I. Introduction and Roadmap

The Declaration of Independence proclaims that men are endowed by their Creator with unalienable rights to life and liberty.^[1] The inquiries into when life begins, and what liberties are necessarily exchanged for the preservation of such life, are questions our nation struggles to answer today.

Anticipating the overturning of Roe v. Wade, numerous states set up trigger laws—or bans on abortions—that would be enacted following a favorable opinion by the Court in Dobbs v. Jackson Women’s Health Organization.^[2] Among those resisting these trigger laws are groups of Jewish women who assert that restrictive abortion laws push a Christian understanding of the beginning of life, and consequently violate religious freedom.^[3] This Note explores how the implications of the Texas trigger law may apply to another religious group: Muslims. Part II commences by outlining the correlation between religious beliefs and views on abortion, and generally discusses the teachings of the Abrahamic faiths concerning when life begins. Part III introduces federal and Texas religious freedom protections and analyzes the Texas trigger law to determine whether it violates the religious freedoms of Muslim women, focusing on the Islamic stances on ensoulment, exceptions for abortions, and decrees of guardianship and inheritance. Part IV explores suggested changes to current Texas law that may alleviate the burdens placed on Muslims and help reconcile their faith with state policies. Finally, Part V concludes this Note with a brief summary.

II. Religious Landscape with Respect to Abortion

This Part explores the influence religion has on political stances concerning the legality of abortion and introduces the teachings of the three largest religions in America—Christianity, Judaism, and Islam—with respect to the beginning of human life.

A. Correlation Between When Life Begins and Views on Abortion

“For you is your religion, and for me is my religion.”
Quran 109:06

Religious conviction, or a lack thereof, underpins the abortion politics for many Americans.^[4] Among adults who deem religion extremely important in shaping their views on abortion, 81% believe abortion should be generally illegal.^[5] Alternatively, 87% of adults who do not think religion should be politically influential believe that “abortion should be legal in most situations.”^[6] A consensus about when human life begins has yet to be reached among religions, scientists, or politicians. However, one’s understanding of the commencement of human life has an impact on one’s stance concerning the morality and, consequently, the legality of abortion. Because some religions preach the sanctity of human beings and set specific timestamps that commence the cycle of life, it is important to acknowledge which religious norms shape political stances on abortion. This is particularly important in a nation like the United States, where, despite a dominant presence of Christian identity, there is no legally established religion. Understanding where America’s faithful diverge on issues of abortion, and what scriptures they cite to substantiate their beliefs, will illuminate which religions are emboldened by current abortion laws and which are consequently curtailed.

The American religious landscape is diverse and varies with respect to its beliefs on abortion. The three largest religious groups in the United States are Christians, Jews, and Muslims.^[7] Followers of these Abrahamic faiths disagree about the “human” status of unborn fetuses and resultantly hold different beliefs about the permissibility of abortion.

1. Christian and Catholic Beliefs

Currently, most Americans identify as Christian.^[8] Most Christian Americans are Protestant, with the largest populations belonging to Southern Baptist, Methodist, and Evangelical faiths.^[9] There is no uniform approach to abortion amongst the Protestant denominations. The Southern Baptist Church strongly opposes abortion and believes human life begins at the moment of fertilization.^[10] The United Methodist Church (UMC) does not have a definite stance on abortion; while believing in the sanctity of unborn human life and opposing abortion as a form of birth control and gender selection or eugenics, the UMC recognizes that “tragic conflicts of life” may justify abortion.^[11] Evangelicals generally view abortion as immoral at any point unless it is to prevent the death of the mother, and in some cases of rape and incest.^[12] The majority of Evangelical Protestants surveyed by the Pew Research Center in 2014 stated that abortion should be illegal in all or most cases.^[13] Among those who believe abortion should be largely illegal, 71% self-reported that they look to religion as a source for guidance on right and wrong, and 87% reported that religion is very important in their life.^[14]

Following Protestants, Roman Catholics made up roughly 21% of the American population in 2014.^[15] The Catholic Church generally has the firmest stance on abortion and is the main theological basis for the pro-life movement because it holds that potential life is given priority over stable life,^[16] and teaches that “the sanctity of all human life [extends] from conception to natural death.”^[17]

2. Jewish Beliefs

The belief that life begins at conception is not shared with the 1.7% of the U.S. population who identify as religiously Jewish.^[18] Rather, Jewish law teaches that for the first forty days of gestation a fetus is merely fluid, and regards a fetus as part of the mother for the duration of pregnancy.^[19] A soul, and thus personhood, is attributed to a fetus only upon birth.^[20] This belief backs the stance of many reform and conservative Jews who strongly support abortion with few exceptions.^[21] The National Council of Jewish Women, a 126-year-old organization that helped establish some of the first birth control clinics across the country, considers reproductive rights as a cornerstone Jewish issue and has publicly condemned the emerging wave of strict abortion bans.^[22] In response to the Dobbs decision, the Orthodox Union Advocacy Center, which identifies as a “public policy arm of the nation’s largest Orthodox Jewish organization” and represents almost one thousand American congregations, sent out a press release expressing that they cannot support absolute bans on abortion, nor unlimited access to it either.^[23] There remains considerable support for abortion access within Jewish communities, as evidenced by a 2014 study from the Pew Research Center showing that Jews overwhelmingly (83%) support abortion rights.^[24] Trigger bans have already carried implications for Jewish religious freedom, as groups in Kentucky, Indiana, and Florida argue that lawmakers are “imposing a Christian understanding of when life begins.”^[25]

3. Muslim Beliefs

Like Judaism, Islam teaches that stable life always holds precedent over potential life.^[26] Islam is the third-largest religion in the United States, with approximately 1% of the population identifying as Muslim.^[27] Islam, like many religions, sanctifies human life. The issue of abortion undeniably calls into question what it means to be alive and, even further, what it means to be human.

There are two major sects of Islam: Sunni and Shia. Under the Shia sect, abortion performed without reason and under normal circumstances, even at the earliest possible stage of pregnancy, is prohibited.^[28] As a default rule, Sunni Islam limits abortion but allows numerous exceptions for rape, incest, and to preserve the health and mental well-being of pregnant women.^[29] While many Christian denominations teach that life begins at conception and many Jews believe that birth is necessary for personhood, Islam teaches that ensoulment—the moment a soul enters the fetus—is the start of human life.^[30] Consequently, Islamic scholars center abortion discourse on the timing of ensoulment and disagree about whether this occurs at the 40th day of gestation or the 120th.^[31]

Texas mirrors the nation’s demographics with respect to Muslims—similarly making up 1% of the population.^[32] Nearly all Muslims in Texas believe in God with some degree of certainty—absolute or fair—and about 88% hold religion either to be very important or somewhat important in their life.^[33]

III. The Texas Trigger Law and Its Religious Freedom Implications

This Part analyzes the Texas trigger law to determine whether it violates the religious freedom of Muslim women. It introduces the substantive contents of the current abortion laws, the Texas Heartbeat Act and the Human Life Protection Act and dissects their respective procedural frameworks against a backdrop of state immunity. After a brief overview of the history of religious freedom legislation, it applies the four prongs of the Texas Religious Freedom Restoration Act to the religious expressions of Muslims under the Human Life Protection Act. Because the Texas Legislature curated the Heartbeat Act such that only civilians may enforce the law—and consequently evade lawsuits against state officials—this Note largely analyzes the Human Life Protection Act under the Texas Religious Freedom Restoration Act (TRFRA).

Under this analysis, the Islamic stances on ensoulment, exceptions for abortions, and decrees of guardianship and inheritance are all contrasted with the Texas Family Code, Estate Code, and adoption system to explore the difficulties imposed upon Muslim women who lack abortion access.

A. The Texas Heartbeat Act and Trigger Law

In 2021, the Texas Legislature passed Senate Bill 8 (the Texas Heartbeat Act)^[34] and its House of Representatives counterpart, House Bill 1280 (the Human Life Protection Act),^[35] to penalize abortions both civilly and criminally, as well as the providers who perform them after the detection of a fetal heartbeat (or approximately six weeks after gestation), absent a medical emergency. The Human Life Protection Act is described as the state’s “trigger law”^[36] because it contains provisions that ban abortion within thirty days of one of the following triggering events: a judgment by the U.S. Supreme Court overturning Roe v. Wade; the issuance of any other judgment by the U.S. Supreme Court giving the states the power to prohibit abortion; or the adoption of an amendment to the U.S. Constitution giving the power to prohibit abortion to the states.^[37] Thus, the Dobbs decision overturning Roe effectuated the act on August 25, 2022.^[38]

The substantive portions of both laws significantly restrict abortion access. The Texas Heartbeat Act exposes abortion providers to civil suits if they perform or induce abortions after the detection of a fetal heartbeat, or after failing to test for one.^[39] After which, abortions are not permitted unless prompted by a medical emergency—with no exemptions for pregnancies induced through rape or incest.^[40] The Human Life Protection Act does not provide a set window for when performing abortions becomes illegal, but states definitively that “[a] person may not knowingly perform, induce, or attempt an abortion” absent a life-threatening physical condition that is aggravated by pregnancy to the extent that it necessitates abortion.^[41] However, neither law authorizes initiating a cause of action against or prosecuting women who have received these illegal abortions.^[42]

Procedurally, the Heartbeat Act is enforced only through private civil suits.^[43] In an effort to invoke sovereign immunity, the law bars any officer or employee of any state or local governmental entity from enforcing the law.^[44] Instead, civilians may bring suits against persons who (1) perform or induce abortions in violation of the law; and (2) knowingly aid or abet the performance or inducement of abortion within four years of the abortion in question.^[45] If the claimant prevails, they are awarded injunctive relief such that the defendant is prevented from violating the abortion law, at least $10,000 in statutory damages for each abortion resulting from the violation of the law, and related costs and attorney’s fees.^[46] Due to its intricately woven procedural web, the Heartbeat Act survived a petition for injunctive relief to the U.S. Supreme Court, which denied an emergency application challenging the pre-enforcement of the Act.^[47] The resilient and unusual bill has since spurred scholarly commentary on its “sinister genius”^[48] and elicited a raised brow from Chief Justice Roberts, who felt that Texas aimed to insulate itself “from responsibility for implementing and enforcing the regulatory regime.”^[49]

Consequently, the bill’s procedural maze makes attacking the law virtually impossible and forces abortion providers to take a defensive approach to challenging the law. Further, a provision within the Act that was triggered by the overturn of Roe now dissolves all affirmative defenses that rely upon the imposition of an undue burden upon women seeking an abortion.^[50] This, in effect, leaves defendants the ability to challenge the Heartbeat Act solely based on its constitutionality; however, the authors of the Act limited defendants to assert only constitutional rights that are personal to them.^[51]

However, the Human Life Protection Act imposes criminal liability and, thus, requires involvement of a governmental agency, so Texas may not be able to shield itself entirely.^[52] This Act classifies any offenses to its text as a first degree felony if the offenses result in the death of an unborn child.^[53] Moreover, it enables the attorney general to file a civil action and collect a penalty of at least $100,000 per violation as well as recover attorney’s fees and costs.^[54] Additionally, the bill authorizes the appropriate licensing authority to revoke the license of any health care professional who performs, induces, or attempts an abortion that violates the law.^[55]

B. Brief History of Federal and Texas Religious Freedom

The Free Exercise Clause of the First Amendment protects the right to freely exercise one’s religion.^[56] In 1940, the Court incorporated the Free Exercise Clause into the Due Process Clause of the Fourteenth Amendment and clarified its stance that religious exercise is a protected fundamental right enforceable against both state and federal governments.^[57] For decades, Congress and the Court both stretched and restricted the reach of the Free Exercise Clause. The standard established in Employment Division v. Smith held that the right of free exercise “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”^[58] In response, Congress enacted the Religious Freedoms Restoration Act (RFRA) in 1993, intending to circumvent the balancing approach used in Employment Division by codifying an application of strict scrutiny to laws of general applicability if those laws imposed substantial burdens on free religious exercise.^[59] However, the Court ultimately found RFRA invalid as applied to the states in City of Boerne v. Flores.^[60] What ultimately emerged from the misalignment of the Court and Congress was an undeniable state interest in protecting religious exercise, exemplified by state legislatures enacting their own forms of RFRA to preserve the very religious freedoms that Congress had attempted to secure.

The Texas Legislature is an example. It wanted stronger religious freedoms for its citizens and so enacted the Texas Religious Freedoms Restoration Act (TRFRA) to prohibit the government and its agencies from placing a substantial burden on a person’s free exercise of religion unless that agency shows the application of that burden is the least restrictive means for furthering a compelling governmental interest.^[61] TRFRA largely mirrors RFRA, and courts opined that “there is no basis for distinguishing RFRA from TRFRA; the same requirement verbatim is in both.”^[62]

This sentiment behind TRFRA is traceable to the Texas Constitution, which declares that no authority, under any circumstances, ought to “control or interfere with the rights of conscience in matters of religion.”^[63] In fact, courts have opined that Article I, Section 6 of the Texas Constitution “provides greater protections for the free exercise of one’s religion than does the federal constitution.”^[64] Said plainly, “under TRFRA, a plaintiff must demonstrate (1) that the government’s regulations burden the plaintiff’s free exercise of religion; and (2) that the burden is substantial.”^[65] If the plaintiff satisfies that preliminary showing, the government can still prevail if it establishes that (3) its regulations further a compelling governmental interest; and (4) that the regulations are the least restrictive means of furthering that interest.^[66]

C. Texas Religious Freedoms Restoration Act Prongs

This Section introduces the prongs of a TRFRA inquiry. Beginning with sincerity, this Section overviews the religious basis for Muslim beliefs and breaks down the four schools of Sunni Islamic jurisprudence, presents Quranic citations that form the basis of scholarly interpretation, and compares where the four schools stand regarding when abortion is permissible and under what exceptions. The substantial burden inquiry focuses on how strict abortion restriction necessitates birth and consequently requires Muslim women to navigate an adoption system that is at odds with their religious practices, as Islamic rules for adoption and inheritance differ widely from the Texas Family Code and Texas Estates Code. This Section also highlights that the state’s compelling interests to protect the health of the mother and unborn child are echoed in Quranic decrees and argues that the Human Life Protection Act ultimately fails to deliver on the state’s interests because of its glaring lack of exceptions for rape and incest-related pregnancies, and its lack of inclusion of psychological and emotional issues as life-threatening physical conditions.

1. Sincerity

The initial prong of a TRFRA inquiry is whether the plaintiff’s sincere religious beliefs motivate the conduct. The statute defines “free exercise of religion” as “an act or refusal to act that is substantially motivated by sincere religious belief.”^[67] Determining whether a religious belief is sincere is a fact-specific inquiry, and the source of the plaintiff’s belief as well as the practicing behavior of the plaintiff may be evaluated.^[68]

Determining whether a Muslim’s religious beliefs are sincere requires locating the basis of the belief. Islamic law is derived from (1) the Quran; (2) tradition in the form of the recorded authentic sayings and precedents set by the Prophet Muhammed ﷺ^[69] (referred to as the sunnah) and prophetic decrees (the compilation or the records of the sunnah that are called hadith); and (3) progressive reasoning by analogy to exercise scholarly judgment where the Quran and the traditions are not explicit (ijtihad).^[70]

Where the Quran and prophetic tradition fall silent on a topic, the vast majority of Muslims look to one of four major schools of thought for answers.^[71] Between the ninth and eleventh centuries, four Muslim scholars–ibn Hanbal, abu Hanifa, Malek, and el-Shafei–attempted to systemize Islamic law into a comprehensive rational system to cover all possible societal and legal situations.^[72] Thus, the four prominent schools of Islamic law today, the Hanafi, Hanbali, Maliki, and Shafi’i schools of thought, bear their namesakes.^[73] These schools are followed by different Muslim states either in part or in their entirety.^[74] Although geographical regions tend to follow one school over another, most Muslims regard these four approaches as equally valid interpretations, as each school agrees on all essential aspects of the religion.^[75] Therefore, for most Muslims, a religious belief that is sourced within or substantiated by one of these sources of Islamic law and follows a teaching within one of the four schools of thought is valid and sincere.

In the context of abortion, the sunnah does not report any case where the Prophet Muhammed ﷺ directly addresses intentional abortion. However, in a case whereby a woman killed a pregnant woman, the Prophet required a payment of blood money (diya) for the life of the woman and a lesser payment for her unborn fetus (ghurra).^[76] The value of the ghurra was conventionally set at one twentieth of the full blood money.^[77] This ruling on what is partly a forced miscarriage illuminates that the legal status of the fetus is slightly inferior to that of a fully formed human being.

Although the Quran does not pointedly address abortion, there are Quranic verses that provide a sequential framework to the embryological and spiritual development of humans that illuminate the transition of a fetus from its subhuman status alluded to in the prior hadith into a full human being. The most foundational of these passages is Quran 23:12, which describes the stages of fetal development and provides the basic terminology for Islamic legal discussion regarding ensoulment:

We [i.e., God] have created man from an extract of clay, then we made him a clot in a sure depository; then We created the clot congealed blood and we created the congealed blood a morsel; then we created the morsel bone, and we clothed the bone with flesh; then we produced it another creation; and blessed be God, the best of creators.^[78]

The term “another creation” is widely believed to reference the ensoulment phase, marking the transition of the fetus into a human being.^[79]

A prominent hadith elaborates on this Quranic description of human development by specifying the period that elapses between each successive developmental change. The following is a report that the Prophet ﷺ stated:

"Each of you is gathered in his mother’s womb for forty days; then [he is] a clot of blood ('alaqa) for the same period . . . . Then God sends an angel who is commanded regarding four things: [his occupation,], his livelihood, (rizqihi), his span of life, and his felicity or damnation [in the afterlife]. Then the spirit is breathed into it . . . . "^[80]

Using these sources, amongst others, various positions amongst each school of thought emerged. However, despite the diversity of opinions amongst and within the various schools of thought, all Muslim scholars unanimously agree that abortion is prohibited—except in exceptional circumstances to save the life of the mother—after the 120th day of gestation.^[81] During the first forty days after conception, once the semen and ovum join in the womb, the majority of the schools of thought permit abortions if both spouses mutually agree.^[82] These schools further permit abortions during the first forty days in cases of rape, or physical or mental inability to raise the child.^[83] Departing from the majority, the Maliki school holds the strictest position that “[o]nce the womb contracts the semen, it becomes impermissible to interfere with it” and maintains that abortion is impermissible through every stage of pregnancy.^[84]

The remaining three schools of thought diverge in their holdings regarding abortion between forty and 120 days from conception. The Hanafi school is the most liberal of the three and harbors support for the opinion that abortion is permissible at any point before ensoulment at 120 days.^[85] Some Hanafis hold that abortion prior to ensoulment is a religiously neutral action that may be performed at will, while others require a compelling justification for doing so.^[86] The Maliki school is internally diverse, with some jurists holding that it is permissible to abort at any time before the 120-day mark, and others holding that abortion is permissible only until the fetus has begun to exhibit human features.^[87] In the Hanbali tradition, many hold that abortion is permissible only within the first forty days of gestation, while others allow abortion until ensoulment.^[88]

The schools of thought are largely unified regarding exceptions to abortion. Preservation of a mother’s life takes precedence over the fetus. The mother’s well-being extends not only to her physical health but to her mental well-being as well. Significant political events have influenced Islamic Counsels and scholars to rule leniently regarding rape. For example, the use of rape by religious extremists as “a weapon of war” in Algeria prompted the Algerian Islamic Supreme Council to issue a rape exception to abortion in 1998.^[89] Similarly in 1999, the Chief Mufti of the Palestinian Authority permitted Muslim women raped in Kosovo to take abortifacients to prevent pregnancy.^[90]

Today, many contemporary juristic assemblies prescribe to the position held by the Hanbalis: freely “permitting abortion up until forty days, and only up until 120 days when a pressing need is present (such as rape, or an extreme fetal deformity incompatible with life).”^[91]

Although there is no uniform belief within Islam regarding ensoulment or the permissibility of abortion, the Court made clear in Employment Security Division that “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”^[92] Thus, all Muslims need not subscribe to a sect or a single school of thought, nor will the split between the majority and minority positions with regard to the timing of ensoulment invalidate the sincerity of the belief. Moreover, when sincerity of a religious belief is challenged, the Supreme Court has explained that when a plaintiff draws a line, “it is not for [the Court] to say that the line . . . was an unreasonable one.”^[93]

It is evident that there is substantial Islamic jurisprudence to support the sincerity of the belief that the beginning of life occurs later than the sixth week of gestation and accordingly, Islam permits abortion for a longer period of time and even after abortion is prohibited, permits exceptions in greater circumstances than allowed by the Texas Heartbeat Act and the Human Life Protection Act.^[94]

2. Substantial Burden

Next, TRFRA provides that a government agency may not substantially burden a person’s free exercise of a religion unless the agency is acting in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.^[95] The TRFRA does not define how a governmental action may “substantially burden” one’s right to free religious exercise. However, in Barr v. City of Sinton, the Supreme Court of Texas advised that the focus of the substantial burden inquiry should be on the degree to which a person’s religious conduct is curtailed and the resulting impact on that person’s religious expression.^[96] “A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely restricted.”^[97] According to the Texas Supreme Court, a burden under TRFRA is substantial if it is “real vs. merely perceived, and significant vs. trivial.”^[98]

a. Curtailed Religious Conduct. Here, the Human Life Protection Act is a state ban on abortions that imposes a criminal felony conviction, fine, possible civil penalty, and the revocation of licensure for any medical professionals that perform abortions outside of emergency contexts.^[99] Moreover, the Texas Heartbeat Act further restricts the ability to have an abortion by equipping just about anyone (except a government agent) to bring a civil lawsuit against anyone involved in an abortion after the detection of a fetal heartbeat.^[100] Following the enactment of the Heartbeat Act, Brian Hughes, the Texas State Senator who introduced and authored the Heartbeat Act, stated that “life begins at conception” during an interview with CNN.^[101] In doing so, Hughes affirmed that the new abortion restrictions he penned undoubtedly stem from his Evangelical Christian understanding of the beginning of human life.

Unsurprisingly, the religious desire of Muslims to follow the abortion guidelines outlined by any of the four Sunni schools of thought is curtailed by laws that ban abortion through an imposition of a Christian understanding of the start of life. The absolute ban on abortion with limited exemptions burdens the free exercise of Islam, in which all Muslims believe that not only is it permissible to have an abortion within a certain time frame, but also that prohibitions on abortions should yield for circumstances of rape and incest. The current Texas law is more restrictive than even the Maliki position, which is the strictest of the schools of thought, limiting the permissibility of abortion to under forty days after gestation.^[102]

Viewing life through a Christian lens, the Texas Legislature invokes significant penalties to deter healthcare professionals from providing abortions and undoubtedly applies pressure to Muslim women to modify their religious conduct, which would otherwise permit an abortion in appropriate circumstances, and carry their pregnancy to term.^[103] For Muslim women who must bring a fetus to term under Texas law but are otherwise religiously permitted to abort a pregnancy induced by rape, incestuous relations, or to preserve her mental health, the burden imposed by the Texas trigger law is real and significant.

Some argue that the permissibility of abortion in Islam does not equate to a protected right, as abortion is neither religiously mandated nor encouraged.^[104] However, in determining whether an action is substantially motivated by sincere religious belief, “it is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the person’s sincere religious belief.”^[105] Thus, Muslims need not have an absolute religious right to an abortion in order for their free exercise to be burdened.

b. Resulting Impact on Religious Expression. A major impact resulting from banning abortion under the Human Life Protection Act is what the legislature precisely intends: birth. A presumed solution offered by states when faced with the issue of the birth of children to mothers who do not want to raise them is adoption. Here, by eliminating abortion access, the Heartbeat Act necessitates adoption as an alternative to abortion for women who do not want to raise their child, and thus further burdens Muslim women into placing their newborns into an adoption system that is fundamentally at odds with the Islamic approach to guardianship.

i. Conflicts with Islamic Guardianship Law. Islam regards adoption as a guardianship, where children are encouraged to be looked and cared after^[106] but may not be legally integrated into the family. Foster care plays an active role in Islam. Muhammed ﷺ was an orphan raised by his grandfather and, after his grandfather’s passing, was fostered by his uncle.^[107] Moreover, the Prophet also purported to adopt a son, Zayd,^[108] and raised him as his own, even giving him his name such that Zayd was referred to as “Zayd bin Muhammed” (Zayd son of Muhammed) until the Quranic rules regarding lineage association were revealed.^[109]

The Quran explicitly states that every person must retain their familial lineage by name and forbids changing an adopted child’s last name to match an adopting family:

Call them by [the names of] their fathers; it is more just in the sight of Allah. But if you do not know their fathers - then they are [still] your brothers in religion and those entrusted to you. And there is no blame upon you for that in which you have erred but [only for] what your hearts intended. And ever is Allah Forgiving and Merciful^[110]

The rationale behind these verses is that changing one’s last name unjustly severs a person from a connection to their biological roots and, in opposition with the teachings of Muhammed ﷺ, prevents learning enough about one’s lineage, which facilitates keeping ties of kinship.^[111]

These Islamic traditions directly conflict with the Texas Family Code, which requires severing the parent-child relationship between natural parent and child in order to create a new, legally equivalent, relationship between the child and adopted parent via adoption and allows for changing an adopted child’s name upon mere request.^[112] Moreover, the court, upon motion of either party or by its own motion, may seal the adoption records and bar access to their information except for good cause,^[113] thus, blocking any knowledge to be learned of one’s lineage. In fact, the Texas Supreme Court, in Little v. Smith, acknowledges that these procedures implemented by Texas Family Law courts are designed to “maintain the confidentiality of the identities of adoptees, their natural parents, and biological siblings.”^[114] Further, the Texas Supreme Court deemed that checking for inheritance claims from a biological parent was not good cause to circumvent these procedures.^[115] In addition to sealing adoption records, courts can issue new birth certificates for adopted children and seal the original.^[116] To access the original, an adoptee must turn eighteen and identify the names of each parent listed on the original birth certificate,^[117] effectively creating a frustrating cycle for Texans who are seeking their records to identify their parents, but must first identify the very people they seek before accessing their records.

ii. Conflicts with Islamic Probate. The contrasting approaches between Islamic and Texas law with regard to adoptions raise another issue: inheritance. Islam follows a model of forced succession, and inheritance is clearly and intricately outlined in the Quran; each ascendant, descendent, sibling, and spouse of the deceased have predetermined shares that are dependent on the existence of other family members.^[118] For example, if a father dies, the child’s share of his father’s estate fluctuates based on whether the father is survived by a spouse, other children, parents, and whether the child is male or female.^[119] Each Muslim is required to structure their will in accordance with these set frameworks—they are not merely default intestacy laws. Because the distinction between biological and adopted children is made clear in the Quran,^[120] foster children are implicitly excluded from inheritance. However, Muslims may bequeath a third or less of their aggregate estate to relatives who are not otherwise heirs under the Islamic rules of inheritance and will the remainder according to the Islamic inheritance percentages.^[121] Moreover, guardians may freely gift the foster child during life. This allows Muslim guardians to actively include foster children in their estate. Thus, under Islamic law, adopted children are entitled to inherit from their biological parents, may be gifted property from their adoptive parents inter vivos, and may inherit up to a third of the aggregate estate of their adoptive parents.

In contrast, the Texas Family Code, states that "[a]n adopted child is entitled to inherit from and through the child’s adoptive parents as though the child were the biological child of the parents.‘’^[122] Two-third of adults die without a will,^[123] meaning that it is likely that most adopted children, including those from Muslim parents, will inherit from their adoptive parents’ intestate. However, there is a caveat within the Texas Family Code and the Texas Estates Code that may allow judges to accommodate Muslim natural parents in applying Islamic intestacy law to the children they’ve given up for adoption. Section 161.206(b) of the Texas Family Code provides that “an order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides.”^[124] This is echoed in Section 201.054 of the Texas Estates Code, which states that an adopted child “inherits from and through the child’s natural parent or parents.”^[125] Therefore, Texas allows adopted children to inherit from and through their biological parents, granted there is not a decree issued by a court otherwise terminating the natural parent-child relationship, and, thus, removing the child’s right to inherit from the natural parents.

In theory, this caveat would allow a Muslim parent to ensure their natural child, despite being adopted to another family, inherits from them in accordance with Islamic law. Nonetheless, because adoption records are sealed by law in Texas,^[126] name changes are granted at will, and original birth certificates may be sealed until the adoptee turns eighteen, adopted children are unlikely to obtain the identity of their natural parents and natural parents may have difficulty locating their biological children under new names, which may render the inheritance rights meaningless—circling discussion back to the aforementioned legal conflicts between Islamic and Texas probate law.

Due to the clarity in which laws of inheritance and the decree of guardianship, unlike abortion for example, are addressed in the Quran, Muslims have a substantial interest in complying with these set-forth religious guidelines. This interest extends to ensuring that their children are placed with families who will respect and accommodate their faith by not changing the child’s name and by respecting Islamic inheritance laws. There is an additional argument that the current adoption framework in Texas severely restrict the religious exercise of Muslim women, particularly in ensuring their children end up with families who will agree to the conditions of Muslim adoption, or other Muslim families.

The Texas Adoption Resource Exchange (TARE) is an online search engine managed by the Texas Department of Family and Protective Services that helps match children awaiting adoption with prospective adoptive parents.^[127] TARE includes photos of the children and accounts for preferences that the seeking adoptive parents may have, such as the child’s race, gender, and special needs, but does not provide an option to narrow the search based on religion.^[128] Because the state system does not account for religious determination, Muslim families seeking to adopt Muslim children, and conversely, Muslim women seeking to place their children into Muslim families, need to consult alternative private networks. For example, the Muslim Adoption Network is a free adoption service that locates Muslim families for Muslim children in need of a home.^[129] Unfortunately, due to the limited availability of licensed Muslim foster parents, Muslim children who enter the system often cannot be placed in Muslim foster homes.^[130] This limited availability similarly arises on American Adoptions, another adoption network, where selecting “Muslim” as a preferred category for the adoptive family yields few results.^[131]

If Texas laws are so different from Islam—in allowing name changes and creating legal relationships within adopted families—and locating Muslim foster families is so difficult, is adoption really an option for pregnant Muslim women who cannot access abortion? By severely restricting abortion, Texas curtails Muslim women’s religious freedoms by forcing Muslim women to either give birth to a child they never intended to carry to term or engage with religiously incompatible adoption and probate systems.

3. Compelling Governmental Interest

Presuming that a plaintiff can satisfy that a sincerely motivated religious conduct has been substantially burdened by government action, the government can still prevail if it establishes that its regulations further a compelling governmental interest and that the regulations are the least restrictive means of furthering that interest.^[132]

The Texas Legislature states it has compelling interest from the outset of a woman’s pregnancy in protecting (1) the health of the woman; and (2) the life of the unborn child.^[133]

a. Health of the Woman. In this regard, Texas and Islamic law share compelling interests in the health of the woman, as the Quran explicitly declares that “[n]o soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child.”^[134] In furtherance of this interest, Islamic scholars have interpreted exemptions for women who were impregnated through rape or incest because of the severe toll both situations have on the well-being of the affected women.^[135]

In 2020, Texas reported the highest number of rapes in the country.^[136] When adjusting for the rate of rape per 100,000 inhabitants, Texas ranked 16th in the nation.^[137] Although the number of pregnancies that result from rape is not frequently reported, data from a 2010–2012 study indicated that nearly 2.9 million American women experienced rape-related pregnancy within their lifetime.^[138] Rape is often perpetrated by someone known to the victim and may even be a family member.^[139] In 1996, a study focused on the frequency of rape-related pregnancies observed that over 40% of rape-related pregnancies resulted from repeated assault rather than an isolated attack, and thus, occurred in a violent setting with ongoing abuse.^[140] This implies that rape-related pregnancy is closely linked with domestic and family violence. Because battered women are unlikely to readily disclose their abuse and remain caught in a cycle of violence, rape-related pregnancies can be isolating, dangerous, and high risk for adverse psychological outcomes.^[141] The trauma of rape can manifest in many physical and psychological responses; depression, anxiety attacks, post-traumatic stress disorder, self-harm, and eating disorders are all ways in which victims may cope.^[142] All of which can be detrimental to a woman during her pregnancy, and impact her life long term after birth. A 2016 study examined the relationship between unintended pregnancies that resulted in live birth prior to Roe and mental health in later life.^[143] The results suggested a “strong and persistent” relationship between having an unwanted pregnancy and poorer mental health outcomes later in life; for example, women who’d had such pregnancies were more likely to have experienced significant episodes of depression that lasted two weeks or more.^[144]

The Texas Heartbeat Act requires a physician who performs or induces the abortion of a pregnant woman to execute a written document specifying the medical condition the abortion is asserted to address and provide the medical rationale for the physician’s conclusion that the abortion is necessary to address said medical condition.^[145] Further, the Texas Abortion Facility Reporting and Licensing Act mandates physicians submit in monthly reports to the state health department whether any abortion was performed or induced because of a medical emergency and any medical condition of the pregnant woman that required the abortion.^[146]

What constitutes a “medical condition” under the Heartbeat Act is vague,^[147] but the Human Life Protection Act provides an exception for any “life-threatening physical condition” that is aggravated by or caused by a pregnancy that “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”^[148]

In limiting conditions that affect the health of the mother to solely life-threatening physical conditions, the legislature effectively excludes any mental or emotional health exemptions, or worse, may inadvertently drive women suffering from mental health conditions to behave in more drastic and dangerous ways to obtain a physician’s opinion that is sufficient to permit abortion. Thus, by not including an exemption for rape, the state undermines its interest in caring for the health of women by failing to account for the mental and emotional conditions of pregnant women that have experienced trauma. Moreover, the requirements outlined in the current abortion legislation serve more to surveil physicians and ensure they are complying with the abortion bans, rather than to support genuine concern for the mother’s condition.

b. Unborn Child. The state’s proclaimed interest in protecting unborn life is mirrored in Islamic texts. For example, Islam seeks to protect the life of the unborn and forbids abortions based on fear of poverty, stating "[d]o not kill your children for fear of poverty: We provide for them and for you. Surely killing them is a heinous sin."^[149]However, the importance attached to the sanctity of life should not peak in the womb, as unborn fetuses turn into children that deserve resources, care, and healthy mothers.

Additionally, the legislature states that the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity and to make an informed choice about whether to continue her pregnancy based on this information.^[150] However, any informed choice the woman makes is quashed by an absolute ban on abortion under the Human Life Protection Act, and, at best, is greatly suffocated within a six-week window under the Heartbeat Act. A normal menstrual cycle lasts typically between twenty-three and thirty-five days.^[151] The Texas Heartbeat Act prohibits abortions when a fetal heartbeat is detected, which can be as early as six weeks, or forty-two days.^[152] Thus, a two-day margin of menstrual irregularity is all that it would take for a woman who did not even know she was pregnant to be forced to give birth in the state of Texas. Between 14% to 25% of women have irregular menstrual cycles, meaning their cycles are shorter or longer than this described normal.^[153] Under these laws, many Muslim women will be forced to shorten their decision-making from the approximate four months granted by their faith in exchange for a window which might not even allow them to notice that they are pregnant.

4. Least Restrictive Means

Determining whether governmental action is within the least restrictive means available requires courts to evaluate available alternatives that achieve the same governmental interest.^[154]

Here, the governmental interest is protecting the health of the pregnant woman and the life of the unborn child. As discussed under the prior prong, Texas undermines its interest in protecting the health of the mother by permitting abortion only in most dire circumstances—when death or serious bodily injury is at stake. By accounting for zero exceptions that speak to the mother’s health, either psychological or otherwise, before her life is in danger, Texas fails to explore any alternatives to fulfill its interest in protecting the mother’s health.

Further, the Texas legislature has invoked every weapon in its arsenal to enforce the stringency of its stance on abortion. Abortion providers are exposed to simultaneous civil and criminal penalties. They may be sued by plaintiffs with no connection to the abortion recipient, prosecuted for a first-degree felony, and fined hundreds of thousands of dollars per abortion performed. Such strong threats to abortion providers effectively isolate women seeking abortion and eliminate their access to abortion. The Texas Legislature doubles down on this isolation with its structuring of the Texas Heartbeat Act by exposing not just medical providers to civil suit, but anyone who aids or abets in the act of abortion. In an era of increasing societal polarity, the Texas Legislature aims to turn neighbor against neighbor, incentivizing Texans to surveil one another in exchange for cash and covered legal fees.

Moreover, outright banning “conduct sincerely motivated by religious belief substantially burdens an adherent’s free exercise of that religion.”^[155] All adherents of Sunni Islam may seek religiously permissible abortions within set time frames, be exempt from prohibitions on abortions in instances of rape or incest, and promote broader notions of health that include mental and emotional well-being. However, through its strict abortion framework, Texas has stripped away any expression of these religious mercies by completely banning abortions, providing no exceptions for rape or incest-related pregnancies, and ignoring the impact that negative mental or emotional conditions may have on pregnant women.

IV. Potential Adjustments

To reduce the burden felt by Muslim women, and ultimately make abortion laws more equitable to all women, the Texas legislature and judicial system would need to make substantial changes to the existing systems.

First, the total abortion ban must be lifted, and any restrictions should be expanded to 120 days, which would encompass the maximum period for which an abortion may be permitted for Muslim women, as well as afford all women a longer time to become aware of the pregnancy and come to a decision. Delaying the ban on abortions to begin after four months would accommodate women who do not subscribe to the Christian belief that life begins at fertilization, which the Texas Legislature has propped its abortion regulation against. Such a delay would allow Muslim women to participate in the maximum 120-day grace period for abortion that many feel their faith provides them, and considering menstrual irregularity, women generally would have more time to know that they are pregnant, and, thus, have more time to decide if abortion is what they want.

However, realistically this would allow women to have abortions for up to four months into their pregnancy with no questions asked, which is more liberal than the trimester frameworks outlined in Roe, thus, it is unlikely Texas lawmakers would back a law that would regress their strong advances in restricting abortion.

Another change that would alleviate the burden placed on Muslim women and better reconcile Muslim beliefs with Texas law is to include exceptions for rape and incest and expand the “medical conditions” exemption to acknowledge dangers to the mental and emotional well-being of pregnant women.

Reconciling the conflicting principles between Islamic inheritance law and Texas probate law, as well as the differences between Islamic guardianship and Texas adoption, via judge-made exceptions that would, for example, allow denial of a name-change request of an adopted child born to a Muslim mother, may run the risk of Equal Protection challenges. Therefore, facilitating an easier method of placing children with Muslim families is likely a better approach to addressing religious compliance with Islamic guardianship and inheritance law. This will likely require a concerted effort from the Muslim community to become foster parents and thus increase the availability of Muslim families. Moreover, Texas should relax its standards for granting adult adoptees access to their original birth certificate. Doing so would allow Muslim birth parents and adoptees to locate each other and provide an opportunity to sort out inheritance in accordance with the Quran. Moreover, accessing one’s original birth certificate will also help Muslims fulfill the Prophet’s ﷺ guidance to know one’s kin. Easier access to original birth records is a goal shared by many Texas adoptees, as evidenced by the Texas Adoptee Rights Coalition (TXARC), which dedicates its mission to “restoring a right of all Texans: a right to obtain a copy of your own original birth certificate, without government restrictions, conditions, or alterations.”^[156] Currently, the TXARC is expecting to see an adoptee rights bill filed during the 88th Texas Legislative Session.^[157]

V. Conclusion

The current Texas abortion framework echoes the Christian belief that life begins at conception and consequently undermines the beliefs of other faiths, such as Islam, that proscribe abortion at a date later than fertilization. Authoring such strict legislation under Christian norms not only burden all women seeking abortions but causes a disproportionate impact upon Muslim women who must now struggle to meet the requisites of their faith and navigate state systems that are not designed for them. Ultimately, the incompatibility between Islam and Texas family and probate courts, coupled with the lack of eligible Muslim foster parents, leaves Muslim women with no meaningful alternative to abortion.

Sarah Haj-Maharsi