Whose body? Whose choice? Abortion and Women’s Reproductive Choice in Hanafi Law

The recent overturning of the 1973 Roe v. Wade decision on abortion has put women’s reproductive rights and autonomy in significant peril.  The decision has also generated a vehement debate within the American Muslim community on the permissibility of abortion in Islam.  As the Supreme Court deliberated on abortion rights in the Dobbs v. Jackson case, several Muslim organizations signed on to an amicus brief that was submitted to the Supreme Court to articulate a faith-based support for abortion. The brief argued that Islam holds that the fetus acquires personhood 120 days after conception, i.e. Islam as a religious tradition does not consider the fetus to be a full person from the time of conception.  The brief acknowledged that this is the predominant but not unanimous opinion on this issue, demonstrating the significant debates and diverse positions on abortion in the Islamic tradition. Citing Islamic law, the brief argued that Islamic law does in fact permit abortion given particular circumstances.[1] Muslim advocates, a national Muslim civil rights organization (and one of the signatories of the amicus brief) issued a statement arguing that since Islamic law permits abortion, upholding a law that life begins at conception would impose a religious view onto Muslim citizens of the US that is outside their religious tradition and thus violates their constitutional right to religious freedom.[2] Other Muslim groups, however, presented a very different understanding of Islamic law’s position on abortion.  Lamppost Education, an online Muslim educational institute, held a webinar after the Supreme Court issued the Dobbs v. Jackson verdict. The webinar featured Abdullah b. Hamid Ali, a Muslim scholar and faculty member at Zaytuna College (a Muslim liberal arts college in the US) and Ismail Royer, a Research and Program associate at the Religious Freedom Institute (RFI). The two speakers in the webinar covered a wide range of Islamic legal positions on abortion, arguing that the Roe v. Wade precedence violates Islamic law since it allows unconditional access to abortion, a position not supported by Islamic law.  Royer argued further that the values of individual autonomy and privacy that underlie the right to abortion in the US are fundamentally at odds with Islam.[3]  Both sides of this debate lay claim to the authority of Islamic law in locating themselves within the broader American debate on reproductive rights.  This paper thus turns to the historical Islamic legal tradition to explore the diverse positions on the issue of abortion and reproductive freedom. 

Legal texts discuss the issue of abortion (isqat al-haml) in different areas of the law.  As Marion Katz noted in her article on abortion in classical Sunni fiqh, intentional or deliberate abortion is not discussed much in legal text.  Jurists were more likely to discuss the accidental loss of a fetus either due to natural circumstances or the actions of another individual.[4]  There were several positions on the permissibility of abortion in the Hanafi legal school.  Hanafi jurists held that ensoulment of the fetus took place 120 days after conception. Abortion before this period was permissible but jurists were divided on whether this was a blanket position.  While several prominent Hanafi jurists held that abortion was permissible without a reason, others held that a valid reason was necessary for aborting the fetus even before ensoulment.  Wrongful termination of the pregnancy by another person was treated as a crime, somewhat akin to accidental killing.  Since the fetus did not have full legal personhood (as born individuals), the abortion did not constitute murder. The offender, however, still had to pay indemnity (ghurra) for their action given that they had ended a potential life. This paper engages with legal discussions in the Hanafi legal school on the legal status of the fetus and the consequences (if any) of abortion. In doing so, it explores these juristic debates around abortion as well as the punishment related to wrongful termination of the pregnancy to explore the juristic assumptions regarding reproduction and the legal personhood of the fetus.  These assumptions are important to unpack as they illuminate how the law viewed reproduction, the reproductive body, and subsequently women’s reproductive rights.  In addressing the issue of women’s reproductive rights in Islamic law, the paper will address the following questions: What is the status of the fetus as a legal person in Hanafi law? What is the relation between the fetus’ rights as a potential life and the rights of the pregnant person?  Did the law consider the woman to have a right over her own body and reproduction?  If so, how were her rights negotiated in relation to the rights of the fetus who depended on the woman’s body for its survival? Given that Islamic law is a patrilineal system, what was the status of the womb (and by extension the pregnant person’s rights) in relation to the gestating fetus that was considered the father’s heir?  Lastly, what was the nature of juristic discussions on the father’s role in reproductive decisions and what does this tell us about the reproductive rights of wives and concubines whose wombs were central to the continuation of the family? 

[1] Gelernter, E., Barnwell, L. and Shapiro, S. (2021) Faith-based groups amicus brief in Dobbs v. Jackson Women’s Health, Center for Reproductive Rights. Available at: https://reproductiverights.org/wp-content/uploads/2021/09/Faith-Groups-… (Accessed: 08 March 2025).

[2] Muslim advocates, “Supreme Court’s Radical Abortion Decision Threatens Muslims, Civil Rights,” press release, June 24, 2022, https://muslimadvocates.org/2022/06/supreme-courts-radical-abortion-dec…

[3] Lamppost Education Initiative, “Roe vs Wade Overturned: An Islamic Perspective with Dr. Abdullah Ali & Ismail Royer,” filmed June 2022, YouTube video, https://lamppostedu.org/roe-vs-wade/

[4] Marion Katz. “The Problem of Abortion in Classical Sunni Fiqh,” in Islamic Ethics of Life: Abortion, War, and Euthanasia, edited by Jonathan Brockopp, 25-50. University of South Carolina Press, 2003: 25.