacha is considered a process open to revision. That said, the process of revision only lies with "the rabbinic leaders of the community, because of their knowledge of the content[,] aims, and methods of [H]ala[cha]."112 During the deliberation process, such leaders "must keep the customs and needs of the community in mind."113 Conservative Rabbis determine issues of Halacha and issue rulings through "the Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly."114 Opinions lacking official CJLS recognition are tolerated but considered deviant. Furthermore, a range of opinions that disagree with each other may all be officially recognized by the CJLS.115
Finally, Reform Judaism views the tradition of Halacha as ". . . a relic of another time."116 Halacha holds an advisory role in Reform Judaism, which can be used to help address ethical questions, but lacks "binding authority."117 That said, the Central Conference of American Rabbis do issue responsa,118 but these opinions are not "authoritative" and "are in no way binding or obligatory upon those who ask the questions."119 Within Reform Judaism the autonomy of the laity is foremost, allowing the laity to "take into account all the factors that seem relevant to them and then choose accordingly."120
While other movements exist within Judaism, such as Reconstructionist, this Article focuses on the three largest branches, specifically highlighting the abortion jurisprudence under Orthodox and Conservative Judaism given that both consider Halacha to be binding. Reform Judaism understands it, instead, to consist of ethical recommendations, which may nonetheless meet the "sincerely held religious beliefs" requirement of First Amendment Free Exercise claims.121
B. Exodus 21: 22-23 & Fetal Legal Status
For all three branches, the inquiry on the permissibility of abortion begins with a source most Americans would not think relates to abortion, yet is the foundational text. This source text is Exodus 21: 22-25, which reads as follows:
22. When [two or more] parties fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according to the woman's husband demands and the judges determine.
23. But if other damage ensues, the penalty shall be life for life,
24. eye for eye, tooth for tooth, hand for hand, foot for foot,
25. burn for burn, wound for wound, bruise for bruise.122
In the circumstance described above, two men become engrossed in attacking each other and unintentionally collide into a pregnant woman.123 The Torah envisions two potential outcomes: First, the woman is attacked and miscarries but is otherwise uninjured. Second, she miscarries and dies, or otherwise is injured, such as by losing a tooth. In the first instance, where the fetus dies but the woman is otherwise uninjured, the attacker must pay the fine for the value of the fetus.
Furthermore, the text stating that the "one responsible shall be fined according to the woman's husband demands"124 indicates "that the fine was not levied automatically by societal demand[s], but was applied only in circumstances where the aggrieved husband called for it."125 Functionally, this means that a fine would only be imposed if the husband demanded it, and then the authorities would determine the fine.126 This indicates that "the fetus did not have a fixed value, and the husband would have been recompensed for his 'property loss' according to its assessed worth."127 Maimonides states in the Mishneh Torah that to assess the payment, the judges should evaluate "how much the woman would be worth before she gave birth, and how much she would be worth had she given birth."128 Therefore, the fine for the lost pregnancy is focused not on the lost life of the fetus, but rather, on the value of the woman had she carried the pregnancy to term.
Notably, viability does not factor into the Talmud discussion on the legal status of the fetus.129 The discussion in the Talmud "coalesces around the absence of the 'full person' status of a fetus rather than its lack of viability," as the Torah passage does not refer to the fetus as a nefesh (living, breathing being with legal rights) "or an adam (human) or an ish (man), and was therefore, without any legal standing as a 'person.'"130 Likewise, Torah scholars did not interpret other, seemingly applicable, biblical passages as applicable to the destruction of a fetus. Leviticus 24:17 states: "If any party kills any human being, that person shall be put to death."131 Likewise, Exodus 21:12 states: "One who fatally strikes another man shall be put to death."132 Torah scholars did not interpret either of these passages as applying to the destruction of a fetus.133 An unborn fetus does not have the same legal standing as "a person or nefesh and, therefore, its destruction does not incur the death penalty."134
Likewise, "the Midrash explicitly reiterates that feticide [whether accidental or intentional] is a crime that calls for a monetary penalty."135 While the Midrash proposes a "range of alternative possible explanations . . . for the difficulties raised by the Exodus verses, the rabbinic conclusions are essentially unequivocal . . . reject[ing] the suggestion that anybody but the pregnant woman could be the victim."136 Furthermore, the Talmud refers to the fetus in the first forty days after pregnancy as "mere water" (maya b'alma) and states that at this stage "it is not yet considered a living being."137 The stage of the fetus also impacts other legal rulings, such as whether the fetus needs to be buried and its status if buried to a convert mother.138 It also makes reference to the fetus as like "the thigh of the mother (ubar yerekh imo)."139
Jewish abortion jurisprudence starts its inquiry with the passage from Exodus, which then raises the following question: If miscarriage of a fetus caused by a third party does not rise to the same penalty as the loss of human life, is there a legal prohibition or consequence, beyond a monetary fine, to intentionally terminating a pregnancy?140 To answer this question, the legal status of the fetus must be understood. The Talmud provides additional insight into this.141
1. The Fetus as Pursuer
In Sanhedrin 72b, the Talmud likens the situation of using deadly force against a burglar breaking into one's home to the situation where a pregnant woman's life becomes endangered because of the fetus. 142 Here, the Sages of the Talmud teach that a "burglar is considered a pursuer, and he is subject to the same [H]ala[cha] as anyone who pursues another in order to kill him, namely, that anyone may kill the pursuer in order to rescue the one being pursued."143 The fetus is then described as "a pursuer who is endangering his mother's life."144 The term for "pursuer" is "rodef," and it is from this idea of the permissibility of killing a pursuer that an important aspect of Jewish abortion jurisprudence developed.
In this Talmudic discussion, "Rav Huna maintains that a pursuer, in general, does not require forewarning, and there is no difference with regard to this matter between an adult and a minor."145 "The essence of the matter is rescuing the pursued party from death . . . ."146 Rav Hisda then raises the issue of a woman in childbirth, stating:
If a woman was giving birth and her life was being endangered by the fetus, the life of the fetus may be sacrificed in order to save the mother . . . . If one is permitted to save the pursued party by killing the minor who is pursuing him, why is this so? The fetus is a pursuer who is endangering his mother's life.147
This claim comes from the Mishnah in Tractate Oholot 7:6, which gives a graphic description of what to do when a woman giving birth has her life endangered by a fetus. It gives the following instructions: "If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]."148 Scholars, such as Tosafot Yom Tov and Rashi, explain "that the fetus is not considered a nefesh until it has egressed into the air of the world and, therefore, one is permitted to destroy it to save the mother's life."149 Maimonides, on the other hand, considered the fetus a person but still required that the mother's life be prioritized based on the reasoning that the fetus is like the pursuer (rodef) threatening the life of the mother.150 Not only is it permitted to destroy the fetus in this circumstance, Jewish law requires that a mother prioritize her life and not allow herself to die to save the life of an in utero fetus.151
Even though the fetus is not "considered a living person (nefesh), [it] still has some status."152 Furthermore, although the Biblical and Talmudic sources do not state a prohibition against the termination of a pregnancy without cause, "most Rabbinic authorities prohibit abortion, except in certain situations, and [consider it] as a serious moral offense though it is not considered murder . . . ."153 One reason for the prohibition "is that the unborn fetus, although not a person, does have some status . . . . [T]he fetus may be considered a 'partial person.'"154 Another reason for the prohibition is the view that a woman terminating a pregnancy is considered as "intentionally wounding herself," which is prohibited without cause.155
Disagreements exist regarding the degree of prohibition without cause. For example, Rabbi Bacharach "permits abortion prior to 40 days of pregnancy" without cause, because during this time the fetus has no legal "status" and "is considered mere fluid."156 That said, this is not the majority position among Orthodox scholars. Rabbi Issue Yehuda Unterman, Chief Rabbi of Israel (1964-1972), prohibits termination without cause during the forty-day period because the fetus "is considered a potential (literally: questionable) human being which, by nature alone, without interference, will become an actual human being . . . [and, therefore] has enough status to prohibit its own destruction."157 Finally, scholars such as Immanuel Jakobvits, Chief Rabbi of the British Commonwealth (1967-1991), argued that because the Mishnah calls for abortion where a "mother's life is endangered," the direct "implication is that when the mother's life is not at stake, it would be prohibited to kill the unborn fetus."158
Debates also exist as to the permissibility of abortion in contexts such as extra-marital affairs and rape.159 This debate hinges on whether abortion in these contexts qualifies as a "great need."160 Some scholars argue that because the child, if born, would be a mamzer (child born outside of wedlock), then this qualifies as a great need.161 This is because the designation as mamzer carries intergenerational legal consequence.162 A mamzer can only marry another mamzer or a convert, and their children would carry the same designation into perpetuity, "even after 10 generations."163 Contemporarily this means that within the state of Israel, "a mamzer cannot establish a legally-recognized family."164 Based on the legal difficulties of being a mamzer, some rabbis have justified abortion for pregnancies that would result in a mamzer child, while others have held that this does not rise to the level of great need.165
Additionally, there is debate about whether abortion is permitted where maternal health is in danger. Some scholars "require the mother's life to be in . . . danger, however remote [such] danger, whereas other [authorities] permit abortion for a threat to the mother's health[,]" including mental health.166 For example, the former Sephardi Chief Rabbi of Israel, Rabbi Ovadiah Yosef (1920-2013) "ruled in favor of abortion for the sake of maternal health, but limited it to the first three months of pregnancy."167 He arrived at the three-month, or ninety-day, timeframe by "quoting the Talmud proposition that a fetus is 'recognizable' at three months."168 Based on this, Rabbi Yosef determined that up until this point "there is [likely] no Toriatic prohibition on abortion . . . [and, therefore] if the prohibition is rabbinic, it certainly may be set aside in case of sickness [such as mental health], even when no immediate danger is involved."169
After the three-month period, an abortion would be permissible only in the event of a threat to the mother's life.
C. The Rabbi Feinstein and Rabbi Waldenberg Debate
Likewise, a modern debate in Orthodox Judaism has arisen regarding termination of pregnancies for fetal abnormalities, relying on some of the legal rationale described above. The two figures central to this debate are Rabbi Moshe Feinstein (1895-1986) (former President of the Orthodox Union of Rabbis), and Rabbi Eliezer Waldenberg (1915-2006) (former Justice of the Rabbinic Supreme Court and recognized Halachic authority of medical ethics).170 Although this debate and the rabbis' opinions originate over forty years ago, they remain the authoritative opinions.171 Additionally, the perspectives put forth in this debate build upon the precedent of earlier Halachic decisions on abortion regarding a variety of circumstances, including adultery, rape, and endangering the life of an existing child.
The debate originated in 1975 when Rabbi Waldenberg issued a responsum that in cases of severe fetal abnormalities, such as Tay- Sachs disease, an abortion may be permissible in pregnancy.172 He ruled the following:
Hence it appears that if there is a grounded fear that the child will be born with a defect or with restrictions, one ought to encourage [a ruling] to permit an abortion prior to the completion of forty days of pregnancy, and even to extend this until three months, [provided that] fetal movement is not yet [detected].173
In response, Rabbi Feinstein directly refuted Rabbi Waldenberg's legal reasoning, stating that Waldenberg "had misunderstood several poskim and criticizing his allegedly non-Hala[chic] time span of 'seven months.'"174 Rabbi Feinstein concluded that "abortion is murder, which is strictly forbidden by scriptures ('de-oraita'), no matter whether the embryo/fetus is legitimate or illegitimate (mamser) [sic], healthy or not."175 His focus is almost exclusively on the fetus, even though the fetus may be non-viable or live a very short and painful life. He states:
And since there is the prohibition to murder the embryo/fetus, it is easy [to decide this case]: Although we explicitly know that it will be a child who will live only for a short period of time and will be ill all the time and will never have consciousness and [the parents] will have to take much trouble with him, more [trouble] than will be possible for them [to bear] and even if you can anticipate that his mother will get ill, too - you can't allow murdering the embryo/fetus, because the prohibition to murder applies to a healthy and complete embryo/fetus as well as to this embryo/fetus.176
Although Feinstein agrees that abortion may be performed to protect the life of the mother, he "minimize[s] the number of situations which necessitate abortion in order to protect the life of the embryo/fetus . . . [and] calls an embryo who is forty days old 'nefesh ketzat' ('a little bit nefesh,') thereby granting the unborn as much a right to live as possible."177 While he concedes that the mother's life should be prioritized if her life is threatened, he states that "it will be forbidden to kill the embryo/fetus until the evaluation of the physicians that the mother will die is almost substantiated, nearly certain."178 By granting the embryo/fetus the legal standing of "a little bit nefesh" he understands the fetus as holding certain legal protections that, while still inferior to the mother, are greater than Waldenberg grants.
Waldenberg considers the prohibition of abortion as "derabbanan" and that abortion has "no element of actual murder," 179 which allows him greater flexibility in his ruling.180 According to his analysis, the fetus does not hold the legal standing of nefesh until such time as the greater part of the fetus has been born, and therefore, a woman "who might be in a painful and/or delicate position due to her pregnancy" may have a permissible abortion.18
He also based his opinion on the rationale of Rabbi Judea Ayyash in his work, Beth Yehuda, in which he extended permission to terminate a pregnancy to a pregnant woman who is breastfeeding a child (whether her own child or as a wet-nurse) who fears "the evil eye or danger to the newborn suckling from her."182 Ayyash states: "Because the prohibition [of abortion] is only 'de-rabbanan:' If a woman is getting pregnant during the days she is breast-feeding, she is allowed to do whatever she can in order to abort because you have to be concerned about the newborn child [who is being breastfed]."183 His rationale was also followed by other rabbis in the event of a breastfeeding mother who is concerned that the pregnancy would impact her ability to breastfeed existing children.184 However, this opinion was moderated, perhaps because of developments in infant formula, by encouraging the mother to try to find alternative means to nurse the child and "discouraging abortion if alternatives can be found."185
Waldenburg also relies on the rulings of earlier scholars on the question of whether a woman who committed adultery or a woman who has been raped is permitted to terminate any resulting pregnancy.186 He refers to these earlier Halachic rulings and states:
But it is reasonable to say that the main reason to permit a married woman who committed adultery [to abort an embryo/fetus] is what is called the 'necessity' of his mother. This means sparing her the embarrassment and shame she would suffer . . . . And it is simple and understandable that, if we will allow [an abortion] on this basis, one also has to allow [abortion] when the married woman was raped.187
Waldenburg in doing so focuses on the distress of the woman and "clearly focuses on the pregnant woman . . . tak[ing] sides with her, trying to decide in her best interest."188 He focuses on the future situation these women would experience if they were to carry their pregnancies to term: "[T]hese illegitimate children would 'vividly stand against them,' reminding them of the adultery or of the rape, respectively."189
Waldenberg is not alone in his opinion. Other scholars, such as Rabbi Shall Yisraeli, also allow for the abortion of fetuses with fetal abnormalities.190 He argues that "Sanhedrin 84b . . . provides permission for wounding that is performed for the purpose of healing, and the rabbis connected this permission to the Torah's verse, 'you shall love your neighbor as yourself' (Leviticus 19:18)."191 Essentially, because the wounding or destruction described in Sanhedrin 84b "has a constructive aim, so too in this type of abortion there is a constructive aim."192
However, Feinstein is not alone in his opinion prohibiting abortion. For instance, Rabbi Issar Yehuda Unterman, former Chief Rabbi of Israel (1886-1965), was one of the first to address a closely related question. Unterman issued an opinion that it was impermissible for a woman who had become sick with German measles to terminate her pregnancy, even prior to the fortieth day, out of "fear that her baby would be born with substantial physical or mental deficiencies."193 He narrowly interprets the permission to terminate a pregnancy to exist only when there is a threat to the mother's life, based on the rodef (pursuer) reasoning.194 He understands the legal reasoning of the rodef rule as follows: "[W]hen a fetus is behaving like a rodef, the law states that it is not 'permitted' to kill it-because there is no intentional pursuit-but neither is there a duty to save it."195 Rather, a duty does exist to save the life of the mother, and as no reciprocal duty exists "to save the pursuing fetus, if the only way of saving the mother is by sacrificing the fetus, then this duty must be fulfilled for one should 'have no pity.'"196
That said, Rabbi Waldenberg built his opinion on the opinion of Chief Sephardic Rabbi of Israel, Benzion Uziel (1880-1953), who addressed the permissibility of an abortion for a woman who was at risk to become deaf if she continued the pregnancy.197 In this responsum Rabbi Waldenberg wrote:
In any event, it is clear that they [the sages] did not permit the killing of fetuses except when necessary, even if the need is a superficial one, such as the mother's disgrace. But if it is unnecessary, it is certainly prohibited, on the basis of destruction and preventing the possibility of life for a Jewish soul.198
In doing so, he included in the legal requirement of a "necessity" or "excuse" for abortion that the underlying need may be "superficial."199 This highlights that although "Jewish law largely protects pregnancy in the absence of a mother-fetus conflict," it does not generally do so based on fetal rights, but rather on other grounds such as the "do not destroy" principle.200
Waldenberg understands the "do not destroy" principle to include the destruction of the mother's mental health. He writes:
Could there be a bigger need, sadness, and pain than that which we talked about [i.e. a child with Tay-Sachs disease] that such a creature would cause its mother? That says 'suffering and pain' and its death is certain within a few years and the eyes of the parents see [this] in despair because they are not able to save it? . . . And also the amount of suffering and pain of the newborn itself who . . . has every disability. Therefore, you have to allow abortion according to [H]ala[cha] because of 'great necessity' and because of pain and suffering; this seems to be the most classic case you have [in order to] allow [abortion]. And it doesn't matter in which way the pain and suffering are expressed/manifested, physical or psychological. And psychological suffering and pain are many times bigger and [more] painful than physical suffering. . . .201
This ruling highlights the Halachic approach that on the one hand does not consider the autonomy of the individual in the decision-making process, but on the other hand "is balanced, at least somewhat, by its sensitivity to individuals' experience of suffering, even if that feeling appears irrational or even bizarre, such as a woman's fear of a cesarean section when she has no obstetrical alternative."202
Additionally, within Jewish law there is the principle of leniency, known as koha dehetera 'adif, meaning that "the power of being lenient is preferable."203 This principle means not only that "it is recommendable for a Rabbi to be lenient, but also that a Rabbi that is lenient is preferred over other Rabbis."204 Likewise, "according to Rabbi Ouziel, rulings of a Jewish judge or rabbi should attempt to act with mercy and rule beyond the strict letter of the law . . . . [They] should find out, in each case, if the implementation of the merciful outlook is possible."205
That disagreement exists in Orthodox Jewish abortion jurisprudence is not likely to change soon.206 Jewish law is not monolithic, and "[n]otwithstanding the two major consensus [sic] that have developed and the body of precedent that may be accumulating, profound differences in ethical orientation, such as those expressed by Waldenberg and Feinstein, will not soon disappear."207 This diversity also plays an important role in practical matters. For instance, Rabbi Shalom Zalman Auerbach (1910-1995) "believed that active abortion is similar to murder and should be prohibited."208 Yet, "when women approached him with
a request for permission . . . to abort fetuses with Down syndrome, he would refer these women to Rabbi Waldenberg[,] who was much more permissive in such matters."209 So, while a Rabbi may hold a different opinion of the permissibility of abortion, they still recognize the legitimacy of a differing opinion. As Rabbi Michael Broyde has noted: "Most of us no longer live in a small . . . village . . . where we must ask the local rabbi questions . . . . [People] will go looking for the right posek . . . to ask their questions to."210
D. Conservative Judaism, Reform Judaism, & Abortion
Rabbi Waldenberg's opinions on abortion have also lefta lasting impact on the abortion jurisprudence of Conversative Judaism. In the Rabbinical Assembly's "Resolution on Right to Legal and Accessible Abortion in the United States," it cites a large portion from Waldenberg's opinion above regarding mental health.211 Additionally, the Committee on Jewish Law and Standards issued a statement on abortion that "[n]either viability nor a woman's right to choose is the basis of Jewish law on abortion, although they play a role only indirectly; what matters in Jewish law is the woman's life and health, both physical and mental."212 The Committee highlights that "even when abortion was greatly restricted, if not completely forbidden, in the U.S. (and the Western world), rabbis generally upheld a lenient attitude toward abortion when the mother's life or physical or mental health were at stake."213 Furthermore, it notes that it is following tradition within a "multicultural society, where the principles of different religions must be respected, and those who are pregnant and those who provide healing must have the right to follow their own conscience and religious traditions."214
Based on this reasoning, and with reference to Leviticus 24:17, Exodus 21:12 (each noted above in section II.B), Mishnah Oholot 7:6 (noted above in section II.C), and Waldenberg's Response, the Rabbinical Assembly has passed multiple resolutions supporting "reproductive freedom, providing access to information concerning reproductive choice, and limiting the impact of legislation such as the 'Unborn Victims of Violence Act.'"215 In its resolutions, it urges its members and the President, Congress, and state legislatures to do the following:
[S]upport full access for all women to the entire spectrum of reproductive healthcare; to oppose all efforts by governmental, private entities or individuals to limit such access or to require unnecessary procedures; and to oppose 'personhood' legislation on the federal and state levels that would confer legal rights under the law to a fetus or an embryo.216
The Rabbinical Assembly says that it bases this resolution on the "understanding of relevant biblical and rabbinic sources, which compel us to cherish the sanctity of life, including the potential of life during pregnancy, and does not indicate that personhood and human rights begin with conception, but rather with birth as indicated by Exodus 21:22-23."217 In its most recent statement, the Rabbinical Assembly quoted Rabbi Aaron Brusso on the reasoning for advocating for legal, accessible abortion:
Despite the impression some of us may have, it is critical to know that these are not careless decisions . . . These decisions involve: Heartbreak. Tears. Lost Dreams. We balance the sacredness of life with the fact that life emerges gradually within the life of another person whose life is also sacred. Most importantly, we trust. We trust women with the freedom to take moral responsibility over their own lives.218
This statement, like Rabbi Waldenberg's responsum, focuses on the suffering a pregnant woman may experience and grounds the permissibility of abortion on alleviating that suffering. Unlike the Orthodox response, the Conservative response, while acknowledging that a woman's right to choose is not part of the Jewish legal tradition, advocates for a much greater degree of women's autonomy in making decisions to terminate a pregnancy.
The Reform movement takes this a step forward with language much more akin to a woman's right to choose.219 This is likely due to significant differences with Reform Judaism in its relationship to Halacha as non-binding, as compared to Orthodox Judaism. In short, "Reform Judaism holds that pregnant individuals should have complete responsibility and autonomy over whether to terminate a pregnancy."220 Although Reform Judaism views Jewish law as non-binding, Reform Jews may still have sincerely held religious beliefs about terminating a pregnancy. In multiple resolutions, the Union for Reform Judaism has stated: "[T]he individual family or woman must weigh the tradition as she struggles to formulate her own religious and moral criteria to reach her own personal decision . . . We oppose all constitutional amendments that would abridge or circumscribe this right [to choose]."221
Fundamentally, the position of Reform Judaism is "grounded in the core belief that each person should have agency and autonomy over their own bodies."222 This is based on the "Jewish value of kavod ha'briyot, respect for individual dignity."223
The prioritization of maternal well-being over the potential life of the fetus is found across the Orthodox, Conservative, and Reform approaches. Based on semantic and textual interpretations, scholars determined that a fetus does not have the full legal status of nefesh. Additionally, applying the principle of the permissibility to kill a pursuer (rodef), it is required to terminate a pregnancy that threatens the life of the mother. Within this jurisprudence is diversity of opinion that allows for the adoption of an authoritative opinion, dependent on the individual circumstance of the pregnant woman. Although opinions cannot be adopted between Orthodox, Conservative, and Reform jurisprudence, common features of each abortion jurisprudence emerge, such as prioritizing the life of the mother and relying on Rabbi Waldenberg's opinion.
III. ISLAMIC ABORTION JURISPRUDENCE
A. Islamic Law Primer
Like Jewish law, a remarkable diversity of opinion on the permissibility of abortion exists within Islamic law. Despite popular media's attempt of portraying anti-abortion as "Shariah law," the reality is that Islamic law reflects a plurality of opinions on the permissibility of abortion. In fact, if anything can be said it is that "on the whole, abortion was religiously tolerated" by classical scholars.224 The pluralism found in Islamic law on abortion is "an indelible feature of the tradition itself."225 Within Islamic law is the acknowledged paradox that "good and evil are known through revelation, while recognizing that differences concerning moral judgments are part of the moral vision of revelation itself."226
1. Diversity of Opinion
As a result of the permissibility of diversity of opinion, historical Muslim societies "tolerated differences of opinion, and . . . people living in these societies had recourse to various scholars from multiple legal schools."227 This recourse included recourse to judges from the different legal schools, such that the laity could forum shop for the legal opinion that most closely aligned with their own moral understanding.228
The tolerance and respect for diversity of opinion in Islamic law is no happy accident.229 Rather, an inquisition (mihna) from 833 to 847 CE occurred concurrently with the early growth of the legal schools.230 The mihna was the defining moment in the development of Islamic law regarding the historical separation of powers between state authorities and religious legal authorities.231 The caliph at the time (Abbasid caliph al-Ma'mun) attempted to impose a single, authoritative interpretation of Islam. The religious scholars at the time strongly resisted this imposition, withstanding imprisonment and torture in order to protect their differing interpretations of scripture.232
The importance of the failure of the inquisition on the development of Islamic law cannot be overstated.233 The lasting impact of its failure has been that "no single school of law or theology has ever been able to dominate Islamic thought . . . [leading] to a highly decentralized system, with many different influences."234 This early resistance to governmental imposition of religious interpretation effectively led to a "separation of powers" in Muslim-majority lands for most of Islamic history.235 The separation was such that "Muslim religious legal scholars were not the rulers of Muslim governments, and Muslim rulers did not create religious law."236
As a result, throughout most of Islamic history, Islamic legal scholars "were able to establish themselves as the exclusive interpreters and articulators of the Divine law," separate from the police power of the government.237 This helped contribute to the fostering of diversity of opinion. Without a central state authority, Muslim jurists were able to accommodate a range of legal opinions of which the laity could avail themselves. This was true not just for seemingly trivial topics, such as the correct method for washing for prayer, but also for legal matters of life and death, such as abortion. The range of opinion on the permissibility of terminating a pregnancy under Islamic law is striking. Prior to 120 days after implantation, "there is unanimity neither among the different schools of law nor within any one individual school."238 It is only 120 days after implantation that the scholars reach a degree of unanimity.
This diversity of opinion is not simply theoretically useful. Rather, Islamic legal schools not only acknowledge the legitimacy of differences of opinion but also recognize the validity of differing opinions within their own schools and within other schools.239 As Cambridge Muslim College Professor Salman Yunus has noted: "Muslims once lived in an age ambiguity where opinions were confidently held but difference embraced."240 The legal system's embracing of difference facilitates the ability of Muslims educated on the differences to choose amongst authoritative legal opinion that best aligns with their own legal and moral understanding, even one outside of the school they generally follow.241
2. Islamic Schools of Jurisprudence242
A discussion of Islamic law requires describing "Islamic law" and its relation to "Sharia." "Sharia law" is used in a number of different contexts, including reference to laws Muslims worldwide follow.243 However, Islamic jurisprudence, philosophy, and theology often differentiate between the term "Sharia" and "fiqh." Sharia encompasses the actual divine will.244 This differentiation stems from the understanding of Muslim scholars that while they could endeavor to interpret and apply the Sharia, ultimately only God would truly know if they had done so correctly.245 They acknowledge that the process of understanding divine law is ultimately a human endeavor, and their terminology reflects that understanding.246
In short, the term "fiqh" is the law resulting from the scholars' methodological approach to interpreting God's divine will.247 From a linguistics perspective, the foundational root of "fiqh" connotates comprehension and understanding. The foundational root of "Sharia," on the other hand, connotates a broad path to water; that is, a means of accessing knowledge.248 Given these linguistic differences, "fiqh" will be translated in this Article as Islamic law or jurisprudence. "Sharia" will be reserved to either indicate the divine will or refer to its use in popular media.
The distinction between the Sharia and fiqh is an important one. As one American Imam put it: "If no distinction is drawn between shari'a and fiqh, change in the law becomes both impermissible and unthinkable."249 When fiqh is properly understood "as a human intellectual endeavor, guided by divine sources, there is plenty of potential for development and change."250 Some scholars assert that "Islamic jurisprudence is explicitly designed to allow for constant adaptation as the consequence of diaspora."251 In short, "Islam is an intellectual tradition that allows people to find themselves in a new social space."252
Today, Islamic law is primarily practiced within five main schools of thought: four Sunni and one Shia.253 The Sunni schools are Maliki, Shafi'i, Hanafi, and Hanbali, while the Jafari school is the dominant Shia school.254 Each school has its own distinct legal methodology, body of laws, and extensive literature developed by dedicated scholars and their students.255 Additionally, within each school, there are varying opinions and interpretations among past and present scholars, which provides for flexibility in applying Islamic law.
Islamic law, much like Jewish law, is pluralistic and takes into account the diverse realities of different times and places.256 This means that jurists must be well-versed in local customs and traditions when making legal rulings.257 Throughout history, jurists interpreted Islamic law to address the ongoing changes and challenges Muslims experienced.258 The pluralistic nature of Islamic law allows Sharia to be practical for everyday use, while also accommodating individual choice amongst legal authorities.259
As described by Professor Asifa Quraishi-Landes, the Islamic legal schools have applied the "[S]haria (Divine Law) as a recipe that is meant to be made (with all the natural diversity that results from that process), not one frozen in pristine condition decorating a kitchen bookshelf."260 The discussion that follows elaborates on the differences between abortion jurisprudence within Sunni schools with a focus on the Hanafiand Maliki schools, which are respectively the most and least permissive.
Like Jewish law, Islamic law holds "[r]espect for human life [a]s basic and generally determinative."261 That said, Islamic law recognizes that this respect must be balanced with other considerations.262 Quranic verses that at first glance seem like they would be determinative, such as, "Do not kill your children for fear of want," in fact raise questions that remain debated. For instance, at what point does a fetus become a human life with full legal rights, and is a fetus "even to be considered a 'person' (nafs) before God sends down the soul?"263
As will be discussed more extensively below, Islamic jurists balanced a number of different considerations in determining the degree of protection afforded an unborn fetus.264 In particular, the timing and specific circumstances causing the termination factor into the determination of legal impact. Notably missing from the Islamic legal discourse on abortion is a framing of women's right to choose.265 That said, the Islamic legal discourse clearly prioritizes the health and well-being of the pregnant woman over the fetus. Marion Katz has described the "Islamic ethics of life" as combining "a compassionate awareness of the unique features inherent to every individual case with a stance of awe at God's creative power."266
B. Fetal Legal Status
Generally, the status of an unborn fetus under Islamic law falls short of full human life in two categories, both related to inheritance law: (1) the fetus as an inheritor and (2) potential inheritors of the fetus.267 While the legal status of a fetus shares some of the "legal protections and powers associated with human life," the legal status of a fetus is distinct.268 This category reflects the understanding of a fetus as potential life. First, the legal status of a fetus impacts inheritance rights of Islamic law. Islamic jurists envisioned the fetus as a potential life with inheritance rights and duties that could inure from implantation. Namely, in one capacity an unborn child maintains full inheritance rights associated with full legal personhood, provided the fetus is born alive.269 If a parent of a fetus dies before the child is born, the inheritance will attach to that child, and they will inherit upon their birth.270 Likewise, Islamic law considers the legal status of a fetus in terms of the potential inheritors from the fetus.271
Regarding the potential inheritors of a fetus, Islamic law grants the fetus a legal status less than a full human life. Islamic law envisions the fetus as a potential life that would have had inheritors, had the fetus been born. Specifically, in the context of manslaughter or murder, Islamic law requires that the perpetrator pay a fine to the deceased's inheritors. However, in the instances of an act that results in pregnancy loss, Islamic law does not attach the full inheritance rights of human life to the fetus.
1. Ghurra (1/20 of Murder)
Generally, an unlawful killing under Islamic law requires the payment of the diya, or blood money, to the victim's inheritors (similar to a civil wrongful death claim under American law). Instead of requiring the diya for loss of fetal life, Islamic law requires the payment of the ghurra to the would-be inheritors. The ghurra amounts to 1/20 of the diya (what would be paid in the killing of a full human life), and is paid to the inheritors of the fetus, except the one who caused the injury, if they would have otherwise been an inheritor.272 Interestingly, most scholars hold that the ghurra "belongs to the fetus, and thus is inherited by its kin"273 but also recognize the fetus as part of the pregnant woman's body.
In some ways, the ghurra represents the legally recognized liminal existence of the fetus, that is, its status as potential life. This liminality is perhaps best captured by the sixteenth-century Hanafijurist Qadi Zadeh who writes in
introducing the discussion of the rules relating to the fetus in his commentary on al-Marghinani's Hidaya, 'Having mentioned the law of torts as it related to those of human in all respects, he begins the exposition of the law as it related to those who are human in one respect, but not in another, i.e. to the fetus.'274
The ghurra is a substantial enough sum of money that an injury or loss is cognizable, but it falls significantly short of the legal status of full human life.
The ghurra also represents a majority legal understanding that is more communally based, that is, the full list of would-be inheritors receive the ghurra, not just the parents. That said, early scholars discussed the difficulty of recognizing the fetus as a separate entity from the pregnant woman's body. These scholars identified the ghurra as in some ways similar to the diya paid for the death of a human, and in other ways more similar to the "compensation paid for the loss of body parts, such as fingers and teeth."275 Based on the reasoning that the ghurra was more like compensation for the loss of a body part, some early scholars ruled that in fact the ghurra was not the right of all inheritors but the exclusive property of the pregnant woman as compensation for her physical injury.276
Furthermore, there are no other criminal or civil legal implications of the lost potential life beyond the ghurra. Islamic law does categorize any act that results in fetal death, including abortion, as criminal. However, the legal category of criminality carries different and more limited punishments than found in the American legal system. Although Islamic law discusses abortion within the context of criminal law, Islamic abortion legal rulings more closely mirror American tort law,277 as in the description of the ghurra as akin to compensation for the loss of other body parts.
Islamic law's approach to abortion features many similarities with Jewish law. Like Jewish jurisprudence, Islamic abortion jurisprudence originates out of the hypothetical of a violent attack on a pregnant woman that results in the loss of fetal life.278 In fact, there is "little qualitative difference between termination of a pregnancy by the considered act of a pregnant woman and its violent termination by someone unrelated to the child."279 The consequences of both actions are the same. If a loss of fetal life occurs that does not fall under a recognized exception, the ghurra must be paid to the would-be inheritors.280
Regarding the violent attack of a pregnant woman that results in the loss of fetal life, the Maliki and Hanafischools envision three different scenarios:
1. "Someone hits a pregnant woman's belly, resulting in the premature delivery of a child who shows signs of life but dies shortly thereafter.
2. "Someone hits a pregnant woman's belly, resulting in the premature delivery of a dead embryo.
3. "Someone hits a pregnant woman's belly, resulting in her death and leaving an embryo dead in her uterus."281
In the first instance, the attacker must pay the full diya, blood money, that would be paid for an accidental killing of a human being, that is, a full human life.282 However, jurists debated what constituted "signs of life."283 The Malikis tended to be stricter, "accepting only loud screaming (istihlal), whereas others considered bodily movement or sneezing as a sign of life."284 Maliki and Hanafijurists determined that only the first instance would qualify for the full diya, instead of the ghurra because in that instance "the embryo has become a human being that lives outside of the mother's womb, and thus must be categorized like any other live human being."285
This ruling is captured in the classical Hanafischolar Shaybani's (749-189 AH/805 CE) discussion of an induced miscarriage:
If a man beats a woman's stomach and she expels a dead embryo, a ghurra of a male or female slave is due. This equals 500 dinars. It has reached us from the Messenger of God that he did this (annahu ja'ala dhālika) and that [the fine] is due on the perpetrator's bloodmoney group ('āqila) within a year. If the embryo leaves [the mother's body] alive and dies afterwards, the full diya is due on the 'āqila [fetus], and the perpetrator must perform kaffāra [fasting or freeing a slave].286
In the third instance, the attacker pays the diya for the life of the pregnant woman but does not pay a penalty for the death of the fetus.287 This position derives from some scholars' view that the fetus is not an independent entity, separate from the woman's body. According to the classical Maliki scholar Sahnun, in this instance the payment of the diya covers the fetus, as it is not an independent entity.288 Based on the analysis of fetal loss of life due to an attacker, the question this raises is whether fetal protections arise based on any other grounds.
While the loss of fetal life due to an attacker in some ways seems like a distinct category from a pregnant woman terminating her pregnancy, classical scholars understood these as overlapping categories with the pregnant woman acting as the attacker. If the woman takes action to terminate the pregnancy without cause, "jurists generally assume that the ghurra is to be paid, whether to the fetus's remaining heirs or to the father of the child."289 That said, some Hanafischolars hold the opinion that provided the pregnant woman terminates without cause prior to 120 days, the timing of ensoulment, the termination is mubah (a legal category denoting neutrality-neither commendable nor prohibited).290
It should be noted that the legal consequence of a lost pregnancy extends far beyond questions of liability for induced miscarriage. The end of a woman's pregnancy could determine the end of her waiting period to remarry in the event of divorce. Furthermore, it could have particularly significant legal consequence for an enslaved woman who upon the loss of the pregnancy would still have her legal status changed to umm walad due to the fact of her pregnancy, which effectively changed her status to a wife, such that she could never be sold and would gain her freedom upon the death of her owner.291
Jurists also recognized that in some instances an embryo would not continue to grow but found it impossible to distinguish between an embryo that would have continued to grow had it not been expelled from the womb and that which would not have grown. For instance, the Hanafischolar al-Jassas (305-370 AH/917- 981 CE-) discusses this difficulty in his discussion of the 'alaqa (early-stage embryo): "Nobody knows the difference between an 'alaqa [embryo] that becomes a child and an 'alaqa that does not become a child . . . ."292 Jassas's observation remains true today. Despite advances in medical technology, it is impossible to say whether a woman would continue a pregnancy to term. In fact, advances in medical technology have made miscarriage a more likely scenario for a woman when she discovers she is pregnant. In the past, women were only likely to become aware of their pregnancy with their missed menstrual cycle. However, advances in at-home pregnancy tests now allow for women to learn of a pregnancy as early as six days before a woman misses her period.293 At this stage, modern medical science considers the pregnancy a "chemical pregnancy," as the only indicator of pregnancy is a change in the measurement of hormones. As many as 50-75% of pregnancies will end at this stage.294 Often, these miscarriages are indicative of genetic issues incompatible with life.295
In some regards, Islamic law recognizes the particular potentiality of these early stages of pregnancy. Historically and today, the age of the fetus plays a determinative role in the permissibility of abortion. Importantly, unlike American medical and legal establishments, Islamic law does not date the pregnancy from the date of the woman's last menstrual cycle. Rather, the dating of a pregnancy under Islamic law begins with implantation of the embryo with legal implications at 40 days and 120 days after implantation.296 This is based on the Quranic description, which describes the "mixed drop" as securely positioned in the uterus.297 Based on this verse, Islamic scholars determined that a key moment in human development was not fertilization per se, but rather the implantation into the woman's uterine lining. This interpretation has an important impact in the development of jurisprudence in other related areas, such as assisted reproductive technologies.
While the legal consequences of the ghurra apply in the context of the loss of fetal life due to an attacker or the intentional termination of the pregnancy by the pregnant woman without cause, Islamic jurists discuss circumstances that permit termination of a pregnancy. Similar to other legal systems, the timing of the termination plays a central role in permissibility.298 Unlike Roe, which relied on a timeline based on viability,299 Islamic jurists looked to the Quran to determine the importance of fetal age.
Classical Islamic jurists often utilized Hellenistic jurisprudence and medical knowledge as sources in developing the law.300 As a result, some scholars have focused on the "strong influences from the Greeks of antiquity" to understand Islamic abortion jurisprudence.301 However, an examination of the earliest Islamic legal opinions finds that "the jurists themselves based their discussion primarily on the Qur'an and statements of legal authorities."302 Furthermore, the influence on medical literature only emerged three hundred years after the Prophet Muhammad.303 Therefore, while Hellenistic medical literature certainly influenced later phases of Islamic abortion jurisprudence, the fundamental legal rulings were grounded in the Quran and hadith.304
2. Quranic and Hadith Source Texts
The Quran is the primary source for all Islamic abortion jurisprudence. Although the Quran addresses and strictly prohibits infanticide in several verses, these verses are not the primary basis for legal interpretation of the prohibition and permissibility of abortion.305 Although the Quran repeatedly prohibits infanticide, "classical exegetes did not generally understand [this prohibition] to refer to abortion."306 Rather, they understood these passages as a clear condemnation of the pre-Islamic practice of "pagan Arabs to bury their daughters alive for fear of poverty or disgrace . . . [and] interpreted the interdiction on killing children, accordingly, as referencing to the already born."307
Instead, the Quranic passage scholars relied on is 23:12-14, which describes the stages of fetal development. This passage states:
We [i.e. God] first created the human being from an essence of clay, then placed it, a drop of fluid (nufta) in a secure enclosure. The drop of fluid We made a clot of blood ('alaqa), and the small a lump of flesh (mudgha). This We fashion into bones, then clothes the bones with flesh, thus bringing forth another creation. Bless be God, the noblest of creators.308
Scholars interpreted this Quranic passage in conjunction with hadith (recorded sayings and actions of the Prophet Muhammad), which further elaborate on the time periods of each stage of development.309 Jurists most heavily relied on this hadith of the Prophet Muhammad: "Each of you is gathered in his mother's womb for forty days; then [it is] a clot of blood ('alaqa) for the same period[;]" then it is a clump of flesh (mudgha) for the same period.310 "Then God sends an angel who is commanded regarding four things: [its occupation,], (sic) [its] livelihood, (rizqihi), [its] span of life, and [its] felicity or damnation [in the afterlife]. Then the spirit is breathed into it . . . ."311
This hadith is further supported by similar hadiths indicating a transitional period at around forty days, such as the following: "When the drop of (semen)" has spent forty-two days in the womb, God sends an angel to it and the angel forms it and creates its hearing, sight, skin, flesh and bones."312
Based on the timeline outlined in the first hadith of three consecutive forty-day periods, Islamic scholars agreed that ensoulment ("the spirit is breathed into it") occurs at 120 days.313 Although some contemporary scholars claim that abortion is entirely impermissible after ensoulment, the reality is there is disagreement on the permissibility of abortion and possibility of exceptions after the 120-day period.314 Specifically, most classical scholars generally prohibited abortion after 120 days but made clear exceptions in the event of a threat to the life and health of the pregnant woman. Additionally, contemporary scholars are debating exceptions after 120 days in the event of severe fetal anomalies.
Ensoulment only became an issue of debate in the "late 2nd/8th or early 3rd/9th century."315 The debate likely had neo-platonic, rather than Quranic origins, although the implications of Quranic verses were debated.316 For instance, Tabari (224-310 AH/839-923 CE), the famous Quranic exegete, discusses possible interpretations of the Quranic verse 23:14, which reads, "[T]hen we made it [the fetus] another creation (asnha'nahu khalq akhar)."317 While modern scholars typically equate this verse with ensoulment, Tabari discusses three possible interpretations: "ensoulment, birth, and coming of age. In his view, the first interpretation is the correct one."318 In fact, the idea of "an eternal soul as a separate entity distinct from the human body, which had to be infused with the soul, only became widespread after the late 2nd/8th or early 3rd/9th century."319
Previous interpretations had used bodily shape, rather than ensoulment, to define personhood. For instance, the word shakhs, "which for most of Islamic history meant 'person,' in pre-Islamic and early Islamic usage signified a silhouette, that is, the body of a person."320 Likewise, early Muslim exegetes centered their discussion of the uniqueness of humanity on the human form. These early Muslim exegetes determined that "what sets humans apart is the fact that they eat with both hands."321 Later exegetes began to discuss the human soul as the distinctive feature of humanity.322 This focus on the human form directly impacted the debate on induced miscarriage. For example, the Hanafischolar al- Jassas (305-370 AH/917-981 AD) states: "If the matter that emerges from the uterus (siqt) manifests nothing of human form, it is not a child (walad), it has the same position as the 'alaqa and nutfa."323
This is not to say that early Muslim scholars were not familiar with the concept of ensoulment; rather, ensoulment was not the distinguishing feature of their discussion of induced miscarriage. The human form was determinative of legal impact.
Although earlier scholars were familiar with the prophetic narration on ensoulment, ensoulment did not factor as a legal question. The prophetic narration on ensoulment, however, clearly impacted later scholars. The prophetic narrative reads:
The Messenger of God (may God bless him and grant him peace) told us: The creation of anyone of you (inna khalq ahadikum) is gathered (yujma') in his mother's abdomen for forty days as a nutfa, then he is an 'alaqa just like that, then he is a mudgha just like that, then the angel is sent to him and he orders (amara) four words: he [viz., the angel] fixes in writing [1] his living, [2] the hour of his death, [3] his deeds, [4] then he writes whether he will be unhappy or happy, then he blows the soul (rūh) into him.324
While early scholars like Jassas did not reference this hadith in discussion on induced miscarriage, this hadith heavily shaped the debate on induced miscarriage from the 4th/10th century to modern times.325 Additionally, although this hadith was familiar to early Muslim scholars, those scholars were predominately "in Iraq, the nucleus of what would later become the Hanafis."326 It seems likely that the hadith did not achieve wide usage with Maliki scholars until much later, which partially explains the later adoption of ensoulment as a distinguishing aspect of legal import.327
Early scholars integrated this hadith into the pre-existing legal framework that prioritized human shape as the distinguishing feature. In fact, the primary importance of the hadith to early scholars was to derive a timeline of embryonic development, such that "the mudgha-stage ends after 120 days of pregnancy and only then do the evidentiary standards demanding human shape apply."328 Later, scholars transitioned away from a focus on human shape toward ensoulment as carrying significant legal implications.329
The permissibility of abortion prior to ensoulment or 120 days also rested on Islamic contraception jurisprudence.330 The majority opinion in Islamic law is that contraception is permissible. The general view is that male semen and the female egg do not hold any protected status within Islamic law. Relying on Hadith and Quranic verses, Islamic scholars generally held that contraception is permissible, and in some cases, even preferable.331 Scholars particularly favored contraception in the following circumstances:
1. Protection of the precedent child. According to a belief during the Islamic Middle Age, a new pregnancy would deprive the mother of her milk, which would endanger the living child.
2. The impossibility of ensuring an education for the children.
3. The preservation of the mother's property, beauty, and wealth.
4. The fear of facing difficult periods because of wars, famines, epidemics, etc.332
Scholars used analogous reasoning to determine circumstances in which abortion is permissible. The general permissibility of contraception "strengthened the tendency [amongst scholars] to legalize abortion."333 Although scholars recognized conception as "the beginning of a new living thing," ensoulment differentiated the fetus from a life to a human life.334 The basic argument is that if contraception is permitted because it does not interfere with human life, then termination of a "pre-ensoulment foetus can be permitted on the same grounds."335 In fact, the non-extant Zaidi school of jurisprudence ruled that "since the 'unformed' foetus, like the semen, had no human life, abortion [prior to ensoulment], like contraception, was unconditionally permitted"336 up to 120 days. However, as described below, many scholars conditioned the permissibility of abortion to valid excuse. Furthermore, Islamic scholars were not as unified on their opinions regarding the permissibility of abortion as they were about contraception.337 Despite the lack of unification, there was tolerance and recognition of the range of legal rulings on abortion both within and across the schools.
Within Sunni Islam, the Maliki and Hanafischools represent the greatest range of opinions, from most restrictive to least restrictive. The Maliki majority opinion represents the most restrictive, which only permits abortion "up to [the] first 40 days of pregnancy with the consent of both parents,"338 and with a valid excuse. As between Maliki and Hanafischolars, a fundamental debate "relates to the question of whether the embryo is a part of the woman's body or an independent being."339
This debate can also be seen in the predominant opinion of the non-extant literalist, Zahiri school. While the literalism of the Zahiri school led to opinions that might be discussed in popular culture as "conservative," the preeminent Zahiri scholar, Ibn Hazm, held that prior to ensoulment at 120 days, the fetus "is a part of [his mother], a portion of her flesh and blood and a piece of her vitals," such that the ghurra in the case of a lost pregnancy due to an attack, goes exclusively to the pregnant woman.340 It is only after the 120- day period that Ibn Hazm recognizes the fetus as a separate life. However, contemporary scholars do not share this opinion.
C. Maliki v. HanafiJurisprudence
Many contemporary Muslims attempt to argue that termination of a pregnancy is only permitted in the case of necessity; however, the leading authorities in the Hanafischools clearly present contrary opinions.341 As stated in the encyclopedic work of al-Muhīt al- Burhānī, Burhān al-Dīn ibn Māza (d. 616 AH/1219 CE), termination of a pregnancy is permitted without cause, provided "some physical human features are not clearly discernible because if these features are not discernible, the fetus is not a child."342 The opinion outlined in this work was not unique.343 Many scholars relied on the reasoning that "prior to a specific period (whether defined by days or by fetal development), a fetus is not a 'child' or 'person.' Therefore, no [legal] ruling is attached to it at this stage."344
This logic was consistent regarding other legal rulings on a fetus, whether intentionally terminated or miscarried. For instance, questions of whether a fetus in these instances should be named, washed, and shrouded for burial, and as noted above, whether a pregnant woman has completed her waiting period, in the event of divorce, all carried the same internal logic. For all of these questions, the scholars above "returned to [the question of] whether the miscarried or stillborn fetus was actually considered a child/person, which in turn related to the formation and discernibility of its physical features."345
While many prominent Hanafiauthorities held this opinion, difference of opinion also exists within the Hanafischool.346 Some Hanafijurists held that termination of a pregnancy prior to the 120 days without a valid excuse was "disliked and sinful."347 Among contemporary Hanafischolars, this opinion "has gained wide acceptance."348 The difficulty with this opinion is that scholars have not elucidated the standards or list for a valid excuse. The most commonly cited example of a valid excuse is of a woman who, because she is currently breastfeeding a child when she becomes pregnant, ceases to produce milk on account of pregnancy and her husband is unable to provide an alternative source of sustenance for their child and fears for the child's life.349 Some scholars used this argument as grounds for "permitting economic need as grounds for abortion, for a well-offfather would have had the means to hire a wet-nurse, and the mother could carry on the pregnancy without interference."350 These scholars do not address other possible excuses, such as "rape, incest," adultery, etc., so it remains unclear whether they would have deemed any of these circumstances as valid excuse for termination.351
Effectively, amongst classical Hanafischolars, three main opinions exist regarding intentional pregnancy termination:
1. Unconditionally permissible prior to 120 days
2. Disliked prior to 120 days
3. Disliked but permissible with valid excuse prior to 120 days.352
Historically, the first opinion appears "to have been the dominant one in the school and held by multiple authorities in virtually every century."353 The second opinion has also maintained wide acceptance, especially by contemporary scholars. The question of the ghurra plays a critical role in termination of a pregnancy before 120 days without cause. For instance, there is a minority opinion in the Hanafischool that because the ghurra is understood to belong to the father of the would-be child, that if "a woman aborts [without cause and] with her husband's permission, no ghurra is due."354
This is in contrast to the opinion among classical Maliki scholars that prohibited termination of a pregnancy at all stages, except to save the life of the mother. While the majority opinion within the Maliki school is that it is impermissible regardless of stage of pregnancy, Malikis understand termination later in pregnancy as an increasingly grievous sin.355
Amongst the other schools of thought a range of opinions exists between the restrictive Maliki and permissive Hanafiopinions. For instance, the Shafischool is a good example of intra-school diversity with scholars split between three different positions. Namely, although within the Shafischool some scholars permit abortion up until ensoulment at 120 days, the majority of Shafischolars limit that time period to forty days based on the opinion that the first signs of human form emerge at that time, and some scholars hold an even more restrictive view, forbidding the expulsion of an implanted embryo except to save the life of the mother.356 Across the schools of thought, scholars' opinions have also ranged widely, with particular attention paid to the questions of valid excuses. The more permissible opinions, predominately from the Hanafischool, include the following:
1. Shaykh Mustafa Zarqa (1282 AH/1904 CE-1377 AH/1999 CE)357 applied a forty-day timeline that allowed for unconditional termination with the requirements of a valid excuse becoming increasingly higher after that time.358
2. Shafi'i scholar, Imam al-Ramli (d. 1004 AH/1596 CE) states: "If the embryo results from fornication, [abortion's] permissibility could be conceivable (yutakhayyal) before ensoulment."359
3. Mufti Salman Mansurpuri360 holds the opinion that "abortion is impermissible unless there is a valid excuse before 120 days," but includes wide valid excuses, including "life of the mother being at risk, serious consequences to her general health, an actual inability to bear pregnancy, clear harm or danger to one's current children, and adultery [or sex outside of marriage]."361 He does not view a desire to not have children or economic concerns as valid excuses.
4. Multiple modern scholars, including Mufti Rada al-Haqq, permit termination of a pregnancy prior to 120 days if the fetus has been diagnosed by medical professionals with an incurable and serious condition.362
5. A founding member of the Islamic Fiqh Academy of India, Mawlana Zubayr Ahmad Qasmi (d. 201 AH), held that "permission to carry out an abortion before ensoulment (even after discernibility) is not simply restricted to cases of necessity (darura) but includes cases of need (haja)."363 He defines need to include "any situation that entails bodily or psychological harm for the parents or the child and is a cause for continual distress."364
6. Other scholars have also cited rape as a valid reason for abortion prior to 120 days, based on the reasoning that if the woman
fears the effect that this may have on her reputation or her honour, or fears that she may be an outcast or that she may be subjected to harm such as being killed, or she fears that she may suffer psychological or nervous diseases, or that her sanity may be affected, or that shame may be brought upon her family for a matter in which she is not guilty of any sin, or that the child will not find any place of safety, then I say: that if this is the case, there is nothing wrong with her aborting the foetus before the soul is breathed into it, especially when it has become easy for a woman to find out if she is pregnant or not, with the advance of medical means of detecting pregnancy in the first week. The earlier the abortion is carried out, the more appropriate this concession is. And Allaah knows best.365
7. Dr. Hatem Al Haj allows for abortion within the first forty days of gestation if both parents agree and the woman has a valid reason. He includes a "woman's fear of not having the capacity to raise a newborn" as a legitimate reason but states that it is always preferable to trust in God and have the child.366
8. In response to the permissibility of abortion for Bosnian Muslim women raped during war, Shaykh Yusuf al- Qardawi laid out the basic proposition that abortion is impermissible "from the moment of conception . . . [h]owever, in cases of need, there is no harm in taking one of the two alternative views (i.e. permissibility before 40 or 120 days), and whenever the excuse is more severe, the dispensation will be more established and manifest, and whenever it is before the first 40 days, it is closer to dispensation."367
More restrictive opinions typically come from non-Hanafischolars.368 These opinions include the following:
1. Shaykh Hamza Yusuf (a Maliki scholar and prominent American), relying on a "rethinking [of] the stage of ensoulment," based on his understanding of modern medical knowledge.369 He claims that scholars that permitted termination up to 120 days based their opinions "on misinformation about embryology and a failure to understand the nuances of the Qur'anic verses and hadiths relating to embryogenesis."370
2. Shaykh 'Abd Allāh ibn Bayya (a Mauritanian scholar with international renown) holds "abortion at all stages of pregnancy to be sinful to varying degrees except in situations where the life of the mother is at risk."371
3. Shakyh Wahba al-Zuhaylī (d. 2015) held abortion to be impermissible from conception, "except in cases of necessity," of which he includes the health of the mother, that is, a mother is diagnosed with cancer.372
While the vast majority of Islamic legal scholars agree that termination of a pregnancy after 120 days is prohibited, it is important to note that many scholars hold that termination of a pregnancy after 120 days is not only permissible but may be required where the life of the pregnant woman is threatened. Up until birth, the life of the mother always takes precedence over potential life of a fetus.373 As the prominent scholar Dr. Yusuf Al-Qaradawi has noted, when the life of the mother is threatened, the general Sharia principle of choosing the lesser of two evils applies. Namely,
the mother is the origin of the fetus, moreover, her life is wellestablished, with duties and responsibilities, and she is also the pillar of the family. It would not be possible to sacrifice her life for the life of the fetus which has not yet acquired a [legal] personality and has no responsibilities or obligations to fulfill.374
In short, there is almost universal agreement that at any stage of pregnancy, "the primary concern must be for the life of the mother, and her welfare precedes any concern for the fetus."375 In the words of Muhammad Mekki Naciri: "The mother cannot be sacrificed for the child."376
D. Additional Considerations
Within both classical and contemporary scholarship, pertinent questions remain unanswered for Muslims today. For instance, advances in medical technology have made opinions that rely on permissibility up to the point of discernible features complicated. Is discernibility understood as "what is normally observable by humans [of a fetus outside the pregnant woman's body] or to what is discernible [via ultrasound] by modern embryogenesis?"377 Furthermore, how should Muslims today understand the difference of opinion between classical scholars, some of whom allowed unconditional permissibility up to 120 days, and modern scholars, who have moved to only allowing conditional permissibility378-a shiftthat seems less rooted in legal rigor and more out of concern that the safety and accessibility of abortion procedures, combined with more lax sexual mores, might result in more abortion.379 Contemporary scholars strictly prohibiting pregnancy termination "see abortion, which allows sexual activity without the consequence of pregnancy, as an extreme danger to . . . social order."380 These scholars often cite "the rise in abortion rates worldwide since . . . 1968 . . . [to] oppose its practice in their countries."381
Furthermore, contemporary scholars fail to address two other major issues: First, procedures and medications to terminate a pregnancy are now substantially safer than they were historically and are usually safer than pregnancy. Second, while the vast majority of scholars permit even late-stage termination if the life of the mother is in danger, they do not always differentiate between the life and the health of the mother and typically fail to address situations such as when a woman's life may be in danger and her future ability to have children is jeopardized (such as in the case of a repeat cesarean).382
That said, some contemporary scholars have addressed the question of maternal health. For instance, religious authorities in multiple Muslim majority countries "defend[] therapeutic abortion when the health of the mother is endangered, for the mother is the origin of the fetus, or the original source of life, and as such must be safeguarded."383 Despite the need for additional scholarship on these issues, the range of existing opinions is important for Muslims to understand in making both personal and political discussion.
E. Adopting a Different Opinion
The range of opinions between the schools as discussed above holds particular import, as Muslims are not confined to the school they typically follow.384 Under Islamic law, a legal opinion "is nonbinding (unlike a judicial court ruling) and does not negate other valid opinions or peoples' choice to follow them."385 Not only may an informed Muslim choose to follow a different, minority opinion within their school, but they can also choose a recognized opinion from another school.386 The principle of takhayyur is a "jurisprudential principle," traditionally utilized by jurists, that allows for the adoption of an opinion from another school, if the opinion more practically meets the circumstantial needs.387 Additionally, the particular circumstances of an individual should be taken into consideration, such that a scholar versed across the schools might recommend an opinion from a school different than the one the petitioner usually follows, even if the petitioner is not themself aware of the range of opinions.388 Indeed, any legal opinion issued by a jurist on the permissibility of abortion for an individual should, at least in theory, be done on a case-by-case basis, taking the specific circumstances into account.
Some scholars compare the relationship of a scholar and laity as "of a doctor and his patient."389 These scholars may provide an answer that differs from "the theoretical and abstract conclusions [they would have] reached in an academic setting . . . because its application is not appropriate in the specific case at hand . . . , and it may be inapplicable to anyone but the questioner."390 Furthermore, the principle of the "removal of hardship" (raf al-haraj) is a wellestablished and foundational principle of Islamic law.391 This is based on the statement of the Prophet Muhammad regarding religion to "[m]ake things easy . . . and do not make it difficult . . . ."392 Yet, in the modern era, out of concern for the perceived increase of sexual promiscuity in society, Islamic scholars have tended to adhere to the most restrictive abortion jurisprudence.393
Despite these contemporary claims, classical Sunni Islamic jurisprudence is clearly composed of a wide range of authoritative positions that Muslims may rely on when making pregnancy termination decisions. On the one hand, the Maliki school opinions are the most restrictive, generally allowing abortion only in cases of threats to the life of the mother. On the other hand, Hanafipositions are the most permissible with some scholars allowing termination up to 120 days without cause. Some scholars have begun to address modern issues, such as termination for fetal anomalies, and such opinions have been more widely accepted, including in non-Hanafijurisdictions.394 Although Islamic law does not frame abortion jurisprudence in terms of a woman's right to choose, the legal literature recognizes a fetus as a part of a woman's body and provides a wide range of circumstances in which pregnancy termination is permitted within the context of specific timeframes.
IV. JEWISH AND ISLAMIC ABORTION JURISPRUDENCE IN CONVERSATION
This Part highlights the similarities and differences in abortion jurisprudence between Jewish and Islamic law. As detailed in the two preceding Parts, several distinct themes are shared under both Jewish and Islamic law, including the following:
1. life with full legal rights does not begin with conception, as fetal life is understood as potential life;
2. greater protections for fetal life resulting with increased gestational age (for the first forty days of gestation, embryonic/fetal life is understood as "mere water" or a clot, allowing for more leniency in that time period; the fetus has greater protections as it is "recognizable" and/ or has taken on human form);
3. the life of the mother is always prioritized over fetal life up until the moment of birth;
4. other lives, such as those of breastfeeding babies, are taken into consideration;
5. some scholars narrowly understand abortion as only permissible when the life of the mother is at stake, and other scholars allow for abortion in a range of situations; and
6. ven opinions that are diametrically opposed are considered legitimate and under consolation with a scholar may be adopted by laity. These overlapping features will be discussed in more detail below. Not only are these features shared, but there are also similar elements in the foundational texts.
The initial inquiry in Jewish abortion jurisprudence starts with Exodus 21:22-23, which discusses the legal ramifications of a pregnant woman losing her pregnancy due to an assault from fighting parties.395 Likewise, the initial inquiry of Jewish law is the hypothetical of the legal ramifications of a pregnant woman losing her pregnancy due to someone hitting a pregnant woman. Under Jewish law, the attacker owes the father a monetary fine that is determined according to the "property loss," as demanded by the father and determined by rabbinic authorities.396 The monetary fine is paid to the father. The outcome in Islamic law is similar but with some important distinctions.
Like in Jewish law, the loss of fetal life under Islamic law is not equivalent to the loss of a full human life, and therefore, a reduced monetary damage is owed. Islamic law, however, quantifies this monetary damage as 1/20 of the damages for a full human life. Additionally, the majority of scholars in Islamic law hold that those damages are due to the would-be inheritors of the fetus, including the mother. A minority of scholars hold that because the compensation is effectively for the loss of a body part of the woman, the monetary damages are the mother's exclusive property.397 The impact of these starting tests is two-fold. First, both legal systems determined that the intentional termination of a pregnancy without valid excuse and/or outside the permissible time period does not rise to the level of murder and results in a monetary penalty, but no other penalty (although intentional termination may carry other moral implications). Second, scholars interpreted the semantics of the texts to indicate the legal standing of the fetus.
Both Jewish and Islamic scholars emphasized the language used to describe a fetus in source texts as indicative of its legal standing or lack thereof. The Talmudic discussion focuses on the absence of the usage of the terms nefesh (living, breathing being with legal rights), adam (human), or ish (man) in describing a fetus, all of which are the terms used to describe full rights bearing humans.398 The Quranic passage describes the stages of fetal development from a mixed drop of fluid to a clot of blood to a small lump of flesh to bones, and then finally bones clothed with flesh. Based on this, Islamic scholars discerned that the physical shape and/or ensoulment of the fetus were the discerning moments between an entity that is a child and not a child. This was based on both etymology and the Hadith indicating that ensoulment occurs at either 120 days (the majority opinion) or 40 days of gestation. The word used throughout Islamic history is shaks, which literally refers to the human silhouette or body, such that the legal category of human is dependent also on the physical form. These time periods likewise had a direct impact of the permissibility of abortion based on gestational age.
These semantical arguments also play an important role in deterring the permissibility of abortion at different gestational ages. The Talmud describes the fetus/embryo at forty days of gestation as "mere water" (maya b'alma).399 It also refers to a fetus as "recognizable" at three months of gestation. Therefore, some Jewish scholars determined that termination of a pregnancy prior to forty days is not even categorized as an "abortion," as you cannot "abort that which [has not] come into being yet."400 Based on these time-based descriptions, some Jewish scholars permitted termination in cases involving situations such as mental health concerns up to the three-month period. Likewise, Muslim scholars focused on the time periods of 40 days and 120 days (4 months) as the time periods in which a woman could terminate a pregnancy with or without valid cause, depending on the scholar. Islamic jurisprudence allows for a more extended time period of 120 days based on the interpretation of the Quran and Hadith literature indicating the period of time to human form and ensoulment.
During these time periods, both Jewish and Islamic abortion jurisprudence include a range of opinions, including the impermissibility of termination at any gestational age, except for in cases of threats to the life of the mother, to conditional permissibility prior to a specific gestational age, to unconditional permissible termination up to a specific gestational age. For those Jewish and Islamic scholars who condition permissibility upon a valid excuse, significant overlap exists between the types of valid excuses. These excuses include fetal anomaly, rape, pregnancy from an extramarital relation, concern for the well-being of an existing breastfed child, threats to the mother's physical health, and psychological harm. In some instances, Islamic and Jewish law have likely influenced each other in the development of valid excuses. For example, the exception for a threat to the well-being of an existing child likely originated with Islamic law and was adopted conceptually by Jewish scholars.
In some cases, Jewish law has more developed jurisprudence regarding a particular valid excuse, such as termination for fetal anomalies. This is attributable, at least in part, to the prevalence of Tay-Sachs disease among Ashkenazi Jews. With the development of fetal testing for this and other diseases, this issue gained particular salience among Jews in Israel. Additionally, some Muslim and Jewish scholars allow for abortion for pregnancies conceived outside of wedlock. Jewish law provides stronger and more consistent opinions, given the multi-generational legal implications within Judaism on a mamzer (a child born outside of wedlock). Islamic law also has severe legal implications for extra-marital sexual relation, and a child born outside of marriage is unable to have legal recognition by their father, but the child does not carry any inferior legal standing, unlike a mamzer in Jewish law. A small difference also exists between Jewish and Islamic jurisprudence regarding gestational timelines.
Both Jewish and Islamic law mark important gestational ages around 40 days and 90/120 days, respectively. While both legal traditions have the greatest degree of permissibility up to 40 days, Islamic law is unique in extending that timeframe according to some scholars to 120 days. Another difference is that Jewish scholars typically count the days from fertilization, and Muslim scholars count the days from implantation, which is about a week later. Therefore, it should be understood as about a week longer.
Both legal traditions differ significantly from American medical and legal practice, which counts the number of days from the first day of the woman's last period, therefore making the American timeline two weeks different from the Jewish timeline and three weeks different from the Islamic timeline, that is, a sixweek pregnancy under American law would be a four-week pregnancy under Jewish law and a three-week pregnancy under Islamic law. This is notable for several reasons. Technological developments in at-home pregnancy tests are such that women can now test positive for a pregnancy a few days after implantation (when the Islamic timeline begins). Therefore, even under the more restrictive interpretations of Islamic law, a woman would have five to six weeks from the time she learned about the pregnancy to have a permissible termination, depending on whether she discovered her pregnancy from an at-home test or the first day of her missed menstrual cycle. In more permissive interceptions, she would have four months. This is in contrast to American "heartbeat law," which generally prohibits abortion after six weeks, only two to three weeks after a woman may have learned she was pregnant. This more compressed timeline can make it difficult for a woman to even make an appointment in time. Furthermore, because the time period begins from implantation, the 120-day period of time in Islamic law is equivalent to twenty weeks of pregnancy, which is three weeks shy of the Supreme Court's twenty-three-week ruling in Casey.401 The chart below demonstrates these differing timelines.
Additionally, both Jewish and Islamic law prioritize the life of the mother over the life of the fetus at all stages of pregnancy. They not only allow for the termination of fetal life if the mother's life is threatened, but require that the mother's life be preserved. Islamic law bases this on the Islamic legal principle of choosing the lesser of two evils and the status of the mother in relationship to other people.402 As the woman already has legal standing in multiple capacities that entail duties and responsibilities, her life is to be preserved over the fetus, which has yet to acquire full legal personality and has no duties or responsibilities.403 While Jewish law reaches the same conclusion, it bases it on the principle of the rodef or pursuer,404 and the direct text of the Mishnah explicitly describes dismembering the fetus that is stuck in the birth canal to save the life of the mother.405 Similar to Islamic law, Jewish jurisprudence refers to the lack of full legal personality of the fetus (it is not yet a nefesh) to justify destroying the fetus to save the life of the mother.406
Finally, Jewish and Islamic law share two important features: (1) diversity of opinion and (2) leniency as a principle. Under both legal systems, diversity of opinion allows for multiple authoritative positions, such as the example of the debate between Rabbi Feinstein and Rabbi Waldenberg. It also allows for certain opinions to gain prominence. For instance, while Rabbi Feinstein's opinion exists, today his opinion "is plainly not followed and is deemed incorrect in practice . . . . [Abortion] is permissible for certain vitally necessary situations, according to Rabbi Eliezer Waldenberg . . . . That truth pervades Halacha and informs social policy."407 As noted in Part II, the principle in Jewish law of kohl dehetera 'adif, meaning that "the power of being lenient is preferable," recommends for Rabbis to be lenient and for lenient Rabbis to be "preferred over other Rabbis."408 This is implemented in conjunction with the understanding that Rabbis should rule with mercy.409
Similarly, a central principle of Islamic law is the removal of hardship (raf al-haraj). Specifically, the classical response of Muslim scholars to a perceived "degenerated state of society" is not to insist on the most restrictive position, but rather it is sufficient for the laity to "only avoid[] the impermissible."410 Modern scholars such as Shaykh Abdal Hakim Murad have also relied on this application, stating:
This, of course, is a Prophetic counsel. The ego doesn't always like giving people easy options because we assume it is because of our laziness or some kind of liberal Islam. For al-Birgivī it is taqwā [God conscientiousness] to give the ordinary Muslims the easier interpretations and it is usually the ego that wants the harder interpretation because it is a form of self-praise . . . it represents the usual fiqh position but nowadays, we tend to assume that the narrower you are, the less compromises you make, the more the West will be angry and, therefore, the better the Muslim you must be.411
The Prophetic counsel referenced is to "[m]ake things easy . . . and do not make it difficult for them, and make them calm (with glad tidings) and do not repulse (them)."412 Scholars such as Shaykh Salman Younas have noted that "[t]his attitude of facilitating matters for people, granting them leniency, and not repulsing them with harshness and difficulty is a part of Islam."413
Jewish and Islamic abortion jurisprudence are similar in other respects as well. Namely, the scholars who developed the jurisprudence are overwhelmingly men. Although these men sometimes made decisions in consultations with midwives, men served as the ultimate arbiters. How abortion jurisprudence in both legal traditions might have developed differently historically, or may do so in the future, if female scholars played a significant interpretive role remains to be seen. Likewise, neither legal tradition recognizes women's bodily autonomy, privacy, or choice as grounds for a permissible termination. That said, both traditions include understandings of the fetus as part of a woman's body, and some scholars, such as the classical Hanafischolar Ibn Qudamah, recognized that a women could serve as the sole authority on issues of pregnancy, birth, and stillbirth. 414
Finally, regardless of legal rulings, this historical record shows that Jewish and Muslim women had and continue to have abortions. In some ways, Jewish and Muslim scholars have yet to truly address that women of both traditions have and will continue to have abortions, and that this has significant public policy implications. As will be discussed more below, maternal and perinatal outcomes are significantly improved in jurisdictions with legalized abortions. This is in part because legalized abortion means that medically safe pregnancy terminations can be more easily accessed when medical necessity dictates. While criminalizing abortion can result in a small decrease in abortions overall, it comes with a significant healthcare impact on women.415 Jewish and Muslim abortion jurisprudence both lack significant treatment of generally legalized abortion as healthcare.
CONCLUSION
Curiously, scholars advocating both for and against Muslims' First Amendment claims to abortion access make maslaha (public good/public interest) arguments. Both sets of scholars recognize that under Islamic law, authorities may restrict or permit that which is determined to be for the common good.416 Namely, those scholars that support anti-abortion legislation argue that such legislation is for the public good, provided such legislation has exceptions for the life of the mother, as this legislation protects fetal life and is in line with an accepted opinion under Islamic law. Islamic scholars advocating for legal abortion argue that it ensures that women who fall under a permissible exception are able to have an abortion that is accessible and safe, and that maternal life is better protected when doctors are adequately trained and abortion is widely available.
Similar arguments are made within the Jewish community, with a distinct divide in the approach between the Conservative and Orthodox communities, and among Orthodox Jews. Among Orthodox Jews, "there is a yawning gap between a faction that says the reversal of Roe v. Wade has triggered a crisis that will put the lives of women at risk and another that welcomes the decision as life-affirming and aligned with traditional Jewish values."417 For instance, Agudath Israel of America (the umbrella group of ultra- Orthodox groups) stated in response to the Dobbs decision that "[a]llowing abortion on demand . . . promotes a social ethic that devalues life."418 Some Jewish scholars, such as Rabbi Bleich, also indicate a trust in the state, and a naivete to the realities of abortion legislation enforcement. In reaction to the Dobbs decision he stated: "As of today, I do not think there is a single state which forbids abortion when the mother's life is at stake . . . I think district attorneys are smart enough not to bring a course of action [when a mother's life is in danger]."419 This position underestimated the impact of the Dobbs decision, in which a marked increase in maternal mortality has been well documented.420 Other groups, such as the Jewish Orthodox Feminist Alliance, have argued that due to the Dobbs decision Jewish women will be "prosecuted for availing themselves or trying to avail themselves of halachically required abortions . . . . It's that simple. It's going to happen and women will die."421 As Shaykh Salman Younis has noted in his masterful article Reflections on Muslim Approaches to the Abortion Debate: The Problem of Narrow Conceptualization, "Most public discourse on abortion promotes one traditional opinion over another based not on a rigorous standard that is grounded . . . , [but rather] [t]he mainstream opinions of the legal school simply act as tools of legitimation for one's personal view."422
This discourse rarely engages with the impact of abortion restrictions on maternal, perinatal, and infant health. A recent study that compared states that enacted laws limiting access to abortion to those with abortion access found that "maternal death rates were 62 percent higher in 2020 . . . in abortion-restriction states than in abortion-access states . . . , [and] the maternal mortality rate was increasing nearly twice as fast in states with abortion restrictions."423 Perinatal and neonatal deaths were also found to be "worse in states with abortion bans or restrictions . . . , [with] perinatal deaths (fetal deaths or infant deaths in the first week of life) occur[ing] at a 15 percent higher rate."424 Furthermore, abortion-restriction states "also had higher neonatal death rates in the first 27 days of life . . . as well as higher postneonatal mortality rates between 28 and 365 days after birth."425 Finally, infant mortality was also "higher in abortion-restriction states: 41 percent higher for non-Hispanic Asian infants, 34 percent higher for non- Hispanic white infants, and 12 percent higher for non-Hispanic 9 jurisprudence remains focused on the well-being of the pregnant person or the fetus within the timeline of pregnancy, rather than examining the longitudinal health impacts of abortion access.
The public policy considerations also extend to issues of mental health. Although some scholars of both Jewish and Islamic law have allowed for abortion on grounds of mental health concerns, there has not been a serious engagement about the mental health impacts of anti-abortion legislation. Of the states with limited abortion access, "[e]ighteen states have abortion bans that explicitly exclude mental health emergencies from the lifesaving exceptions permitted under their laws, in spite of the fact that nearly a quarter of pregnancy deaths result from mental illness."426 One ten-year longitudinal study "found that people who were unable to get abortions experienced a spike in psychological harm, including anxiety symptoms."427 Another recent study found that "living in a[n] [abortion] ban state is associated with higher rates of anxiety and depression."428
The consideration of abortion access as healthcare is largely missing from Jewish and Islamic jurisprudence because classical scholars understood abortion as a dangerous procedure, because up until very recently, it often did result in maternal death.429 Even today, due to the lack of access to legal, safe abortion, over twenty million women undergo "unsafe abortion annually, making it one of the leading causes of maternal mortality."430 Of those who survive, a quarter will experience long-term health consequences.431 The legal debate within Jewish and Islamic law has yet to acknowledge the significant advances in medical technology that render legal abortion safe and an important component of women's healthcare.
The role of Muslims and Jews in the abortion debate in the United States remains to be seen. Jewish and Muslim Americans are at the forefront of religious freedom claims. Whether Muslims and Jews will also advocate for legalized abortion on grounds of abortion as healthcare may depend on a shiftfrom social anxieties around promiscuity to a prioritization of maternal, perinatal, and infant health. The legal pluralism of each legal tradition has a long history of being dynamic and responsive to new understandings, changed circumstances, and technological developments.
This continued development may also hinge on the increased engagement of women legal scholars. Muslim and Jewish women's perspectives would likely impact the development of the abortion jurisprudence of their respective legal traditions, as the theoretical becomes personal. The experience of a Jewish or Muslim woman navigating a pregnancy termination will almost immediately meet the intersection of state law and religious law. In such a circumstance, a pregnant woman could easily find herself in the situation where, according to religious law, God allows or requires that she terminate the pregnancy, but state law prohibits her from doing so. She might find herself indeed wishing for the legal diversity of Jewish and Islamic abortion jurisprudence, which would allow her to choose the legal authorities' ruling that most closely aligns with her needs and beliefs.
1. See, e.g., Michael Raucher, The Religion of Reproductive Rights Claims: The Jewish Fight to Legalize Abortion, REVEALER (Oct. 4, 2023), https://therevealer.org/the-religion-ofreproductive- rights-claims-the-jewish-fight-to-legalize-abortion [https://perma.cc/Q862- KQFY]; see also Indiana Abortion Challenge Status Page and Editorial, BECKET FUND FOR RELIGIOUS LIBERTY, https://www.becketlaw.org/case/individual-members-of-themedical- licensing-board-of-indiana-v-anonymous-plaintiff-1/?section=caseDetail [https:// perma.cc/GV3S-T4W7] ("[T]here was evidence that the women's beliefs might be political or philosophical, rather than religious, or insincere, or both.").
2. Maureen Dowd, Too Much Church in the State, N.Y. TIMES, (May 14, 2022), https://www.nbcnews.com/think/opinion/religious-women-have-abortions-too-manyfaiths- affirm-abortion-rights-ncna1287846.
3. Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). See, e.g., Dowd, supra note 2; Linda Greenhouse, God Has No Place in Supreme Court Opinions, N.Y. TIMES (Sept. 9, 2021), https://www.nytimes.com/2021/09/09/opinion/abortion-supreme-courtreligion. html; James Carroll, The Sins of the High Court's Supreme Catholics, THE NEW YORKER (Aug. 12, 2022), https://www.newyorker.com/news/daily-comment/the-sins-of-the-highcourts- supreme-catholics.
4. See, e.g., Fred Rosner, The Jewish Attitude Toward Abortion, 10 TRADITION 48 (1968).
5. Ari Berman, The Religious Exception to Abortion Bans, 76 STAN. L. REV. (forthcoming 2024); Michael A. Helfand, Using Jewish Law: Jewish Religious Liberty Advocacy for the Right to Abortion, 70 WAYNE L. REV. 1 (2024); Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. REV. 177 (2023); Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion, 2023 WIS. L. REV. 475 (2023); Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, 27 TEX. REV. L. & POL. 441 (2023); Micah Schwartzman & Richard Schragger, Religious Freedom and Abortion, 108 IOWA L. REV. 2299 (2023); David Segal, A Religious Right to Choose? Prospects for Jewish Free Exercise Exemptions from Abortion Bans, 61 HOUS. L. REV. 677 (2023); Deborah Machalow, Religious Diversity and a Women's Right to Choose: The Religious. Right's Mistakenly Assumed Monopoly on Belief and Religious Support for Abortion, 22 RUTGERS J.L. & RELIGION 476 (2022); Carla Graff, The Religious Right to Therapeutic Abortions, 85 GEO. WASH. L. REV. 954 (2017); Ricky L. Welborn, Abortion Laws: A Constitutional Right to Abortion, 49 N.C. L. REV. 487 (1971).
6. See e.g., Aziza Ahmed, Abortion Experts, 2022 U. CHI. LEGAL F. 1 (2022); Greer Donley, Medication Abortion Exceptionalism, 107 CORNELL L. REV. 627 (2022); Carleen M. Zubrzycki, The Abortion Interoperability Trap, 132 YALE L.J. F. 197 (2022); Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, 27 TEX. REV. L. & POL. 441 (2023); Andrew T. Ingram, Prosecutorial Authority and Abortion, 96 S. CAL. L. REV. POSTSCRIPT 61 (2022); David S. Cohen, Greer Donley & Rachel Rebouche, The New Abortion Battleground, 123 COLUM. L. REV. 1 (2023); Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. REV. 177 (2023); Patrice D. Douglass, Deterritorializing Abortion: Gender, Law, and Procedure, 34 YALE J.L. & FEMINISM 74 (2023); Tom Lininger, Abortion, the Underground Railroad, and Evidentiary Privilege, 80 WASH. & LEE L. REV. 663 (2023); Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 VAND. L. REV. 1649 (2022); Rachel Rebouche & Mary Ziegler, Fracture: Abortion Law and Politics After Dobbs, 76 SMU L. REV. 27 (2023); Jennifer Brunner, Is Limiting Abortion a Pretext for Oligarchy? Abortion and the Quest to Limit Citizen-Initiated Ballot Rights in Ohio, 2023 WIS. L. REV. 1493 (2023); Allison M. Whelan, Aggravating Inequalities: State Regulation of Abortion and Contraception, 46 HARV. J.L. & GENDER 131 (2023); Lauren van Schilfgaarde, Aila Hoss, Ann E. Tweedy, Sarah Deer & Stacy Leeds, Tribal Nations and Abortion Access: A Path Forward, 46 HARV. J.L. & GENDER 1 (2023); Melissa Murray, Abortion, Sterilization, and the Universe of Reproductive Rights, 63 WM. & MARY L. REV. 1599 (2022); Robyn M. Powell, Including Disabled People in the Battle to Protect Abortion Rights: A Call-to-Action, 70 UCLA L. REV. 774 (2023); Lewis A. Grossman, Freedom Not to See a Doctor: The Path Toward over-the-Counter Abortion Pills, 2023 WIS. L. REV. 1041 (2023); Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 COLUM. J. GENDER & L. 67 (2022); J. Shoshanna Ehrlich, Too Young for Marriage but Not for Abortion: Keeping Teens in the "Driver's Seat of Their Lives" Through the Intended Purpose Approach to the Shifting of Age Boundaries, 45 HARV. J.L. & GENDER 125 (2022).
7. Judaism is the oldest continuous legal system in the world. Islam is the second largest religion in the world.
8. Scholars have argued that the First Amendment is likewise a "constitutional commitment for Americans to agree to disagree about matters of religion." NATHAN S. CHAPMAN AND MICHAEL W. MCCONNELL, AGREEING TO DISAGREE: HOW THE ESTABLISHMENT CLAUSE PROTECTS RELIGIOUS DIVERSITY AND FREEDOM OF CONSCIENCE 6 (Oxford Univ. Press 2023). Other scholars have also noted the growing trend in the United States to not want beliefs that they disagree with to exist in the public square, and the need for Americans to accommodate difference in beliefs. JOHN INAZU, "LEARNING TO DIAGREE: THE SURPRISING PATH TO NAVIGATING DIFFERENCES WITH EMAPTY AND RESPECT" (Zondervan Books, 2024).
9. See Michael Broyde, Law, Religion & Abortion Law of the United Stated: A Jewish View, CANOPY F. (Sept. 26, 2022), https://canopyforum.org/2022/09/26/law-religionabortion- law-of-the-united-states-a-jewish-view ("Notwithstanding the great amount of literature on this matter, no consensus has developed within the Jewish law community."); See also Shayk Salman Younas, Reflections on Muslim Approaches to the Abortion Debate: The Problem of Narrow Conceptualization, MUSLIM MATTERS n.2 (Aug. 19, 2019), https:// muslimmatters.org/2019/08/19/reflections-on-muslim-approaches-to-the-abortiondebate- the-problem-of-narrow-conceptualization [https://perma.cc/3DRM-7KLD] (stating "there are an array of opinions on the issue of abortion ranging from extremely restrictive to the more permissive.").
10. See Reem Shaikh, What Does Sharia Really Say About Abortion in Islam, MUSLIM MATTERS, (May 21, 2019), https://muslimmatters.org/2019/05/21/what-does-shariareally- say-about-abortion-in-islam (displaying a tweet stating: "Anti-Abortion laws are not about science or medicine. They are always about radicalized religious extremism. Every time a state bans abortion, it passes the Christian version of Sharia Law, in violation of the First Amendment's Establishment Clause.").
11. Linah Mohammad & Ashley Brown, Muslim-American Opinions on Abortion Are Complex. What Does Islam Actually Say?, NPR (Feb. 1, 2023, 5:01 AM), https:// www.npr.org/2023/02/01/1152071397/muslim-abortion-islam-religion-united-states [https://perma.cc/8632-3BVZ].
12. ABORTION & RELIGION (citing JENNA JERMAN, RACHEL K. JONES & TSUYOSHI ONDA, CHARACTERISTICS OF U.S. ABORTION PATIENTS IN 2014 AND CHANGES SINCE 2008 (2016)), https://abortionandreligion.com [https://perma.cc/W66W-V5KK] (last visited Feb. 12, 2025).
13. Anonymous Plaintiffs v. Individual Members of the Med. Licensing Bd., No. 49D01-2209-PL-031056 (Marion Cnty., Ind., Super. Ct. Dec. 2, 2022), https://clearinghouse.net/doc/135887 (Order Granting Plaintiffs' Motion for Preliminary Injunction).
14. Id. slip op. at 8 (internal citations omitted).
15. Id. slip op. at 9.
16. Id. slip op. at 32 (internal citations omitted).
17. Id. (quoting Ind. Code § 16-34-2-1.1(a)(1)(E)).
18. LePage v. Mobile Infirmary Clinic, SC-2022-0515, 2024 WL 656591 (Ala. Feb. 16, 2024).
19. See, e.g., LOUIS JACOBS, A TREE OF LIFE: DIVERSITY, FLEXIBILITY, AND CREATIVITY IN JEWISH LAW (Liverpool Univ. Press 2007); See also Nazir Khan, Difference of Opinion: Where Do We Draw the Line?, YAQEEN INST. FOR ISLAMIC RSCH. (last updated Jul. 22, 2024), https://yaqeeninstitute.org/read/paper/difference-of-opinion-where-do-we-drawthe- line.
20. See Nazir Khan, supra note 19, describing the five requirements within Sunni Islamic law for a legal opinion to be considered valid; see also infra Sections II.A, II.A.1 and FRANÇOIS-XAVIER LICARI, AN INTRODUCTION TO JEWISH LAW 64-106 (Cambridge Univ. Press 2019), https://www.cambridge.org/core/books/abs/an-introduction-to-jewish-law/ halachic-authority/715D8F91F1439402DD0B3044680A93C4 (describing Halachic authority).
21. Shayk Salman Younas, Reflections on Muslim Approaches to the Abortion Debate: The Problem of Narrow Conceptualization, MUSLIM MATTERS n.2 (Aug. 19, 2019), https:// muslimmatters.org/2019/08/19/reflections-on-muslim-approaches-to-the-abortiondebate- the-problem-of-narrow-conceptualization [https://perma.cc/3DRM-7KLD].
22. Note, the National Institute of Health states that "[i]t is not always necessary to avoid the word women . . . especially in a public health context," and that "[b]oth pregnant women and pregnant people are acceptable phrases." Inclusive and Gender-Neutral Language, NIH STYLE GUIDE, www.nih.gov/nih-style-guide/inclusive-gender-neutral-language (last visited Jan. 19, 2025) (available at https://web.archive.org/web/20250119205550/ https://www.nih.gov/nih-style-guide/inclusive-gender-neutral-language). As some scholars note, some people "see this kind of language [of pregnant people] as exclusionary because it erases women and mothers as worthy categories of identity." Emma Green, The Culture War over 'Pregnant People,' THE ATLANTIC (Sept. 17, 2021), https://www.theatlantic.com/ politics/archive/2021/09/pregnant-people-gender-identity/620031.
23. Sajida Jalalzai, Please Stop Using Islam to Critique the Abortion Ban: It Only Excuses the Very Christian, Very White Roots of Anti-Choice Movements, RELIGION DISPATCHES (Sept. 3, 2021), https://religiondispatches.org/please-stop-using-islam-to-critique-the-abortion-banit- simply-excuses-the-very-christian-very-white-roots-of-anti-choice-movements.
24. Zahra Ayubi, There Is No One Islamic Interpretation on Ethics of Abortion, but the Belief in God's Mercy and Compassion Is a Crucial Part of Any Consideration, RELIGION NEWS SERVICE (July 8, 2022), https://religionnews.com/2022/07/08/no-single-islamic-view-of-abortionbut- belief-in-gods-mercy-and-compassion-is-key.
25. See sources cited supra note 1 and accompanying text.
26. PUB. RELIGION RSCH. INST., ABORTION ATTITUDES IN A POST-ROE WORLD: FINDINGS FROM THE 50-STATE 2022 AMERICAN VALUES ATLAS (Feb. 23, 2023), https://www.prri.org/research/abortion-attitudes-in-a-post-roe-world-findings-from-the- 50-state-2022-american-values-atlas.
27. Id.
28. Id. The report notes that "other Catholics of color" is exclusive of "white Catholics" and "Hispanic Catholics." Id.
29. Id.
30. Id. Only "evangelical Protestants" at 61% and "Latter-day Saints" at 52% show majority support for the overturning of Roe. Id.
31. Mohammad & Brown, supra note 11.
32. Id.
33. Id.
34. Id.
35. PEW RSCH. CTR., AMERICA'S ABORTION QUANDARY (May 6, 2022), https://www. pewresearch.org/religion/2022/05/06/americas-abortion-quandary.
36. Id. (emphasis added).
37. Domenico Montanaro, Poll: Majority Want to Keep Abortion Legal, But They Also Want Restrictions, NPR (June 7, 2019, 5:00 AM), https://www.npr.org/ 2019/06/07/730183531/poll-majority-want-to-keep-abortion-legal-but-they-alsowant- restrictions.
38. PEW RSCH. CTR., supra note 35.
39. PUB. RELIGION RSCH. INST., supra note 26.
40. Language prioritizing fetal life is found in several state codes/statutes, including, for example, Indiana, see supra notes 13-17; Florida, see FLA. STAT. § 390.01112(3) (2024); and Missouri, see MO. REV. STAT. § 188.026(5)(2) (2024).
41. OU Staff, Statement by the Union of Orthodox Jewish Congregations of America on US Supreme Court's Ruling in Dobbs v. Jackson, Overturning Roe v. Wade, ORTHODOX UNION (June 24, 2022), https://www.ou.org/news/statement-by-the-union-of-orthodox-jewishcongregations- of-america-on-us-supreme-courts-ruling-in-dobbs-v-jackson-overturningroe- v-wade; see also Temple Clergy, A Clergy Response to the United States Supreme Court's Decision to Overturn Roe v. Wade, STEPHEN WISE TEMPLE (June 24, 2022), https:// wisela.org/stephen-wise-temple-clergy-response-to-dobbs-v-jackson.
42. Raucher, supra note 1.
43. Id.
44. Complaint for Declaratory Relief at 14, Sobel v. Cameron, No. 22-CI-005189 (Jefferson Cnty., Ky., Cir. Ct. Oct. 6, 2022), https://htv-prod-media.s3.amazonaws.com/ files/sobel-complaint-against-cameron-1665079005.pdf.
45. Id. at 6.
46. See Bruce Schreiner, Jewish Women Cite Faith in Contesting Kentucky Abortion Ban, ASSOCIATED PRESS (Oct. 6, 2022, 3:15 PM), https://apnews.com/article/abortion-2022- midterm-elections-health-kentucky-legislature-26ecd225013231ee8766248633d289a3.
47. Class Action Complaint for Declaratory and Injunctive Relief at 1-2, Anonymous Plaintiffs v. Individual Members of the Med. Licensing Bd., No. 49D01-2209-PL-031056 (Marion Cnty., Ind., Super. Ct. Sept. 8, 2022).
48. Affidavit of Rabbi Barry Silver, Generation to Generation v. Florida, No. 2022- 000980-CA-37 (Fla. 2d Cir. Ct. Aug. 9, 2022), https://www.rabbibarrysilver.com/rabbibarry- s-writings/august-9-affadavit.
49. Id.
50. Raucher, supra note 1; see also Micah Schwartzman & Richard Schragger, Religious Freedom and Abortion, 108 IOWA L. REV. 2233-34 (2023).
51. See Dahlia Lithwick & Micah Schwartzman, Is the Religious Liberty Tent Big Enough to Include the Religious Commitments of Jews?, SLATE (June 22, 2022, 3:48 PM), https://slate.com/news-and-politics/2022/06/do-proponents-of-religious-liberty-reallyintend- to-dispute-the-religious-commitments-of-jews.html.
52. Ron Kampeas, Orthodox Jewish Divides on Abortion Come to the Fore After Roe v. Wade Reversal, TIMES OF ISR. (July 1, 2022, 4:17 AM), https://www.timesofisrael.com/ orthodox-jewish-divides-on-abortion-come-to-the-fore-after-roe-v-wade-reversal.
53. Id. (citing Rabba Sara Hurwitz & Don Linzer, Overturning Roe Would Be an Unconscionable Infringement on the Religious Freedom of Orthodox Jews, JEWISH TELEGRAPHIC AGENCY (May 19, 2022, 2:34 PM), https://www.jta.org/2022/05/19/ideas/overturningroe- would-be-an-unconscionable-infringement-on-the-religious-freedom-oforthodox- jews).
54. Michael Broyde, What Does Jewish Law Think American Abortion Law Ought to Be, LEHR HAUS (June 28, 2022), https://thelehrhaus.com/timely-thoughts/what-does-jewishlaw- think-american-abortion-law-ought-to-be.
55. Kampeas, supra note 52.
56. Dalia Hatuqa, US Muslim Advocates Weigh in on Abortion Rights Battle, AL JAZEERA (Jan. 26, 2022), https://www.aljazeera.com/news/2022/1/26/us-muslim-advocatesweigh- in-on-abortion-rights-battle.
57. Id.
58. Asifa Quraishi-Landes, Abortion Bans Trample on the Religious Freedom of Muslims, Too, S.F. CHRON. (last updated June 24, 2022, 1:45 PM), https://www.sfchronicle.com/ opinion/openforum/article/abortion-bans-religion-17259119.php.
59. Navila Rashid, Roe v. Wade Statement, HEART (June 24, 2022), https:// hearttogrow.org/roe-v-wade-statement.
60. Mohammad & Brown, supra note 11; see discussion infra Section III.A.1.
61. Quraishi-Landes, supra note 58.
62. Hatuqa, supra note 56.
63. Ismail Royer, There Is No Religious Freedom Argument for Abortion in Islam, CANOPY F. (Sept. 23, 2022), https://canopyforum.org/2022/09/23/there-is-no-religious-freedomargument- for-abortion-in-islam.
64. Id.
65. Id.
66. Braunfeld v. Brown, 366 U.S 599, 605-06 (1961).
67. Melanie Mordhorst-Mayer, Nitzan Rimon-Zarfaty & Mark Schweda, 'Perspectivism' in the Halakhic Debate on Abortion Between Moshe Feinstein and Eliezer Waldenberg-Relations Between Jewish Medical Ethics and Socio-Cultural Contexts, WOMEN IN JUDAISM, Spring 2013, at 1.
68. Id. at 3.
69. Id. (citation omitted).
70. Id. at 4.
71. DANIEL SCHIFF, ABORTION IN JUDAISM 227 (U.S.C. Press 2003); see also Montanaro, supra note 37 (Barbara Carvalho, director of the Marist Poll, discussing a Marist's 2019 Poll of Americans on abortion: "What . . . [the poll] speaks to is the fact that the debate is dominated by the extreme positions on both sides.").
72. SCHIFF, supra note 71, at 227; see also Jaclyn Diaz, It's Cold and Snowing in D.C. but the March for Life Goes on-After Roe Ends, NPR (Jan 19, 2024, 8:17 PM), https:// www.npr.org/2024/01/19/1225736660/cold-snowing-d-c-march-for-life-roe.
73. PEW RSCH. CTR., supra note 35.
74. SCHIFF, supra note 71, at 227-28.
75. Y. Michael Barilan, Her Pain Prevails and Her Judgment Respected-Abortion in Judaism, 25 J.L. & RELIGION 97, 97 (2009).
76. Id. at 106, 97.
77. Id. at 98.
78. SCHIFF, supra note 71, at 27.
79. Barilan, supra note 75, at 98.
80. Michael J. Broyde & Ariel Liberman, Learning Law Young: Towards a More Robust, Impactful Civics Education Modeled Offof Jewish Law Learning, 52 J.L. & EDUC. 1, 42 (2023).
81. Mordhorst-Mayer et al., supra note 67, at 5.
82. Id.
83. Id.
84. Id.
85. Id.
86. Barilan, supra note 75, at 98.
87. 1 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES at 235 (Bernard Auerback & Melvin J. Sykes trans., 1994).
88. IRVING A. BREITOWITZ, BETWEEN CIVIL AND RELIGION LAW: THE PLIGHT OF THE AGUNAH IN AMERICAN SOCIETY 307 (1993).
89. SCHIFF, supra note 71, at 6.
90. ELON, supra note 87, at 235.
91. BREITOWITZ, supra note 88, at 307.
92. HANOCH DAGAN, UNJUST ENRICHMENT: A STUDY OF PRIVATE LAW AND PUBLIC VALUES 110 (1997).
93. Jill Jacobs, Tale of Two Talmuds: Jerusalem and Babylonian, MY JEWISH LEARNING, https://www.myjewishlearning.com/article/tale-of-two-talmuds [https://perma.cc/UKU8-SZ6S] (last visited Feb. 15, 2025).
94. DAGAN, supra note 92, at 110.
95. Id.
96. Id. at 110-11.
97. ELON, supra note 87, at 238.
98. Id. at 238-39.
99. Id. at 239.
100. See Menachem Marc Kellner, The Structure of Jewish Ethics, in CONTEMPORARY JEWISH ETHICS AND MORALITY 17 (Elliot N. Dorff & Louis E. Newman eds., Oxford University Press 1995) (1978).
101. Jewish Religion: Reform, Conservative and Orthodox, HAARETZ (July 1, 2013), https://www.haaretz.com/jewish/2013-07-01/ty-article/premium/the-denominations-ofjudaism/ 0000017f-dbe6-db22-a17f-fff7807c0000?v=1706051565841<s=1706051588478.
102. Id.
103. Id.
104. Id.
105. Goedele Baeke, Jean-Pierre Wils & Bert Broeckaert, 'There is a Time to be Born and a Time to Die' (Ecclesiastes 3:2a): Jewish Perspectives on Euthanasia, 50 J. RELIGION & HEALTH 778, 781 (2011) (citing Kellner, supra note 100, at 16).
106. Id.
107. Id.
108. Id.
109. See id.
110. See Mordhorst-Mayer et al., supra note 67; see discussion infra Section II.D.
111. Baeke et al., supra note 105, at 782.
112. Halakhah in Conservative Judaism, MY JEWISH LEARNING, https://www. myjewishlearning.com/article/halakhah-in-conservative-judaism (last visited Mar. 10, 2025).
113. Id.
114. Baeke et al., supra note 105, at 782.
115. Id.
116. Id. (quoting LOUIS E. NEWMAN, AN INTRODUCTION TO JEWISH ETHICS 133 (2005)).
117. Id.
118. Reform Responsa, CENT. CONF. OF AM. RABBIS, https://www.ccarnet.org/rabbinicvoice/ reform-responsa (last visited Mar. 10, 2025).
119. Mark Washofsky, Reform Judaism & Halakhah, MY JEWISH LEARNING, https://www.myjewishlearning.com/article/reform-judaism-halakhah (last visited Mar. 10, 2025).
120. Id.
121. See Lithwick & Schwartzman, supra note 51.
122. Exodus 21:22-25.
123. SCHIFF, supra note 71, at 1.
124. Exodus 21:22.
125. SCHIFF, supra note 71, at 6.
126. According to Dr. Rosner, "[m]ost other Jewish Bible commentators including Ramban, Ibn Ezra, Malbin, Torah Temimah, Hirsch, and Hertz agree with Rashi's interpretation" that "the attacker pays only compensation for the loss of the fetus . . . to the husband since the fetus is his property." Rosner, supra note 4, at 55.
127. SCHIFF, supra note 71, at 6.
128. Mishneh Torah, One Who Injures a Person or Property 4:2 (Eliyahu Touger trans., Mozniam Publ'g 1986), https://www.sefaria.org/Mishneh_Torah%2C_One_Who_Injures_ a_Person_or_Property.4?lang=en&with=all&lang2=en. Note that some scholars suggest that the determination of the value of a fetus in antiquity usually included ascertaining the gender and viability of the fetus. SCHIFF, supra note 71, at 6.
129. See SCHIFF, supra note 71, at 28.
130. Id.
131. Leviticus 24:17.
132. Exodus 21:12.
133. Rosner, supra note 4, at 55-56.
134. Id. at 56.
135. SCHIFF, supra note 71, at 28 (emphasis added).
136. Id.
137. Babylonian Talmud, Yevamot 69b.
138. See J. David Bleich, Contemporary Halakhic Problems, Vol IV, Chapter VIII Fetal Tissue Research, Jewish Tradition and Public Policy, https://www.sefaria.org/Contemporary_ Halakhic_Problems%2C_Vol_IV%2C_Chapter_VIII_Fetal_Tissue_Research%2C_Jewish_Tr adition_and_Public_Policy?lang=bi&with=all&lang2=en (last visited Mar. 10, 2025). In the discussion on the requirement to bury a fetus, the scholars note that the primary concern is not the commandment kohen (priest) inadvertently becoming "defiled by virtue of finding himself under the same roof as a nefel." Id. Furthermore, scholars do not precisely delineate at what stage a fetus needs to be buried. Within the first forty days of conception, the "nascent embryo is described by the Gemara, Yevamot 69b, as 'mere water' and hence certainly does not require burial." Id. Furthermore, even a "three-month fetus does not require burial." Id. One scholar "rules that a fetus that has reached a gestational age 'of five or six months' requires burial provided that it is 'complete in its limbs.'" Id.
139. Babylonian Talmud, Chullin 58a (discussing a debate where one scholar contends that a fetus is like the thigh of the mother: "Rabbi Eliezer holds that a fetus is considered like the thigh of its mother and is rendered a tereifa as part of its body, and Rabbi Yehoshua holds that a fetus is not considered like the thigh of its mother."), https://www.sefaria. org/Chullin.58a?lang=bi.
140. Adena Berkowitz, My Body, My Choice: Biblical, Rabbinic, and Contemporary Halakhic Responses to Abortion, 37 TOURO L.R. 1133, 1135 (2021).
141. See Babylonian Talmud, Sanhedrin 72b, https://www.sefaria.org/Sanhedrin. 72b?lang=bi&with=all&lang2=en.
142. Id.
143. Id. at 72b:7.
144. Id.
145. Id. at 72b:13.
146. Id.
147. Id. at 72b:14.
148. Mishnah Oholot 7:6 (Joshua Kulp trans.), https://www.sefaria.org/Mishnah_ Oholot.7.6?lang=en.
149. Rosner, supra note 4, at 56.
150. Michael Broyde, Abortion and Jewish Law: Understanding the Classical Sources, TORAH CAFÉ (2013), https://www.torahcafe.com/rabbi-dr-michael-broyde/abortion-andjewish- law-understanding-the-classical-sources-video_75f812478.html.
151. Id.
152. Rosner, supra note 4, at 57.
153. Id. at 57-58.
154. Id. at 61 (also noting similarities in "the laws regarding ritual impurity and offerings" that women "must adhere to" following live birth and abortion following forty days of conception).
155. Id.
156. Id. at 62.
157. Id.
158. Id.
159. A Mamzer Fetus, PENINEI HALAKHA, https://ph.yhb.org.il/en/14-09-10 (last visited Mar. 10, 2025).
160. See, e.g., Benjamin Hassan, Abortion in Jewish Law, https:// www.sefaria.org/sheets/392339?lang=bi (last visited Mar. 10, 2025) ("[A] great need is defined not only in terms of one's physical health needs, but also in terms of one's spiritual and emotional needs . . . .").
161. Mamzer, JEWISH VIRTUAL LIBRARY, https://www.jewishvirtuallibrary.org/ mamzer (last visited Mar. 10, 2025).
162. Rivkah Lubitch, Time to Face and Solve the Issue of the Mamzer, HADASSAH-BRANDEIS INST. (May 23, 2014), https://www.brandeis.edu/hbi/blog/2014/0523-time.html.
163. Id.
164. Gitit Paz, The Fate of a Mamzer, THE ISR. DEMOCRACY INSTITUTE (Nov. 27, 2013), https://en.idi.org.il/articles/6724#:~:text=The%20mamzer%20is%20ostracized%20from,in %20the%20State%20of%20Israel.
165. 10. A Mamzer Fetus, PENINEI HALAKHA, https://ph.yhb.org.il/en/14-09-10 (last visited Mar. 10, 2025).
166. Joseph G. Schenker, The Beginning of Human Life, 25 J. ASSISTED REPROD. GENETICS 271, 274 (2008).
167. SCHIFF, supra note 71, at 159.
168. Id. (citing Babylonian Talmud, Yevamot 37a:5 (William Davidson ed., translated by Adin Even-Israel (Steinsaltz)), https://www.sefaria.org/Yevamot.37a.5?lang=bi&with= all&lang2=en, stating: "A pregnancy is generally noticeable only after three months have passed. Therefore, during the first three months after a woman is divorced or widowed, she may not remarry due to the possibility that she is pregnant.").
169. SCHIFF, supra note 71, at 159.
170. See generally Mordhorst-Mayer et al., supra note 67.
171. Id. at 1.
172. Original Responsa in Hebrew: Moshe Feinstein, Iggerot Moshe, Choshen Mishpat 2:73:8, HEBREW BOOKS, https://www.hebrewbooks.org/pdfpager.aspx?req=921&st=&pgnum= 307 (last visited Mar. 10, 2025); see also Mordhorst-Mayer et al., supra note 67.
173. SCHIFF, supra note 71, at 160.
174. Mordhorst-Mayer et al., supra note 67, at 6.
175. Id.
176. Id. at 7.
177. Id. at 8.
178. Id. at 11.
179. SCHIFF, supra note 71, at 158.
180. Id.
181. Id.
182. Barilan, supra note 75, at 116 (quoting Judah Ayyash, Responsa "Beth Yehuda," Even Ha-Ezer, Mark 14 (Hebrew)). See also Sefer Hassidim (Wistinetzky ed., 1891) Mark 5:14 (Hebrew).
183. Mordhorst-Mayer et al., supra note 67, at 13 (alteration in original) (citing Joel Jakobi, Mi-Neki'e Ha-Da'at She-B-Irushalaim. Ha-Rav Eliezer Jehuda Waldenberg, Zatzal [in Hebrew].).
184. Barilan, supra note 75, at 117.
185. Id.
186. See Mordhorst-Mayer et al., supra note 67, at 9.
187. Id. Note that Rabbi Shalomo Salman Auerbach also "allowed a woman who was raped to use a method to prevent a pregnancy due to the extreme emotional toll of carrying the fetus to term." Berkowitz, supra note 140, at 1138.
188. Mordhorst-Mayer et al., supra note 67, at 9.
189. Id. at 10.
190. SCHIFF, supra note 71, at 155.
191. Id.
192. Id.
193. Id. at 137.
194. Id. at 139.
195. Id.
196. Id.
197. Barilan, supra note 75, at 118.
198. Id. (quoting BenZionHai Uziel, Responsa "Mistei Uziel," Hoshen Mishpat, Mark 46 (Hebrew)).
199. Id.
200. Id.
201. Mordhorst-Mayer et al., supra note 67, at 13-14 (quoting Eliezer Waldenberg, Tzitz Eliezer, Part 13, Siman 102 (June 8, 1975), http://www.hebrewbooks.org/ pdfpager.aspx?req=14512&st=&pgnum=225).
202. Barilan, supra note 75, at 173.
203. Yosef Bitton, Rabbi Obadia Yosef and the Power of Halakhic Leniency, HALAKHA OF THE DAY (Oct. 10, 2013), https://halakhaoftheday.org/2013/10/10/rabbi-obadia-yosef-and-thepower- of-halakhic-leniency.
204. Id.
205. Yehiel Kaplan, Mercy in American Law: The Promise of the Adoption of the Outlook of Jewish Law, 37 TOURO L. REV. 1193, 1240 (2021).
206. SCHIFF, supra note 71, at 266.
207. Id.
208. Barilan, supra note 75, at 138.
209. Id.
210. Nomi Kaltmann, Jewish Law Invites Complex Questions On Abortion, RELIGION UNPLUGGED (Sept. 23, 2022), https://religionunplugged.com/news/2022/9/22/jewishlaw- invites-complex-questions-on-abortion.
211. Resolution on Right to Legal Abortion in the United States, RABBINICAL ASSEMBLY (2021), https://www.rabbinicalassembly.org/story/resolution-right-legal-and-accessibleabortion- united-states-0; see also Resolution on Reproductive Freedom in the United States, RABBINICAL ASSEMBLY (May 2012), https://www.rabbinicalassembly.org/story/resolutionreproductive- freedom-united-states.
212. CJLS Update on Abortion, RABBINICAL ASSEMBLY, https://www. rabbinicalassembly.org/story/cjls-update-abortion (last visited Mar. 10, 2025).
213. Id.
214. Id.
215. Resolution on Reproductive Freedom in the United States, supra note 211.
216. Id.
217. Conservative Rabbis Strongly Condemn U.S. Supreme Court Decision to Overturn Abortion Rights, RABBINICAL ASSEMBLY (May 2, 2022), https://www.rabbinicalassembly.org/ story/conservative-rabbis-strongly-condemn-us-supreme-court-decision-overturnabortion- rights.
218. Rabbis from Across the Country Join Local Leaders to Stand for Abortion Rights, RABBINICAL ASSEMBLY (Nov. 9, 2022), https://www.rabbinicalassembly.org/story/rabbisacross- country-join-local-leaders-stand-abortion-rights.
219. Julie Zupan, What is the Reform Jewish Perspective on Abortion?, REFORM JUDAISM, https://reformjudaism.org/learning/answers-jewish-questions/what-reform-jewishperspectiveabortion#:~: text=Due%20to%20our%20fundamental%20belief,ultimately%20be %20made%20by%20the (last visited Mar. 10, 2025).
220. Id.
221. Id.
222. Reproductive Health Rights, RELIGIOUS ACTION CTR., https://rac.org/issues/reproductive-health-and-rights (last visited Feb. 10, 2025).
223. Id.
224. B.F. MUSALLAM, SEX AND SOCIETY IN ISLAM: BIRTH CONTROL BEFORE THE NINETEENTH CENTURY 59 (Cambridge Univ. Press 1983).
225. Younas, supra note 21.
226. Id.
227. Id.
228. Id.
229. Id.; see Khaled Abou El Fadl, Islam and the Challenge of Democratic Commitment, 27 FORDHAM INT'L L.J. 4, 26 (2003) ("Particularly after the age of mihna the [fiqh scholars] were able to establish themselves as the exclusive interpreters and articulators of the Divine law. . . . Although ostensibly about a theological dispute concerning whether the Qur'an was created or eternal (uncreated), in reality, the inquisition was a concerted effort by the State to control the juristic class and the method by which Shari'ah law was generated. Ultimately, however, the inquisition failed and, at least until the modern age, the jurists retained near exclusive monopoly over the right to interpret the Divine law.").
230. John Nawas, Mihna, OXFORD BIBLIOGRAPHIES (July 30, 2014), https://www.oxfordbibliographies.com/display/document/obo-9780195390155/obo- 9780195390155-0205.xml.
231. Asifa Quraishi-Landes, The Sharia Problem with Sharia Legislation, 41 OHIO N.U.L.R. 545, 550 (2015).
232. See Id.
233. Jonathan E. Brockopp, Taking Life and Saving Life: The Islamic Context, in ISLAMIC ETHICS OF LIFE: ABORTION, WAR, AND EUTHANASIA 1, 6 (Jonathan E. Brockopp ed., 2003).
234. Id. at 6.
235. Quraishi-Landes, supra note 231, at 550.
236. Id.
237. El Fadl, supra note 229, at 26; see also Quraishi-Landes, supra note 231, at 550.
238. Marion Holmes Katz, The Problem of Abortion in Classical Sunni fiqh, in ISLAMIC ETHICS OF LIFE: ABORTION, WAR, AND EUTHANASIA 25, 31 (Jonathan E. Brockopp ed. 2003) [hereinafter Katz, Problem of Abortion].
239. Donna Lee Bowen, Contemporary Muslim Ethics of Abortion, in ISLAMIC ETHICS OF LIFE: ABORTION, WAR, AND EUTHANASIA 51, 59 (Jonathan E. Brockopp ed. 2003).
240. Younas, supra note 21.
241. Id.
242. Note, portions of this section been adapted from my own publication, Rabea Benhalim, Contract Customization, Sex, and Islamic Law, 108 MINN. L. REV. 1861 (2024).
243. KHALED ABOU EL FADL, REASONING WITH GOD: RECLAIMING SHARI'AH IN THE MODERN AGE 356, 380 (2014); see also FRANK VOGEL, ISLAMIC LAW AND THE LEGAL SYSTEM OF SAUDÍ: STUDIES OF SAUDI ARABIA 4-5 (2000).
244. EL FADL, supra note 243, at 380 ("Shari'ah is the ideal, immutable, and eternal laws of goodness, justice, beauty, and ultimately, divinity as conceived in God's mind . . . . fiqh is the human effort to reach the ideal.).
245. Id.
246. Id.
247. Id.; see also, Anver Emon, On Reading Fiqh, in THE OXFORD HANDBOOK OF ISLAMIC LAW 45-74 (Anver M. Emon & Rumee Ahmed eds., 2018).
248. HANS WEHR, A DICTIONARY OF MODERN WRITTEN ARABIC: ARABIC-ENGLISH 466 (J. Milton Cowan ed., Cornell Univ. Press 2d ed. 1966); Sharia: Islamic Law, YAQEEN INST. FOR ISLAMIC RSCH., https://yaqeeninstitute.org/what-islam-says-about/shariah#what-is-fiqh (last visited Mar. 11, 2025); see also EL FADL, supra note 243, at xxxii, ("[T]he broad meaning of Shariah is the way or path to well-being or goodness, the life source for well-being and thriving existence, the fountain or source of nourishment, and the natural and innate ways and order created by God.").
249. JUDY MACFARLANE, ISLAMIC DIVORCE IN NORTH AMERICA: A SHARI'A PATH IN A SECULAR SOCIETY 26 (Oxford Univ. Press 2012).
250. Id.
251. Id.
252. Id.
253. Other minority denominations of jurisprudence also exist, such as the Zaydi and Isma'ili denominations.
254. EL FADL, supra note 243, at xliii. Throughout Islamic history many schools of jurisprudence have existed, with at least nineteen schools existing in the historical record. However, due to various historical circumstances the five major schools dominate almost all of Islamic law today. See Mona Rafeeq, Rethinking Islamic Law Arbitration Tribunals: Are They Compatible with Traditional Notions of American Justice?, 28 WIS. INT'L. L. J. 108, 118-19 (2010).
255. Mariam Sheibani, Amir Toft& Ahmed El Shamsy, Classical Period: Scripture, Origins, and Early Development, OXFORD HANDBOOK OF ISLAMIC LAW 403, 420-21 (Anver M. Emon & Rumee Ahmed eds., 2018).
256. See Brinkley Messick & Joseph A. Kéchichian, Fatwā. Process and Function, OXFORD ENCYCLOPEDIA OF THE ISLAMIC WORLD (2009) (available at https://www. oxfordreference.com/display/10.1093/acref/9780195305135.001.0001/acref-9780195305135-e- 0243?rskey=jc3JFb&result=1); see also ASIFA QURAISHI-LANDES, Sharia and Diversity: Why Some Americans are Missing the Point, INST. FOR SOC. POL'Y AND UNDERSTANDING (2013), https://www.ispu.org/wpcontent/uploads/2016/08/ISPU_Report_ShariaDiversity_Final _web.pdf
257. Messick & Kéchichian, supra note 256.
258. Id.
259. Quraishi-Landes, supra note 256, at 5; see also Messick & Kéchichian, supra note 256, at 6 ("The basic recommendation is that the questioner follow the advice of a single just person . . . . In some settings, questioners dissatisfied with a mufti's response could seek out a second mufti for another fatwa.").
260. Quraishi-Landes, supra note 238, at 5 (emphasis omitted).
261. Gene Outka, Foreword to ISLAMIC ETHICS OF LIFE: ABORTION, WAR, AND EUTHANASIA viii (Jonathan E. Brockopp ed. 2003).
262. Id.
263. Brockopp, supra note 233, at 3.
264. Marion Holmes Katz, Abortion, ISLAMIC ETHICS OF LIFE: ABORTION, WAR, AND EUTHANASIA 21 (Jonathan E. Brockopp ed., 2003) [hereinafter Katz, Introduction]; Katz, Problem of Abortion, supra note 238, at 28-29.
265. Brockopp, supra note 233, at 16.
266. Id.
267. Katz, Problem of Abortion, supra note 238, at 28; Qadi Zadeh, Nata'ij al-fakar fikashf al-rumuz wa'l Asrar, Cairor: n.p. 1389 (1970).
268. Katz, Problem of Abortion, supra note 238, at 28.
269. Badawy A B Khitamy, Divergent Views on Abortion and the Period of Ensoulment, 13 SULTAN QABOOS U. MED. J. 26 (2013).
270. Id.
271. See Joseph Schacht, Mirāth, 7 ENCYCLOPAEDIA OF ISLAM 106-13 (Brill Acad. Publishers 2d ed. 1991).
272. What is Ghurra? When is it Given? Who Gives it? Who is it Given to?, QUESTIONS ON ISLAM (Feb. 1, 2017), https://questionsonislam.com/question/what-ghurra-when-it-givenwho- gives-it-who-it-given (describing differences amongst the schools as to the ghurra amount). Today, the ghurra would amount to about $4,000; see also IBN QUDAMA, AL-MUGHNI VIII 404 (n.d.); WAHBA AZ-ZUHAYLI, AL-FIQHU'L-ISLAMI VI 364. This is akin to the slayer rule in the United States, which prohibits a murder from inheriting from their victim.
273. Katz, Problem of Abortion, supra note 238, at 27.
274. Id. at 28-29 (citing QADI ZADEH, NATA'IJ AL-FAKAR FI KASHF AL-RUMUZ WA'L ASRAR (Cairor: n.p. 1389 (1970))).
275. Katz, Problem of Abortion, supra note 238, at 29 (citingABU'L-WALID IBN RUSHD, BIDAYAT AL-MUJTAHID WA NIHAYAT AL-MUQTASID 2:408 (Cairo: n.p. 1353 AH/1935 CE)).
276. Katz, Problem of Abortion, supra note 238, at 29.
277. Id.
278. Id.
279. Id.
280. See Section III.A.C for a discussion on the permissible exceptions for abortion under Islamic law.
281. Thomas Eich, Induced Miscarriage in Early Maliki and HanafiFiqh, 16 ISLAMIC L. AND SOC'Y 302, 316 (2009).
282. Id.
283. Id.
284. Id. (citing SARAKHSĪ, KITAB AL-MABSŪT 26:89; MĀLIK, MUWATTA' 2:856; SAHNŪN, MUDAWWANA 6:412; ABŪ 'ABD ALLĀH MUHAMMAD B. AL-HASAN AL-SHAYBĀNĪ, KITĀB AL-A'SL (Abū al-Wafā' al-Afghānī, ed.)); (Haydarabad: MaTba'at Majlis Dā'irat al-Ma'ārif al-'Uthmāniya (1973) 4.2:462-64).
285. Eich, supra note 281.
286. Id. at 325.
287. Id. at 317.
288. Id.
289. Katz, Problem of Abortion, supra note 238, at 28.
290. Id. at 31.
291. SAHNŪN, MUDAWWANA 3:6, 3:412-13; see also Younus Y. Mirza, Remembering the Umm al-Walad: Ibn Kathir's Treatise on the Sale of the Concubine, in CONCUBINES AND COURTESANS: WOMEN AND SLAVERY IN ISLAMIC HISTORY 297, 302 (Matthew S. Gordon & Kathryn A. Hain eds., 2017).
292. Eich, supra note 281, at 325 (citing JAŞŞĀ'Ş , AHKĀM AL-QUR'ĀN 3:281; Fa-ammā al- 'alaqa allatī kāna minhā al-walad fa-mustahīl an yushāhidahā insān qabla kawn al-walad minhā mutamayyizatan min al-'alaqa allatī lam yakun minhā walad).
293. Pregnancy Tests, CLEARBLUE, https://www.clearblue.com/pregnancy-tests/earlypregnancy- testing (last visited Feb. 11, 2025).
294. Peter Morales-Brown, What Are the Average Miscarriage Rates by Week?, MED. NEWS TODAY (last updated Dec. 21, 2023), https://www.medicalnewstoday.com/articles/322634; https://www.ccrmivf.com/blog/chemical-pregnancy-loss.
295. Id.
296. Rafaqat Rashid, Classical Muslim Scholarly Interpretations of When Pregnancy Begins, 2 J. BRIT. ISLAMIC MED. ASSOC. 14, 18 (2019), https://www.jbima.com/article/classicalmuslim- scholarly-interpretations-of-when-pregnancy-begins ("Most Muslim jurists consider life to begin at the time when the nutfa establishes itself in the womb.").
297. See Quran 23:13, "[T]hen we placed it as a mixed drop in a secure place."
298. See Michelle Ralston & Elizabeth Podrebarac, Abortion Laws Around the World, PEW RSCH. (Sept. 30, 2008), https://www.pewresearch.org/religion/2008/09/30/abortionlaws- around-the-world.
299. Roe v. Wade, 410 U.S. 113, 163 (1973).
300. Eich, supra note 281, at 306.
301. Id.
302. Id.
303. Id.
304. Id
305. Only a few jurists rule that the Quranic prohibition on killing children applied directly to the case of abortion.
306. Katz, Problem of Abortion, supra note 238, at 26.
307. Id.
308. Katz, Problem of Abortion, supra note 238, at 30 (citing QURAN 23:12-14).
309. Id. at 30.
310. Sarah Haj-Maharsi, Abraham, Abortion, and Abbott's Texas: How the Texas Trigger Law Disproportionately Burdens the Religious Freedoms of Muslim Women, 61 HOUS. L. REV. 613, 627 (2023); see Al-Bukhari, Sahih, 3332 (also 3208, 6594, 7454); see also Muslim, Sahih, 1616; Ibn Majah, Sunan, 1:29; al-Tirmidihi, Sunan 3:302.
311. Id.
312. See Muslim, Sahih, 2644, https://sunnah.com/muslim:2644.
313. Katz, Problem of Abortion, supra note 238, at 30-31. Al-Bukhari, Sahih, 3332 (also 3208, 6594, 7454); Muslim, Sahih, 1616; Ibn Majah, Sunan, 1:29; al-Tirmidihi, Sunan 3:302.
314. See e.g. Sh. Omar Suleiman, Islam and the Abortion Debate, YAQEEN INST. FOR ISLAMIC RSCH. 12 (2017), https://yaqeeninstitute.org/wp-content/uploads/2017/03/ Islam-and-the-Abortion-Debate-Final.pdf.
315. Katz, Problem of Abortion, supra note 238, at 30.
316. Id. at 30 (citing Josef van Ess, Theologie und Gesellschaftim 2. und 3. Jahrhundert Hidschra. Eine Geschichte des religiösen Denkens im frühen Islam, 6 vols. (Berlin/New York: Walter de Gruyter, 1992), 3:296-302 and 369-80). See also vol. 4 (1997), 513-20. Prior to the 3rd century AH, only a few authors use the concept. See, e.g., Tafsīr Muqātil b. Sulaymān, 3:153.
317. Eich, supra note 281, at 328; Tabari, Jāmi' al-bayān, 18:9ff.; Quran 23:14.
318. Eich, supra note 281, at 328.
319. Id.
320. Id.; see van Ess, supra note 316, at 4:513.
321. Eich, supra note 281, at 328.
322. Id. (citing Tafsīr Muqātil b. Sulaymān, 2:542 and Abū Ja'far Muhmmad b. Jarīr al- Tabarī, Jāmi' al-bayān 'an ta'īl āy al-Qur'n. 30 vols. (2d ed., Cairo: Muştafā al-Bābī ensoulal- Halabī 1373/1954), 15:125 to Fakhr al-Dīn ar-Rāzī's summary of the exegesis to that passage. The Shī'ī al-Qummī (d. 4th century), Tafsīr al-Qummī, 2:22 does mention the soul, but does not mention the soul as a means by which God honors humankind).
323. Jaşşāş, Ahām al-Qur'ān, 3:279.
324. Id. at 3:278f.
325. Eich, supra note 281, at 329.
326. Id. at 330.
327. Id.
328. Id. at 331.
329. Id. at 332.
330. MUSALLAM, supra note 224, at 58.
331. See ABDEL RAHIM OMRAN, FAMILY PLANNING IN THE LEGACY OF ISLAM 174-75 (1992). See also Nurdeen Deuraseh, Is Birth Control Permissible by Islamic Law (Shari"ah)?, 18 ARAB L.Q. 90 (2003). Numerous Hadith describe the permissibility of coitus interrupts, which scholars then extended to include other forms of contraception.
332. See OMRAN, supra note 331, at 174-75. Dariusch Atighetchi, The Position of Islamic Tradition on Contraception, 13 MED. & L. 717, 719-20 (1994).
333. MUSALLAM, supra note 224, at 58.
334. Id.
335. Id.
336. Id.
337. Id.
338. Perihan Elif Ekmekci, Abortion in Islamic Ethics, and How it is Perceived in Turkey: A Secular, Muslim Country, 56 J. RELIGION & HEALTH 884, 884-95 (June 1, 2018) (citing Kiarash Aramesh, Abortion: An Islamic Ethical View, 6 IRAN J. ALLERGY, ASTHMA & IMMUNOLOGY 29 (Feb. 2007)), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5215975/ pdf/nihms838058.pdf.
339. Eich, supra note 281, at 317.
340. Katz, Problem of Abortion, supra note 238, at 29; citing Ibn Hazm, Muhalla, 11:242.
341. Younas, supra note 21.
342. Id.
343. Rather, this opinion is supported "by many of the foremost Hanafiauthorities, such as Hussām al-Dīn ibn Māza (d. 536 AH/1141 CE), Radī al-Dīn al-Sarakhsī (d. 575 AH/1175 CE), Jamāl al-Dīn al-Ghaznawī (d. 593 AH/1196 CE), Zayn al-Dīn al-Rāzī (d. 666 AH/1267 CE), 'Abd Allāh ibn Mahmūd al-Mawşilī (d. 683 AH/1284 CE), Fakhr al-Dīn al- Zayla'ī (d. 743 AH/1343 CE), Qiwām al-Dīn al-Kākī (749 AH/1348 CE), Jalāl al-Dīn al- Khawārizmī (d. 767 AH/1365 CE), Kamāl ibn al-Humām (d. 861 AH/1457 CE), Muhyī al- Dīn Jawīzāda (d. 954 AH/1547 CE), Muhammad ibn 'Alī al-Haşkafī (d. 1088 AH/1677 CE), and several others." Id. (footnotes omitted).
344. Id. (footnotes omitted).
345. Id. at n.19 (citing Muhammad ibn al-Hasan al-Shaybānī, AL-A'ŞL (Mehmet Boynūkālin ed., Beirut: Dār Ibn Hazm, 2012), 1:296, 4:415, 481, 5:144).
346. Younas, supra note 21.
347. Id.
348. Id.
349. See Bowen, supra note 239, at 65.
350. Id.
351. Id.
352. See Younas, supra note 21.
353. Id.
354. Katz, Problem of Abortion, supra note 238, at 30.
355. See Ibn Juzzay, al-Qawâneen al-Fiqhiyya 141.
356. Mohammed A. Albar, Induced Abortion from an Islamic Perspective: Is it Criminal or Just Elective?, 8 J. OF FAMILY & COMMUNITY MED. 25 (Dec. 2021), https://www.ncbi.nlm. nih.gov/pmc/articles/PMC3439741/pdf/JFCM-8-25.pdf; Mohammad Ali Al-Bar, Abortion: Safi'i Perspective, in ABORTION 147, 150-51 (Alireza Bagheri ed., 2021).
357. Adil Salahi, Scholar of Renown: Professor Mustafa Al-Zarqa, ARAB NEWS (June 12, 2001), https://www.arabnews.com/node/212596. Zarqa is considered by some to "rank among the top ten Islamic scholars of the twentieth century." Id.
358. Rafaqat Rashid, Classical Muslim Scholarly Interpretations of When Pregnancy Begins?, JKN FATAWA 1, 29 (Mar. 2020), https://jknfatawa.co.uk/wp-content/uploads/2020/03/ FIqh-on-Embryology.pdf.
359. Hamza Yusuf, When Does a Human Become Human?, RENOVATIO (June 22, 2018), https://renovatio.zaytuna.edu/article/when-does-a-human-fetus-become-human (quoting Shams al-Dīn Muĥammad b. Abī al- Abbās Aĥmad b. Ĥamzah b. Shihāb al-Dīn al- Ramlī, Nihāyat al-muĥtāj ilā sharĥ al-minhāj, 3d ed. (Beirut: Dār al-Kutub al- Ilmiyyah, 2002), 8:442.).
360. Current Mufti (most scion religious leader) of the Religious Council of the Caucasus.
361. Younas, supra note 21.
362. See, e.g., Noor Jaser & ChaΪma Ahaddour, Mapping the Islamic Ethical Discourse on Prenatal Diagnosis and Termination of Pregnancy: A Methodological Analysis, 7 J. ISLAMIC ETHICS 177, § 3.3 (Dec. 22, 2023), https://www.sciencedirect.com/org/science/article/pii/S246855342300009X.
363. Younas, supra note 21.
364. Id. (quoting Zubayr Ahmad Qāsmī, Khāndānī Manhūbabandī, in JADĪD FIQHĪ MABĀHITH 1:332 (Karachi: Idārat al-Qur'ān, 2009)).
365. Anonymous Question 2, Abortion of Pregnancy from Rape, ISLAM QUESTION & ANSWER (Apr. 5, 2001), https://islamqa.info/en/13317.
366. Omar Suleiman, Islam and the Abortion Debate, YAQEEN INST. FOR ISLAMIC RSCH. (Mar. 20, 2017) (quoting Hatem Al Haj, Abortion Due to Family Issues, www.drhatemalhaj. com), https://yaqeeninstitute.org/read/paper/islam-and-the-abortion-debate.
367. Younas, supra note 21 (citing, al-Qaradāwī, Fatāwa al-Mu'aşara, 2:609-13).
368. See id.
369. Yusuf, supra note 359.
370. Id.
371. Younas, supra note 21 (citing 'Abd Allāh ibn Bayya, Şinā' at al-Fatwā wa-Fiqh al- Aqaliyyāt (UAE: Masār lil-Tibā'a wa'l-Nashr, 2018), 577-78).
372. Younas, supra note 21 (citing Wahba al-Zuhaylī, al-Fiqh al-Islāmī wa-Adillatuhu (Damascus: Dār al-Fikr, 1985), 3:557).
373. See Maratun Saadah, Islamic Law Analysis of Criminal Sanctions for Abortion in the Criminal Code: A Call for Reform, 58 PSYCH. & EDUC. 5398, 5401 (2021).
374. YUSUF AL-QARADHAWI, 3 FATWA-FATWA KONTEMPORER 105 (Gema Insani 1995).
375. Bowen, supra note 239, at 64.
376. Id.
377. Younas, supra note 21.
378. Id.
379. See Bowen, supra note 239, at 69.
380. Id
381. Id.
382. For example, a recent case in Texas ruled that a pregnant woman did not fall under the medical exception to abortion, despite the severe fetal anomalies of the fetus and strong likelihood that carrying the pregnancy to term would limit her ability to carry future pregnancies. See J. David Goodman, Abortion Ruling Keeps Texas Doctors Afraid of Prosecution, N.Y. TIMES (Dec. 13, 2023), https://www.nytimes.com/2023/12/13/us/texas-abortiondoctor- prosecution.html.
383. Bowen, supra note 239, at 64.
384. See id. at 59.
385. Younas, supra note 21.
386. See AHMED FEKRY IBRAHIM, PRAGMATISM IN ISLAMIC LAW: A SOCIAL AND INTELLECTUAL HISTORY 17 (Syracuse Univ. Press 2017).
387. Ghazala Ghalib Khan, Application of Talfīq in Modern Islamic Commercial Contracts, 10 POLICY PERSPECTIVES 133, 133 (2013).
388. See id.
389. Younas, supra note 21 (citing al-Rāshidī, al-Mihbā??, 28).
390. Id.
391. Id. (citing Ibrāhīm ibn Mūsā al-Shātibī, al-Muwāfaqāt, ed. Mashhūr Hasan (Cairo: Dār Ibn 'Affān, 1997), 1:520).
392. SAHIH AL-BUKHARI 6125: Book 78, Hadith 152, https://sunnah.com/bukhari: 6125#:~:text=The%20Prophet%20(%EF%B7%BA)%20said%2C,do%20not%20repulse%20 (them%20).
393. See, e.g., Naureen Shameen, The Future of Abortion Rights in Islam, MUSLIM INSTITUTE, https://musliminstitute.org/freethinking/islam/future-abortion-rights-islam (last visited Mar. 13, 2025).
394. Abdulrahman Al-Matary and Jaffar Ali, Controversies and Considerations Regarding Termination of Pregnancy for Foetal Anomalies in Islam, 15 BMC MEDICAL ETHICS 10 (2014), https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-15-10.
395. Exodus 21:22-23.
396. See supra text accompanying note 126.
397. See Katz, Problem of Abortion, supra note 238, at 28. See Abu'l-Walid ibn Rushd, Bidayat al-mujtahid wa-ni-hayat al-muqtasid (Cairo: n.p. 1353 AH/1935 CE), 2:408.
398. See SCHIFF, supra note 71, at 28.
399. Babylonian Talmud, Yevamot 69b:11.
400. Reuven Kimelman, Another View: Jewish Law Doesn't Permit Abortion on Demand, BRANDEIS U.: JEWISH EXPERIENCE (July 11, 2022), https://www.brandeis.edu/jewishexperience/ social-justice/2022/july/abortion-judaism-kimelman.html.
401. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). "[V]iability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions . . . . at 23 or 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy." Id.
402. The Islamic Position on Abortion, AUSTL. NAT'L IMAMS COUNCIL (Aug. 16, 2019), https://www.anic.org.au/wp-content/uploads/2019/08/THE-ISLAMIC-POSITION-ONABORTION. pdf.
403. Bitton, supra note 203.
404. See Broyde, supra note 150.
405. See Mishnah, Tractate Oholot 7:6.
406. See Broyde, supra note 150.
407. Michelle Oberman, How Abortion Laws Do and Don't Work, 36 WIS. J.L., GENDER, & SOC'Y 163, 200 (2021) (footnotes omitted) (citing Interview with Rabbi Michael Broyde, Professor of Law, Emory Univ. Sch. L., at Stan. Univ. (Nov. 14, 2019)).
408. Id.
409. See Yehiel Kaplan, Mercy in American Law: The Promise of the Adoption of the Outlook of Jewish Law, 37 TOURO L.R. 1193, 1240 (2021).
410. Younas, supra note 21.
411. Cambridge Muslim College, Abdul Ghani bin Ismail al-Nublasi-Abdal Hakim Murad: Paradigms of Leadership, YOUTUBE (Apr. 20, 2021), https://www.youtube.com/ watch?v=BonYltAN7n8&list=PL5pbB3tC5zucaIlc9Fl1xkQNfEFQPp6NS&index=7.
412. SAHIH AL-BUKHARI 6125: Book 78, Hadith 152, https://sunnah.com/bukhari: 6125#:~:text=The%20Prophet%20(%EF%B7%BA)%20said%2C,do%20not%20repulse%20(th em%20).
413. Younas, supra note 21.
414. IBN QADUMAH, The Book of Witnesses, in AL-MUGHNI § 10, at 154, https://www. islamweb.net/ar/library/index.php?page=bookcontents&ID=7174&idfrom=7297&idto=72 97&flag=0&bk_no=15&ayano=0&surano=0&bookhad=0.
415. See, e.g., Eleanor Klibanoff, More Women Join Lawsuit Challenging Texas' Abortion Laws, TEXAS TRIBUNE (Nov. 14, 2023). Women in Texas have brought litigation challenging the state's abortion legislation on the grounds that they were unable to get the health care they needed during medically complex pregnancies. One woman stated: "When I'm sick, I don't call the attorney general for my antibiotics. I shouldn't have to call the attorney general for my basic health care." Id.
416. See Royer, supra note 63; see also Quraishi-Landes, supra note 231, at 550.
417. Kampeas, supra note 52.
418. Id.
419. Id. (quoting J. David Bleich).
420. See William Skipworth, Most OBGYNs Say Pregnancy-Related Mortality Worsened After Roe v. Wade Was Reversed, Poll Finds, FORBES (June 21, 2023), https://www.forbes. com/sites/willskipworth/2023/06/21/most-obgyns-say-pregnancy-related-mortalityworsened- after-roe-v-wade-was-reversed-poll-finds/?sh=6de9eefd55d5.
421. Ron Kampeas, Leading Orthodox Groups Cheered the End of Roe v. Wade. Many Orthodox Women Are Panicking, JEWISH TELEGRAPHIC AGENCY (June 30, 2022), https://www. jta.org/2022/06/30/politics/leading-orthodox-groups-cheered-the-end-of-roe-v-wademany- orthodox-women-are-panicking.
422. Younas, supra note 21.
423. The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomes of States Proposing New Abortion Restrictions, THE COMMONWEALTH FUND (Dec. 14, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/usmaternal- health-divide-limited-services-worse-outcomes.
424. Id.
425. Id.
426. Error! Bookmark not defined. Michelle Oberman, The Least Understood Impact of A bortion Bans, SLATE (Feb. 1, 2024, 3:28 PM), https://slate.com/news-andpolitics/ 2024/02/abortion-bans-forced-pregnancy-mental-health.html.
427. Id.
428. Id.
429. See Lisa Haddad, Unsafe Abortion: Unnecessary Maternal Mortality, REVS. IN OBSTETRICS & GYNECOLOGY (Spring 2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709326.
430. Id.
431. See id.
Copyright Brigham Young University, Reuben Clark Law School 2025