Document Type
Article
Publication
Brigham Young University Law Review
Year
2025
Citation Information
Rabea Benhalim, Agreeing to Disagree: Abortion Jurisprudence in Jewish and Islamic Law, 50 BYU L. Rev. 1217 (2025), available at https://scholar.law.colorado.edu/faculty-articles/1710.
Abstract
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.
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