The Boundaries of Abortion Law: Systems Theory from Parsons to Luhmann and Habermas

Mathieu Deflem
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This is a copy of an article in Social Forces 76(3):775-818, 1998.
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Please cite as: Deflem, Mathieu. 1998. “The Boundaries of Abortion Law: Systems Theory from Parsons to Luhmann and Habermas.” Social Forces 76(3):775-818.

[*] A previous version of this article was presented at the annual meeting of the American Sociological Association, Los Angeles, 1994. I thank Bernard Barber, Otomar Bartos, Mark Gould, Gary Marx, Fred Pampel, David Sciulli, Mary Vogel, and two referees of Social Forces for helpful comments on earlier drafts.


This article examines competing hypotheses on law derived from the theories of Talcott Parsons, Niklas Luhmann, and Jurgen Habermas in light of the recent history of U.S. abortion law, specifically the Supreme Court's rulings on abortion over the past two decades. The evidence I advance suggests that Luhmann's theory cannot explain how abortion law since 1973 has developed with the influence of certain nonlegal contexts. The perspectives of Parsons and Habermas, on the other hand, adequately grasp some of the outside influences on the legal abortion process Parsons's theory particularly shows its strength in accounting for the political influences on abortion law and the individualistic nature of the American legal system. Habermas's theory rightly emphasizes the delicate force of life world claims over the normativity of law as well as the relevance of a medical-technocratic reformulation of legal justifications. I conclude by arguing that sociological analyses of law should strive to conceptually elucidate the continuing struggles over and through law, and that they should recognize, particularly in light of growing multiculturalism, the loss of integrative force modern law continues to ascribe to itself.

I undertake an analysis of the recent history of U.S. abortion law on the basis of the sociological theories of law developed by Talcott Parsons, Niklas Luhmann, and Jurgen Habermas. This undertaking could arouse skepticism from the start, because the notion of boundary-maintaining systems, which the discussed perspectives employ in different ways, has in recent years become suspect for several reasons. Most critically, the theoretical foundations of systems perspectives have often been scrutinized in terms of a narrowly conceived functionalism, subject to the critique that the perspective is excessively preoccupied with equilibrium and social harmony and neglects the more dynamic and conflictual aspects of society. I will in this article, however, argue that systems-theoretical perspectives can be useful for sociological investigations of processes of social change and conflict. Yet for such an approach to be possible, some of the difficulties commonly associated with systems theories have to be overcome. A comparison of the theories of Parsons, Luhmann, and Habermas may prove beneficial in this respect for these theoretical perspectives are well known for their penetrating breadth, but also for their high level of abstractness, which may often have led to more confusion than clarification in discussing their relevance. I will therefore avoid an abstract theoretical discussion and instead investigate the potentials of the discussed perspectives through the analysis of an actual process of legal change, specifically the recent history of U.S. abortion law.

This article does not endeavor to offer a test of the suggested theories, for that enterprise would inevitably have to be undertaken at a theoretical level of debate. Based on the insight that sociological theories and concepts are, to quote from one of our discipline's most seminal contributions, "neither true nor false, [but] apt or inept, clear or vague, fruitful or useless" (Coser 1956:7), I will instead offer an empirical examination of testable hypotheses derived from the discussed theories. Specifically, the present examination, which I limit to constitutional rulings on abortion since the Supreme Court's famous decision in Roe v. Wade (1973), will in the first instance investigate how abortion law has evolved in the American context. Additionally, it will offer the basis for a discussion of the merits and limitations of the employed theories and their continued relevance for the sociology of law. The twofold intention of this article, then, is to develop a theoretically meaningful thesis on the evolution of abortion law and to address the relative merits and limitations of three variants in the systems-theoretical approach to law.

Parsons on the Functionality of the Legal System

Surprisingly, given the considerable influence of Parsons's work in modern sociology, his approach to law has been largely neglected. Although Parsons made only brief mention of law in some of his best known writings (e.g., Parsons 1951:269), he elaborately discussed the role of the legal system in five papers (Parsons 1952, 1959b, 1962a, 1968a, 1978) and two review articles (Parsons 1962b, 1977b). Law was also a central topic of concern in Parsons's writings on social evolution (Parsons 1964:350-353, 1971:18-20,62-64,1978:356-362). Furthermore, Parsons collaborated with the famous legal theorist Lon Puller, with whom he in the late sixties organized graduate seminars on "Law and Sociology" (Parsons 1968a:51, 1970a:867; see Sciulli 1992).(n1) To usefully outline Parsons's sociology of law, I first discuss his views on the subsystems and evolution of society.


Parsons's social theory is based on a systems perspective that clarifies how societies function, or how social order can be maintained (Parsons 1951, 1959a). Parsons employs the notion of system to refer to a whole consisting of interrelated parts that perform specific functions in relation to each other and contribute to the maintenance of the whole. Specifying the functions of adaptation (A), goal attainment (G), integration (I), and latency (L), Parsons contends that in modern societies four relatively autonomous subsystems have differentiated in order to perform one designated function: the economy (A), the political system (G), the societal community (I), and the fiduciary or values system (L) (Parsons 1959a, 1968b:180-88, 1977a:177-203). Each subsystem, Parsons asserts, contributes specialized functions to any other subsystem as well as to the entire social system (Parsons 1959a 16-29).

Parsons also outlines a particular conception of social evolution, which most critically suggests the dominance and growing universalism of the values system (Parsons 1966). Specifically, Parsons details an evolutionary process through which religious matters of the supernatural have gradually become differentiated from the social and natural world and brought about a functional separation into specialized secularized subsystems (Parsons 1964:510-14). Alongside of this process, Parsons contends, the values of the fiduciary subsystem have become more general and more universally applicable (Parsons 1963a 325-28). Parsons describes this evolution in terms of several pattern-variables, suggesting a trend for social actions to become increasingly based on individual achievements, universal standards of qualification, characteristics relevant for a specific activity, calculated considerations, and privately defined interests (Parsons 1951:101-12).


Parsons defines law as "any relatively formalized and integrated body of rules which imposes obligations on persons playing particular roles in particular collectivities" (Parsons 1959b:184). As such, the legal system is an essential component of the societal community. Beyond suggesting law's integrative function, Parsons devotes much attention to describe the role of law in relation to the other functionally differentiated subsystems of society in the AGIL scheme.

With respect to law's differentiation from the economic system, Parsons contends that the legal system cannot be adequately conceptualized with reference to the private interests that accompany the expansion of capitalism (Parsons 1978:15-22). Against Marxism, Parsons argues that the profit motive cannot be assumed to govern all spheres of society and that legal processes cannot be analyzed in the utilitarian terms of profit maximation. Rather, the legal system remains relatively autonomous from the economy, because it often negotiates (as in contract law) between different, privately defined interests that need to be balanced (Parsons 1965:95-96).

Parsons also maintains the relative autonomy of law with respect to the political system (Parsons 1978:23-32). In confrontation with the Weberian notion of law as a body of rules enforced in a political community, Parsons holds that the function of law making is indeed political, because it is assigned to the legislative branch of the polity, but ocher legal functions are exclusively adjudicated by the legal system (Parsons 1962a:59-62, 1962b:564, 1977a:358; see Sciulli 1992). In particular, the interpretation and sanctioning of legal norms are not primarily a function of political processes, but are relatively autonomously handled by courts and enforcement agencies (Parsons 1959b:179-81, 1962a:61-62). The political system observes the separation of powers as well as the legally guaranteed preservation of individual rights of self-determination so that, according to Parsons, the politicization of law, i.e., the instrumentalization of law by government for political purposes, is an empirical possibility, especially in nondemocratically organized societies, but not a theoretical necessity (Parsons 1959b:182-85, 1962a:61).

Parsons considers law, most importantly, as part of the societal community in the social system (Parsons 1962a:59, 1968a:53, 1978:32-44). The legal system specifically fulfills the following functions: legal interpretation in courts of law, application of laws through administrative and juridical decision making; sanctioning of laws by enforcement agencies; and specification of jurisdiction to determine when and where legal rules apply (Parsons 1960:9, 1962a:58-59). The legal profession is of special significance because by interpreting laws in specific cases legal professionals coordinate actions within the legal system under conditions set in the legislative process (Parsons 1952:378-79, 1977b:147-49).

The fiduciary system, finally, Parsons positions in relation to law in the sense chat he considers a society's values to provide the "subconstitutional stratum of the legal system" (Parsons 1978:48). In modern societies, Parsons asserts, religious laws have become secularized into procedural legal requirements formulated in terms of general principles that, above all, legitimize equality of participation through the institutionalization of rights and duties (Parsons 1964:350-53, 1970b:340-42). In the United States, in particular, a Protestant ethic and culture of free inquiry have largely shaped the American common law tradition, stressing the particularities of each court case and accounting for the individualistic nature of many laws. "The Puritan influence," Parsons (1978:49) writes, "was sufficiently important to justify putting the development of law together with that of the devotion to callings in economic enterprise and science."

Beyond the Parsonian System: Luhmann and Habermas on Law and Modernity

Niklas Luhmann and Jurgen Habermas are widely acclaimed to have elaborated unique theoretical projects on modern society. A peculiar, yet largely ignored, problem is posed by the fact that both Luhmann and Habermas critically, but in diverging ways, rely on the work of Parsons. To usefully assess the implications of this analytical issue for the sociological study of law, I situate Luhmann's and Habermas's theories in relation to the same themes discussed on Parsons.


Luhmann conceives the evolution of modern societies as a functional differentiation into self-referential or autopoietic systems (Luhmann 1982a, 1992a). This process of evolution, Luhmann contends, has been brought about by the disintegration of unified worldviews that secured the cohesion of social life in traditional communities. This weakened the spontaneous normative consensus in society and led to an increasing complexity of action alternatives. In modern societies, specialized social subsystems are precisely formed to reduce this complexity.

Luhmann describes the resulting state of modern subsystems with the term autopoiesis (Luhmann 1988b, 1992a), which refers to the fact that social subsystems are differentiated to such an extent that they operate independently from one another. Luhmann realizes that systems are related to one another inasmuch as each system can take up information from any other system, but he holds that this interchange can only occur on the basis of a selection process determined by each system's internal criteria As such, systems are cognitively open but operationally or normatively closed (Luhmann 1988a:19-23).

The legal system Luhmann conceives as one particular type of autopoietic social subsystem (Luhmann 1972, 1986, 1992b, 1993a). Specifically, the function of law is "the exploitation of conflict perspectives for the formation and reproduction of . . . generalized behavioral expectations" (Luhmann 1988b:347). In light of breaches of institutionalized expectations (violations of legal norms), the legal system counter-factually reaffirms those expectations (presented in the binary code lawful/ unlawful) in accordance with its conditional program (Luhmann 1989:140). Unlike the legal system's binary coding, which refers to its self-referential validity (normative closure), the conditional programming of the legal system takes into account whether or not certain factual conditions are met (cognitive openness). Law's conditional program is a purely cognitive matter in terms of an "if-then" structure: if specific legal conditions are fulfilled, then a certain legal decision will be reached (Luhmann 1972:174-79, 1988a:23-26).

The operational closure of the legal system is demonstrated by the fact that a violation of legal norms does not invalidate those norms (Luhmann 1989:140,148). On the contrary, Luhmann argues, people who break a law confirm the law. The cognitive openness of law allows the legal system to take up information from other systems (Luhmann 1986:113), but, Luhmann maintains, this openness should not and cannot be carried too far, because operative closure, i.e., the legal system's autonomous functioning, cannot be threatened without ultimately destroying the system (Luhmann 1989:144). Luhmann therefore regards the systems of politics and economy as operationally differentiated from law (Luhmann 1982a:138-225, 1993a). While legal system is coupled to the political system (e.g., through the constitution) as well as to the economic system (e.g., via property laws), these social subsystems remain independent from one another in their respective modes of operation (Luhmann 1992b:1434-38). Likewise, Luhmann contends, the separation between law and morality in modern societies is complete (Luhmann 1972:17172, 1993b). While morality reduces social complexity in terms of the binary code esteem/disesteem (Luhmann 1993b:999), the legal system is released from determining the conditions under which people can command esteem. Luhmann argues that "two-value coding of functional systems can in no way be made congruent with the moral code good/bad" (Luhmann 1994a:29). Legal decisions are made regardless of any moral concerns: "Legal forms are valid because they are valid" (Luhmann 1988a:23).


In his theory of communicative action, Habermas develops a concept of social evolution based on a process of rationalization in modern societies (Habermas 1981a, 1981b). Habermas particularly considers the development of communicative rationality, which, he argues, has historically developed into a differentiated lifeworld of cultural traditions, networks of solidary groupings, and institutions of socialization. He contends that social rationalization also encompasses the formation of the systems of economy and politics. These systems have in the course of history split off from the lifeworld and efficiently manipulate and control a society's external environment in terms of money (market) and power (state). Aimed at purposive interventions on the basis of monetary profit and bureaucratic effectiveness, systems can also penetrate back into the lifeworld, a process Habermas describes as the colonization of the lifeworld. The colonization thesis indicates that the infiltration of mechanisms oriented to success into the lifeworld inevitably produces certain crisis manifestations (loss of meaning, anomie, and personality disorders).

In his original formulation of the theory of communicative action, Habermas attributes two functions to law, specified by the distinction between law as institution and law as medium. This twofold classification denotes that law, on the one hand, secures the independent functioning of the systems of economy and state by institutionalizing the operation of their respective steering media (Habermas 1981a:164-79, 243-71, 1988). As such, law is conceived as the institutionalization of a moral-practical discourse on social norms (Habermas 1983:43-115, 1991:19-112). On the other hand, modern laws, especially in (European) welfare states, also guarantee freedoms and rights against an unbridled capitalist system. Yet, this process is not without certain negative consequences (Habermas 1981b:356-67). The welfare form of juridification, conceived as an increase in formal law, curtails the imperatives of the free market on the basis of lifeworld demands pertaining to liberty and equality, but at the same time these lifeworld claims are transformed in terms of systemic functions. Specifically, these legal entitlements entail an individualization of social problems that are bureaucratically determined by computerized impersonal organizations and settled in the form of monetary compensations. As such, the lifeworld is internally colonized bylaw as a medium.

Critics have argued that the perspective of law as institution and law as medium neglects the possibility that law can be restructured by systems to bring about a colonization of law, rather than that law is itself a colonizing medium (Van der Burg 1990; see Deflem 1996b). An interpretation of law as amenable to colonization would be able to critically elucidate the possible infiltration of systems in law (technocratization), while acknowledging that modern law remains in need of normative justification. In his most recent writings, particularly in his new masterpiece Faktizitat und Geltung [Between Facts and Norms], Habermas (1992a, 1992c) has indeed reformulated his theory accordingly. Foregoing much of the complex theoretical argument, Habermas now maintains that law, on the one hand, can be encroached by the systemic imperatives of politics and economy to bring about a transformation of symbolic law, guided by intersubjectively reasoned understanding, into technocratic law, operating on the basis of standards of efficacy (Habermas 1992a:57-60, 1994:135-36). On the other hand, law can be legitimated in terms of a moral-practical discourse inasmuch as it relies on a procedural notion of democracy operating in legislation, jurisprudence, and legal administration (Habermas 1992a:109-291, 1995).

Variations in the Sociology of Law: Parsons versus Luhmann versus Habermas

A comparison of the theories of Parsons, Luhmann, and Habermas may clarify some of the crucial differences between these theoretical projects and help assess their relevance for the empirical study of law. Of course, I cannot attempt to simplify all the complexities of the discussed theories, but neither does it have to imply, as a famous critic of Parsons once held (Homans 1982:295), that a high level of abstraction would automatically prevent a specification of hypotheses for research purposes (see Klausner & Groves 1981). Precisely for this strategic reason have I introduced the three theories in terms of their respective views on social evolution, systems concept, and law. The posited reliance of Luhmann's and Habermas's perspectives on Parsons's theory, moreover, also reflects actual developments in theory construction. In what follows, I first consider how Luhmann and Habermas have critically assessed Parsons's theory and then I specify distinct hypotheses on law.


Parsons employs a systems concept that alludes to the interdependent relations between functionally differentiated subsystems, but he also recognizes that "there are often indistinct boundaries" (Parsons 1978:25). At the most general theoretical level, this corresponds to Parsons'sinsight that specialized social subsystems operate in relation to one another as well as to the whole, indicating the relevance of functional differentiation processes (Parsons 1951:113-50) and of input-output interchange relations (Parsons 1959a:16-22). Specifically, Parsons distinguishes an external-internal axis (A and G versus I and L) and a means-end axis (A and L versus G and I). Importantly, Parsons conceives the AGIL scheme from both a structural and a dynamic viewpoint. From the perspective of structural differentiation, the model denotes a process of specialization or functional upgrading of the system. As such, the scheme is multidimensional (Alexander 1983), involving symmetrical processes of double interchange between the subsystems (see Parsons 1963a:347-54, 1968b:188-202, 1970c:238-44, 1975). As a dynamic process, however, the four-functions model accords primacy to the internal systems levels, particularly to processes of socialization (of values) and their relevance to integrate society (through norms) at the level of the societal community (Parsons 1959a:29-36).(n2) As such, Parsons'ssocial system can be understood to imply structurally symmetrical but not dynamically equal processes of exchange between the four differentiated subsystems. Thus, from the structural viewpoint, law functions as an institutionalization of norms with integrative purposes, while the dynamic perspective can account for legal change.

In clear contrast with Parsons's perspective, Luhmann's theory suggests that the differentiation between social subsystems in modern societies has created fully closed subsystems. Arguing against Parsons's conception of consensually shared values, Luhmann holds that dissent and a plurality of viewpoints are essential characteristics of the modern social system (Luhmann 1980, 1982a). Precisely because of this plurality of action alternatives, Luhmann argues, subsystems specify their boundaries over what can and cannot be expected. Symmetrical exchange processes between the various parts of the social system are, according to Luhmann, no longer possible.

Habermas has drawn altogether different lessons from a reading of Parsons than has Luhmann (Habermas 1976:130-77, 1981c).(n3) Important for the present analysis is that Parsons's theory according to Habermas overlooks that while the differentiation of the lifeworld has enabled the rise of the systems of politics and economy, lifeworld and system have become relatively independent once this differentiation had taken place. Habermas's distinction between system and lifeworld may at first sight appear to resemble Parsons's external-internal differentiation. Yet, as Habermas (1981b) argues, while an asymmetry between the external and internal subsystems is "tacitly relied upon" in Parsons's theory, "at the same time it is made to disappear behind empiricist conceptions" (278). In Habermas's theory, the internal-external dimensions of Parsons's scheme are more fundamentally separated to suggest the theoretical primacy of the lifeworld and the empirical dominance of systems. Consequently, system and lifeworld are from Habermas's viewpoint to be approached from different methodological angles: externally, society can be conceived as functionally differentiated in terms of Parsons's systems theory, but, internally, society should be considered from the perspective of a plurality of meaningful lifeworlds (Habermas 1981b:153-60).

The theories of Parsons, Luhmann, and Habermas, then, share a view of social evolution as a differentiation of social systems and/or lifeworld domains instigated by the rise of universalistic belief systems and the loss of traditional worldviews. Modern law provides cohesion to modern social life, either through social integration (Parsons, Habermas) or by reducing the complexity of action alternatives (Luhmann).(n4) In addition, universalistic tendencies make social change possible. Applying these theories to a study of American abortion law, therefore, rests on the premise that the United States is a sufficiently differentiated society which unites universalistic legal principles with a tolerance towards individual variation. Law is moreover assumed to be amenable to change in response to forces from outside and/or only from within the legal system. Beyond a general differentiation perspective, distinct propositions on law can be derived from each theory.


Although largely neglected, Parsons's sociology of law has received some scholarly attention,(n5) but, strikingly, no efforts have been made to apply Parsons's insights on law to account for the introduction and/or modification of specific legal norms. The theories of Luhmann and Habermas, too, are widely recognized as significant contributions to the study of modern society, and their perspectives of law have been the topic of considerable discussion (see, e.g., the contributions and bibliographies in Teubner 1988a; Deflem 1996a). But probably because of their high level of abstractness, they have generally remained as unapplied in empirical research as has Parsons's approach. A useful way to construct testable propositions can, I believe, be gained from looking at how these theories conceptualize the relative autonomy of law.

In terms of its internal functionality, Parsons maintains, modern law seeks to secure integration in light of growing variation in individual orientations. As an institution instrumental for a society's social control, law secures social harmony because of individualism, creates order out of disorder (Parsons 1952:382, 1962a:57, 1978:12). In addition, as a system among systems, the legal system relates to the other subsystems of society. The relative autonomy of law versus the economic, political, and values systems, therefore, indicates that social subsystems can affect one another in reciprocal ways. This is not to deny that Parsons pays most attention to law's internal function, that is, law's role as an institution specialized in integrating social action (Parsons 1965:93-94). Yet, arguing against what Parsons calls a Marxist "economic absolutism" and a Weberian disposition towards "political absolutism" (Parsons 1978:26), Parsons's perspective also acknowledges that law is "relatively independent" from the other functionally differentiated spheres of social life (Parsons 1964:510, my emphasis). Parsons especially recognizes the legal system's "curiously ambiguous position of dependence and independence with reference to the state" (Parsons 1952:374). In other words, precisely because the legal system and government should not be equated, Parsons considers their interrelationships primordial (Parsons 1978:35-36,40). Taking into account Parsons's suggestion that transformations in the fiduciary system are most fundamental and that law is dependent on the political process of legislation, a proposition on law congruent with Parsons's theory suggests that the state and evolution of law are influenced by cultural-religious values and political decisions, whereby the analytically crucial dependency of law on politics does, empirically speaking, not necessarily involve a politicization of law.

Refuting the centrality of law's relative autonomy, Luhmann argues that relations between different subsystems necessitate translations into their respective codes of operation (Luhmann 1989:139). Importantly, Luhmann does not defend the claim that impulses from outside the legal system are impossible: "the legal system," he writes, "also depends on and has effects on other systems in its social environment" (Luhmann 1994b:50). Thus, as a "differentiated functional system within society," the legal system also contributes to the reproduction of society as a whole (Luhmann 1989:138). Yet, Luhmann argues, modern law is at the level of its own operation completely autonomous and dosed. By implication, Luhmann's theory suggests that legal change can only occur because of changes within the legal subsystem itself: "[law] can regulate its own regulation, and thereby also regulate, legally, alterations in the law" (Luhmann 1989:141). From Luhmann's perspective, then, the production of certain legal norms, as well as the extent and manner to which they change or are amenable to change, are conditioned by the legal system itself.

Habermas conceives law, as does Parsons, as a mechanism of social integration. However, whereas Parsons considers the contribution of each subsystem to any other in symmetrical terms, Habermas sees a basic difference in whether these relationships occur between lifeworld institutions, between systems, or, most important for law, between lifeworld and system (which suggests the possibility of colonized or technocratic law [see Habermas 1992a:499-504]). Likewise, Habermas's contention that law retains an intimate relationship with morality puts him most clearly at odds with the perspective of Luhmann (Habermas 1971, 1985:368-85,1992a:70-78; Luhmann 1971, 1982b, 1993c). Contrary to Luhmann, who suggests that the autopoietic system of law does not relate to morality, Habermas maintains that modern law remains in need of moral justification, particularly when legal norms are affected by political and/or economic systems (Habermas 1994:145-47). A proposition on law derived from Habermas's theory, therefore, holds that changes in law can come about either as the result of economic or political systems imperatives transforming law in technocratic terms (colonization), or in response to symbolic claims of the lifeworld (moral resistance).


Explicating the suggested hypotheses with respect to appropriate levels of law and relevant dimensions of inquiry, a word should be said first about the thematic scope of the analysis presented in the following sections. My historical examination of abortion law in the United States is restricted to the constitutional rulings on abortion since the Supreme Court legalized abortion in 1973. As a twofold limitation to this study, I will only briefly touch upon developments in U.S. abortion law before that period and devote most attention to the abortion rulings reached by the highest U.S. court. It should be noted that the legal regulation of abortion falls within the province of the state legislatures, although federal laws can be and have been passed that affect abortion-related issues. Yet, given the impact of constitutional decisions on state legislation under the principle of judicial review, my discussion of the Supreme Court's rulings concerns the highest authoritative legal body related to the law-making process at the state and federal levels.

In all three discussed theories, special significance is accorded to the judiciary. My choice to examine constitutional abortion rulings, therefore, not only makes sense given the structure of the American legal system, it is also theoretically appropriate. Parsons applies his theory not only to the substantive qualities of certain laws, but also and mainly to court procedures (rule-focused legal interpretation) and the role of the legal profession (the client-focused aspect of law) (Parsons 1952, 1962a:62-70, 1963b:377-378, 1975:227). Likewise, the emphasis in Parsons's perspective shifts from the constitution to the judiciary. The latter fulfills the critical function of interpreting the constitution as the highest order of law (Parsons 1962a:63, 1964:345-346, 1978:25, 33).

Habermas has applied his perspective of law (as institution and as medium) to school and family law. He refers to legal reforms in these areas implemented via adjudication (court decisions) and legislation (Habermas 1981b:367-73). In his more recent work, Habermas more carefully differentiates between various levels of law and accords special significance to the constitution and the judiciary. Specifically, Habermas argues that while the legitimacy law is ultimately dependent on the process of legislation, it is precisely the judiciary which oversees that this process obeys the procedural conditions of democratic will-formation (Habermas 1992:292-48).

Luhmann's theory of law is explicitly restricted to positive law, defined in terms of the certainty that legal decisions will be made when rules are broken (Luhmann 1972:159-66). Luhmann consequently focuses mostly on the legal system's handling of rule violations or law's counter-factual reaffirmation of norms, that is, court procedures and the role of judges and lawyers (e.g., Luhmann 1988a:20-23, 1989:143). However, Luhmann explicitly applies the autopoietic theory to all levels of law and states that the cognitive nature of law's conditioning "is true also and precisely in relation to legislation (Gesetzesrecht) and judicial decision" (Luhmann 1972:285).

Specifying the relevant dimensions of the suggested hypotheses, it is to be noted that Luhmann's theory--the only perspective that denies the relevance of extralegal contexts conditioning the operation of law--posits cognitive openness, but holds that nonlegal pressures on law are mere "irritations" (Luhmann 1989:144) that always have to be translated in the binary legal code lawful/unlawful to be considered part of law (Luhmann 1988a:20-21). While Luhmann recognizes a hierarchical structure of law in terms of organization and with respect to norm qualities, this hierarchy of control, too, is a matter internal to law (Luhmann 1972: 284-85,345). Both substantively as well as formally, then, Luhmann's perspective contends that the production and evolution of law cannot be attributed to extralegal influences.

The theories of Parsons and Habermas argue for a relative autonomy of law. The centrality Parsons attributes to the legal system as an element in the societal community is evident from his conception of law as "probably the single most important institutional key to understanding . . . problems of social integration" (Parsons 1978:52). The societal community itself Parsons considers to be the "core structure of a society" (Parsons 1968b:182). It is in this sense that the legal system is most directly articulated with the values and political systems (185). Indeed, Parsons holds that the "development of political differentiation and pluralism . . . tends to broaden the range of individual freedom for dissent" (187). This does not mean that the political system safeguards individualism directly, for only the effectiveness of binding collective decisions is what is politically strived for (Parsons 1963a:306-12). However, Parsons maintains that as societies functionally differentiate there is a drift towards political egalitarianism and inclusion of the various, empirically dominant value-patterns, and these, as noted, are in the American context chiefly oriented towards giving more autonomy towards the individual (Parsons 1959/1960:604-605; 1970b:347-49). As such, individualistic value-patterns affect both the substance and form of modern law, that is, legal norms incorporate rights of self-determination justified on the basis of individualistic values.

Habermas, finally, adopts a concept of politics similar to Parsons's, but working in the context of Europe, he accords a more interventionist role to the political system (Habermas 1981b:267-72, 347-63). Social-welfare government not only secures liberty rights but also curtails capitalist encroachment on the lifeworld in terms of demands for equality and participation. These normative lifeworld claims towards law, then, apply primarily to the substance of law in that they strive to ensure that legal norms secure a peaceful co-existence of a plurality of ethical life forms (Habermas 1994). In terms of systems' influences on law, however, the technocratization of law (which only Habermas alludes to) applies to the formal justifications of legal norms, not their substantive points of reference, for the latter may actually result from lifeworld demands while the manner in which they are dealt with can constitute a transformation in systems terms. Beyond the relevance of a technocratization of law, the difference between the hypotheses derived from the theories of Parsons and Habermas is for the better part a matter of theoretical interpretation.

Abortion Law in the United States: A History of Constitutional Rulings, 1973-1992

The history of American abortion law represents a complicated process of various tendencies working towards and against the legality of abortion. The period until the early 1960s can be briefly summarized as a silent age of illegality (Cabot 1980:93-109; George 1992:9-18; Rubin 1994:3-116). During the formation of the New World, abortion was not legally regulated. The first U.S. state to pass legislation on abortion was Connecticut, where abortions of fetuses beyond the point of quickening (when the fetus can be felt to move) were by statute declared a crime in 1821. During the second half of the nineteenth century, all other U.S. states passed similar legislation, allowing abortions only under very delineated circumstances, mostly only when the life of the mother was endangered ("therapeutic" abortions). The states of Louisiana, Massachusetts, New Jersey, and Pennsylvania, allowed no exceptions to the criminalization of abortion. This situation did not change until the 1960s and early 1970s when several U.S. states passed more liberal abortion laws. Particularly during the mid 1960s, the abortion reform movement had gained ground and lobbied for legislative changes, relying on the support of women's groups, birth control organizations, civil rights advocates, the medical and legal professions, as well as certain, mostly Protestant, churches (Petchesky 1990:125-32). As a result, between 1966 and 1973, some fourteen states reformed their statutes to legally permit abortions for therapeutic reasons, when the fetus could be born with a serious mental or physical handicap, and/or when pregnancy was the result of incest or rape. Four additional states, New York.

Alaska, Hawaii, and Washington, went as far as to allow abortions on demand upon fulfillment only of certain procedural requirements concerning the location of abortion facilities, the stage of fetal development, and the pregnant woman's place of residency (Cabot 1980:109-111; Segers & Byrnes 1995:3-4). This liberalization of abortion laws led to several, sometimes successful attempts to challenge the constitutionality of the statutes at the state level, accompanied by increased efforts to lobby for reform in the state legislatures, intensified mobilization on the part of reform and repeal movements, and some much-publicized prosecutions of abortionists (Faux 1988:114-224; Rodman, Sarvis & Bonar 1987:94-101). On one occasion, in the case of United States v. Vuitch (1971), the Supreme Court stepped in and overturned the dismissal of an indictment brought against a physician who had performed abortions The Court ruled that the considered abortion statute of the District of Columbia was not unconstitutionally vague, but it did not pass judgment on the legality or illegality of abortion.


In 1973, the Supreme Court reached two important decisions chat have set the stage for the legal abortion debate until this day. In Roe v. Wade (1973, hereafter Roe) and the companion ruling Doe v. Bolton (1973), the Supreme Court judged the constitutionality of two state abortion laws. In Roe, the Supreme Court invalidated a 1857 Texas statute chat prohibited abortions at any stage of pregnancy except to save the life of the mother. The Supreme Court decided that "prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician, subsequent to approximately the end of the first semester the state may regulate abortion procedure in ways reasonably related to maternal health, and at the stage subsequent to viability the state may regulate and even proscribe abortion except where necessary in appropriate medical judgment for preservation of life or health of the mother" (Roe 1973:705). In Doe v. Bolton, the Supreme Court invalidated a Georgia abortion statute and decided that "those portions of the statute requiring that abortions be conducted in hospitals, or accredited hospitals, requiring the interposition of a hospital abortion committee, requiring confirmation by other physicians, and limiting abortion to Georgia residents, are unconstitutional" (Doe v. Bolton 1973:739).

With these two rulings the Supreme Court effectively decriminalized abortion. Given the continued impact of Roe v. Wade until this day, it is worthwhile to clarify the arguments the Court here advanced. Most fundamentally, the Supreme Court based its decision in Roe on a woman's privacy right. The right to privacy is not explicitly mentioned in the U.S. Constitution, but the Supreme Court concluded that the right, "however based, . . . whether it is to be found in the Fourteenth Amendment's concept of personal liberty, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (Roe 1973:728,727). The Court also ruled that this privacy right is not absolute and that it should be measured in relation to the state's interest to protect potential life. To determine this interest, the Supreme Court did not consider the personhood of the fetus because constitutional references to the person apply only postnatally (Roe 1973). Instead the Court took into consideration the time of fetal viability, i.e., when the fetus is capable of independent survival outside the womb, as well as the increased risk of the pregnant woman's mortality in abortion (Roe 1973:731-32). On these grounds, the Texas statute was ruled to constitute a violation of the due process clause of the Fourteenth Amendment.(n6)

The 1973 Supreme Court decisions led to legislative changes on abortion in nearly all U.S. states. In effect, Roe curbed the legislative powers of the U.S. states by not allowing them to pass legislation that proscribed abortion. Different states nonetheless tried to restrict access to abortion by demanding additional requirements, such as husband's consent, parental consent in the case of minors, and procedural requirements specifying certain conditions under which abortions could be performed (Halva-Neubauer 1993). In the 1970s, most state-imposed restrictions were ruled unconstitutional by the Roe standard. In Planned Parenthood v. Danforth (1976), for instance, the Supreme Court struck down the state of Missouri's law on parental and spousal consent requirements. While the Court in the 1970s decided that states were not required to fund nontherapeutic abortions (Maher v. Roe 1977; Beal v. Doe 1977), other constitutional decisions also invalidated state-imposed restrictions, such as parental consent in the case of minors (Bellotti v. Baird 1979) and detailed informed consent requiring women seeking abortion to be given information on fetal development (City of Akron v. Akron Center for Reproductive Health 1983). One of the most heated constitutional controversies since Roe was raised in Thornburgh v. American College of Obstetricians and Gynecologists (1986) concerning a Pennsylvania abortion statute which, amongst other things, required informed consent, including detailed descriptions of fetal development and information on the risks of abortion and the availability of child support. The Court ruled these restrictions unconstitutional. But four justices dissented from the decision, and, among them, Justices Rehnquist and White explicitly called for a reversal of Roe while Justice O'Connor expressed her desire to abandon the trimester framework (Thornburgh v. American College of Obstetricians and Gynecologists 1986).


Whereas the Supreme Court in the seventies and early eighties mostly overturned restrictive abortion statutes, this situation changed during the late 1980s and early 1990s. Specifically, the Court's rulings in Webster v. Reproductive Health Services in 1989 and Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992 expanded the constitutionality of state-imposed restrictions on the abortion right.

The Webster case considered the constitutionality of the state of Missouri's abortion law. The Court decided to uphold Missouri's ban on the use of public abortion facilities, the prohibition on the use of public funds to encourage or counsel a woman to have an abortion, as well as the requirement that physicians have to perform tests to determine the viability of fetuses of at least 20 gestational weeks (Webster 1989:3050-58). The Court, however, did not overturn the rulings in Roe v. Wade concerning a woman's privacy right or the trimester framework used to determine the state's interest in protecting potential life (Webster 1989).

After Webster, the Supreme Court upheld more restrictions, specifically concerning parental notification, the prohibition of federal funding of abortion-related activities, and the so-called "gag rule" which prohibits employees of medical facilities funded under Title X of the Public Health Service Act from informing patients about abortion as an alternative to childbirth (Hodgson v. Minnesota 1990; Ohio v. Akron Center for Reproductive Health 1990; Rust v. Sullivan 1991).

In 1992, in Planned Parenthood v. Casey (1992), the Supreme Court reached its most restrictive abortion ruling to date. While the Supreme Court refused to overrule Roe v. Wade's holding, the Court decided to discard the Roe trimester framework. The state's interest to protect potential life can now be set by a determination of fetal viability no longer bound to a definite period in pregnancy. After the point of viability, the Court ruled, states can regulate abortion except where necessary to preserve the health of the pregnant woman (Casey 1992:704-12). Moreover, although the Court struck down a prescription of spousal notice, it ruled constitutional the provisions that a woman seeking an abortion can be subjected to a 24-hour waiting period during which a physician informs her of the implications of an abortion, that minors need to obtain the informed consent of one of their parents or guardians, and that records on abortions be kept and reported. Requiring a record of abortions, the Court ruled, does not create an "undue burden" on a woman's right to have an abortion (Casey 1992:717-30).(n7) In the Casey decision, four Justices expressed their desire to overturn Roe (Casey 1992:677).

The Contexts of Abortion Law: A Sociological Analysis

So far I have outlined the history of the Supreme Court's abortion rulings since 1973 without considering extra-legal conditions under which these decisions were reached. Examining these external factors, I first present the political, then cultural, contexts of abortion law. After discussing these dimensions on the basis of the three introduced propositions, I explore the matter of a technocratization of abortion law, the relevance of which is argued for only in Habermas's theory. Assessing the suggested empirical contexts of abortion law, I rely on extant research on various aspects of abortion policy. Estimating their significance, I analyze relevant constitutional rulings from the standpoint of the three theoretical frameworks.


Specifying new constitutional boundaries, the 1973 Supreme Court rulings on abortion nonetheless reaffirmed the states' Legislative powers to regulate abortion. While constitutional theorists disagree on the relative shift of effective regulatory power this brought about between constitutional authority and federal and state government (Epstein & Kobylka 1992), there took place after Roe an amplified confrontation between the constitutional and legislative levels of government. This is particularly testified by the veritable explosion of abortion-related legislative initiatives at the state level after 1973 and the increase in litigation over their constitutionality, a process the constitutional decisions in Webster and Casey intensified (Craig & O'Brien 1993:279-305; Goggin 1993:5-12; Tholen & Baird 1995:1004-29). As a result, and despite the principle of judicial review, there is to this day a considerable variety of state abortion laws across the United States.(n8) Thus the evolution of abortion law since Roe also reflects a political struggle between state and federal bodies of government. Of course, in the years before 1973, the legal abortion debate was waged exclusively at the state level, and any abortion statute and constitutional ruling has always primarily concerned the legality of abortion and not which legislative body is most appropriate. Nonetheless, it was precisely when various state legislatures were involved with enacting more liberal abortion statutes--or resisting them--that the Supreme Court intervened.

In the aftermath of Roe, conflictual repercussions of the constitutional abortion debate also became apparent at the federal level of government. Congressional activities, in particular, then sought to restrict federal funding for abortion and abortion-related activities, ban American funds for foreign organizations advocating abortion, prohibit the use of fetal tissue in medical research, and amend the U.S. Constitution to grant personhood to the unborn (Block 1992:649-60; Rodman, Sarvis & Bonar 1987:115-18). These initiatives were mostly instated by acting politicians in order to practically limit or factually overturn the Roe ruling. In fact, one of the most notable restrictions on legalized abortion since the 1970s was introduced at the federal level of legislation. U.S. Congress does not have constitutional authority to pass legislation regulating abortion, but it can decide on the federal financing of abortions. In 1976, Representative Henry J. Hyde entered an amendment to a federal health bill which stipulated that except when the mother's life was endangered, abortions could not be funded through the Medicaid program under Title XIX of the Social Security Act which provides federal funds to the states for the medical care of indigent women (Rodman, Sarvis & Bonar 1987:116-18). The Hyde amendment, as it came to be called, first went into effect in 1977 and the Supreme Court ruled it constitutional in 1980 (Hams v. McRae 1980). Despite vigorous opposition from pro-choice groups, bitter controversies in Congress, and several challenges in state and federal courts, the amendment has in somewhat different forms been successfully reintroduced in Congress ever since (Bickett 1980:180-88; Craig & O'Brien 1993:118-37).

Other Congressional actions have likewise endeavored to restrict or, conversely, maintain the abortion right (Devins 1995). As one of the most radical pro-life strategies, actions were on occasion taken, especially in the years immediately following Roe, to amend the U.S. Constitution so as to redefine the notion of personhood and explicitly define the unborn as human beings. In 1974 and 1975, Senators James Buckley and Jesse Helms instigated congressional debate on such "human life" amendments. Several hearings were held on the issue before the Subcommittee on Constitutional Amendments of the Senate Committee of the Judiciary, but the amendments were never voted upon in Congress (Muldoon 1991:166-69; Rubin 1994:189-213). Other constitutional proposals worked toward a "federalism" amendment that would allow each U.S. state to determine how abortion should be regulated, independent from any Supreme Court ruling. A combination of a federalism and a human life amendment was introduced in 1981 by Senator Orrin Hatch. The only constitutional amendment on abortion to have ever reached the Senate floor, it proposed that the abortion right was not guaranteed by the Constitution and that the more restrictive law should govern in case of a conflict between two laws, federal and state. When in 1983 the amendment was in modified form reported to the Senate, it stipulated only that a "right to abortion is not secured by this Constitution," but was voted down (cited in Devins 1995, vol. 1:344). Since then, congressional actions have mostly refrained from seeking constitutional amendments and instead focused on the federal funding of abortion and other federally regulated conditions under which abortions are performed. In 1988, for instance, the Secretary of Health and Human Services promulgated the "gag rule" for employees of federally funded medical facilities, a provision which the Court later held constitutional (Rust v. Sullivan 1991).

At the state level, gubernatorial control has also sought to affect abortion legislation. Since the 1970s candidates for state government posts have increasingly stated their views on abortion, publicly aligned with abortion movements, and used, or refused to use, their veto powers on abortion statutes (Byrnes 1995:257-58; Craig & O'Brien 1993:325-26). Given the sensitivity of the issue among the electorate, constituency attitudes have influenced governors' positions on abortion (Kahane 1994) and have affected voting choice in gubernatorial races (Cook, Jelen & Wilcox 1994).

The involvement of the political system in the constitutional abortion process is most publicly evinced in the influences of the presidential rules over the last two decades. The Supreme Court decriminalized abortion during the presidency of Richard Nixon, who personally opposed abortion. However, the abortion issue had not been a theme during Nixon's race for the White House and was not a central concern of his administration (Epstein & Kobylka 1992:187).(n9) During the presidential campaigns of Gerald Ford and Jimmy Carter, too, the abortion issue had not yet taken center stage (Craig & O'Brien 1993:157-69). It was during Carter's presidency that a Democrat-controlled House voted to pass the Hyde amendment which posed severe restrictions to liberalized abortion. Hence, the political intrusions on abortion law cannot be captured by crude generalizations in terms of (pro-choice) Democrats versus (pro-life) Republicans (Craig & O'Brien 1993:117).(n10)

During the presidency of Ronald Reagan, abortion turned into one of the key issues in presidential campaigns and a central concern of presidential policy. The period of the Reagan presidency involved a more concerted and rather successful effort to intervene in the legal abortion debate. Reagan ran for the presidency on a Republican platform that endorsed a constitutional amendment to ban abortion, and he promised to appoint only Supreme Court Justices who opposed legalized abortion (Rubin 1994:238,296; Rodman, Sarvis, & Bonar 1987:130-31). During his 1984 presidential election campaign, Reagan reaffirmed his endorsement of a human life amendment to the Constitution. On 19 January, 1986, he proclaimed a National Sanctity of Life Day, and at the National Right-to-Life Convention of 1986 he called abortion "the ultimate human rights issue" (cited in Rodman, Sarvis, & Bonar 1987:132). Apart from engaging in pro-life rhetoric, Reagan sought to influence abortion law by placing pro-life partisans in key administrative posts (e.g., Everett Koop as Surgeon General and Margaret Heckler as Secretary of Health and Human Services). During the Reagan presidency, the ideological composition of the Supreme Court also became more conservative, which dearly affected the Court's less liberal rulings on abortion since the mid-1980s. Specifically, Reagan secured a pro-life redirection of the Supreme Court by appointing Justices O'Connor, Scalia, and Kennedy (Block 1992:660-61).

In the shadow of Reagan, President George Bush ran for the U.S. presidency on a pro-life platform and generally continued the anti-abortion policies established by his predecessor (Rubin 1994:299-301). The strategy to re-criminalize abortion through constitutional amendments, as noted, had proven largely ineffective, so that the Republican president further committed to change the composition of the federal judiciary (Craig & O'Brien 1993:173-76). Bush appointed Justices Souter and Thomas, who did not publicly state their views on abortion before their appointments. Later, in the Casey decision, Justice Souter joined the pro-Roe opinion of the majority of the Court, while Justice Thomas expressed his desire to overturn Roe (Casey 1992:675, 677). Faced with a Democratic majority in Congress, Bush also regularly used his veto powers to block more liberal federal legislations on abortion. In 1992, for example, Bush vetoed the bills that had passed in Congress to eliminate the "gag rule" and to lift the ban on the use of fetal tissue in federally funded medical research.

The policy actions during the presidential rules of Reagan and Bush clearly involved a trend towards more restrictive abortion policies. The renewed liberalism that was expected with Bill Clinton's election to the presidency confirms that the judicial system has remained in conflict with state and federal levels of control. Before his election, Clinton publicly stated his liberal views on abortion and proposed an abortion litmus test in nominating Supreme Court Justices (The Washington Post 1993a).(n11) Reversing abortion-related federal legislation inherited from the Republican presidencies, President Clinton, on January 22, 1993, signed executive orders accomplishing the following (1) revocation of the prohibition on abortions in military hospitals, (2) an order to study the French RU-486 abortion pill, (3) allowing American aid funds to pro-abortion organizations abroad, (4) a void on the ban on federal funding for fetal tissue research, and (5) the elimination of the "gag rule" earlier upheld by the Supreme Court (Rubin 1994:28586; Segers Byrnes 1995:15). Clinton also appointed Janet Reno, a vehement critic of abortion clinic violence, as Attorney General, and Joycelyn Elders, an outspoken pro-choice supporter, as Surgeon General.(n12) Since Republicans in 1994 acquired a majority in House and Senate, several abortion-related bills have been entered into Congress in order to reinstate most bans President Clinton voided and introduce further restrictions on abortion-related matters (The New York Times 1995a). Among the most visible of these initiatives was the so-called "Partial-Birth Abortion Act," a congressional bill first entered in Congress in 1996, then vetoed by President Clinton, but successfully reintroduced in the House in March 1997 (The New York Times 1997a) and arousing much debate in the Senate a few months later (The New York Times 1997b). In light of these and other trends, the future of the constitutional right to abortion may be uncertain, but political developments continue to shape the legal debate.


Unlike the legal effects of political decisions, the influences of cultural values on law cannot be readily estimated on the basis of distinct instances of decision making. Whether understood as objective structures of constraint or as subjective orders of meaning, cultural values are embedded within institutions and contexts of action (Alexander 1990). It is as such that cultural influences on law are manifested in the 1973 Supreme Court decisions as well as in its more restrictive judgments in later rulings. Specifically discernible is the Court's contention that the state's interest in protecting fetal life must be measured against, and is so subordinate to, a pregnant woman's individual right to privacy, a justification of the abortion right not to be found in most other Western legal systems (Glendon 1987). The Supreme Court's justification of the legality of abortion so demonstrates the relevance for law of the individualism of the American values system, even going against the demand, inspired by a more conventionally understood Judeo-Christian tradition, to prohibit the destruction of human life.

The centrality of America's religious heritage is confirmed by recent studies which found that religious belief, especially of Catholics and fundamentalist Protestants, is among the strongest predictors of attitudes towards the legality of abortion (Gush et al. 1993; Tamney, Johnson & Burton 1992,1994; Tyler & Mitchell 1994). In addition, religious groups mobilizing against legalized abortion have in effect influenced state abortion policy. In particular, conservative Protestants have shaped abortion policy indirectly through public opinion, whereas the presence of a strong unified Catholic church has directly influenced the passing of more restrictive abortion statutes through lobbying, or, ironically, contributed to strengthening pro-choice mobilization and indirectly promoted liberal state abortion policies (O'Connor & Berkman 1995). Pro-life religious groups, moreover, have in effect found some of their ideas expressed in the Supreme Court's more restrictive rulings since Roe, and evidence suggests that some religious groups have successfully lobbied to instigate congressional action on abortion.(n13)

The continuing debate over the morality of abortion indicates that the suggested cultural dualism (privacy right versus right to life) has remained a constant factor variously reflected in, and accelerated by, abortion law. Most recently, pro-choice supporters claimed to have gained an important victory in trying to maintain liberal abortion rights, specifically in seeking restraint on pro-life protesters. In 1993 the Supreme Court decided that an 1871 Reconstruction statute forbidding the deprivation of civil rights by private organizations (the "Ku Klux Klan Act") could not be applied to prevent abortion clinic blockades (Bray v. Alexandria Women's Health Clinic 1993). But in 1994 the Court ruled that abortion clinics can bring action against protesters when they engage in racketeering activity as stipulated in the RICO provision of the Organized Crime Control Act of 1970, a ruling supporting the federally authorized Freedom of Access to Clinic Entrances Act that passed the same year (NOW v. Scheidler 1994). Justices Souter and Kennedy in a separate opinion expressed the view that bringing RICO actions against antiabortion protesters could pose First Amendment problems of free speech NOW v. Scheidler 1994:113). But in a similar case later that year, the Court decided to uphold the core of a Florida state injunction, ruling that imposing a "no-protest" bufferzone of 36 feet around an abortion clinic was constitutional (Madsen v. Women's Health Center 1994). Similarly, in February 1997, the Supreme Court upheld a New York ordinance that specified a 15-feet buffer zone at abortion clinic entrances, although it struck down as unconstitutional a "floating" zone around individuals moving towards or away from a clinic (Schenck v. Pro-choice Network 1997).


The discussed findings indicate that the constitutional abortion debate reflects a political struggle over the goals and means of government and that the legalization of abortion incorporates the individualistic orientation of the American values system. In Parsonian terms, the political influences on abortion law can be described as a manifestation of the interdependence between the political system and the legal process inasmuch as it reveals how, beyond legislation enacted at the state level, political government has (co-)determined the legal abortion debate, thus bringing into question the realization of the separation of powers. These political intrusions, however, do not involve a politicization of the legal system since abortion laws are not instrumental for the advancement of political power. Instead, political positions are used to intervene in the legal abortion debate. This confirms Parsons's perspective that the legal system is prone to political influences, yet that this does not necessarily imply an instrumentalization of law by government, at least not in democratic political regimes (Parsons 1978:31).

Like Parsons's view, Haberma's perspective allows for influences of the political system on the legal process. The absence of a politicization of abortion law conforms to Habermas's rejection of his earlier defended thesis of an internal colonization by law as a political medium (Habermas 1981b:367, 1990:130, 1992a:502). Yet, even reformulated in terms of a political colonization of law (Habermas 1992a:108), it seems that the specific nature of American government does not fit well with Habermas's perspective of a colonization of law and the lifeworld. For political colonization does not merely refer to administrative interferences in the legal process, it implies that "systemic mechanisms suppress forms of social integration . . . in those areas where a consensus-dependent coordination of action cannot be replaced" (Habermas 1981b:196). Habermas's theory may adequately apply to European welfare states where political decisions largely come about in the form of bureaucratization, top-down administrative regulation, and, generally, the rights of community and state over and against the individual. In the United States, however, the powers to regulate abortion have since Roe been limited in terms of the rights of the individual, as manifested in a privacy-based legalization of abortion considered primary to state interests. The evolution of U.S. abortion law is in this respect better captured by Parsons's theory because it highlights the gradually more egalitarian and inclusive nature of the American political system (Parsons 1963a:323-26).

Parsons's perspective of the legal system as primarily safeguarding individual rights also finds confirmation in the justification of abortion law in terms of the pregnant woman's privacy right. The Supreme Court's ruling in Roe v. Wade indeed measured the interest of states to protect potential life in relation to the weight of the fundamental right to abortion as a matter of personal privacy. This exemplifies the legal system's crucial role in the preservation of individual rights for all, or what Parsons (1960:29,1978:53) calls "institutionalized individualism," especially inasmuch as even the more restrictive abortion rulings, too, do not involve a substitution of individual rights by collective interests. The application of the privacy right further indicates the Supreme Court's reluctance to consider particularistic rights for women ("feminine rights") in favor of an application of universalistic legal principles. This confirms Parsons's contention that the universalistic protection of rights of self-determination is a central characteristic of modern law (Parsons 1963a). The relevance of religion, moreover, which Parsons's theory also alluded to, is confirmed in that religious convictions shape attitudes towards abortion and effectively influence, or try to influence, legislation on abortion (Goggin 1993:14-15).

From the perspective of Parsons, then, the relevance for law of the American values system can be uncovered, but Parsons's theory also assumes that the values system shapes the legal process in a relatively unproblematic, at least not disintegrative, fashion. Parsons realizes that the values system of modern society is pluralistic (as a result of growing individualism) and that consequently a variety of interest groups can attempt to influence legislation (Parsons 1963a:323-24). But he also maintains that integrative solidarity can only be achieved through an "implementation of common values" which are articulated in a "common normative system" (Parsons 1963a:327, my emphasis).(n14) Yet, if we are to uncover the more conflictual relationship between a plurality of values and the integrative aspirations of legal norms in the abortion case, Habermas's theory shows its strength in accounting for the processes indicating lifeworld resistance. According to the theory of Habermas, indeed, lifeworld claims are reflected in normative demands that have to be mobilized in social movements actively oriented towards legal and political reform (Habermas 1981b:391-96, 1992b:453-56). In this respect, Habermas's theory of law can better account for the cultural-religious controversy between the different, pro-life and pro-choice, pressure groups that seek to promote their diverging interests in the legal abortion debate. Most critically, the increase of pro-choice and pro-life protest since Roe and the Supreme Court's later rulings reveal that opposing viewpoints on abortion are expressed in, and additionally bolstered by, abortion statutes, abortion-related legislation, and constitutional abortion rulings.(n15) The complex relationship between the legality of abortion and the various sentiments surrounding its morality is further complicated by the fact that abortion attitudes are related to a variety of factors, including political orientation (Tyler & Mitchell 1994), religious convictions (Guth et al. 1993, Welch, Leege, & Cavendish 1995), age (Cook, Jelen, and Wilcox 1993), race (Hall & Ferree 1986), gender (Walzer 1994), and region (Wilcox 1992), with various interactive effects between these variables. Additional lifeworld problems are manifested by the fact that neither the pro-choice nor the pro-life groups are monolithic and that most citizens individually hold conflicting beliefs on abortion (Alvarez & Brehm 1995). Any crude generalizations on abortion attitudes in terms of political orientation, ideological commitment, religious belief, or other single determinants, not to mention the disparity between attitudes and practices (Fung 1993), clearly fall short in accounting for the empirical complexities in the abortion debate.

The fact that political processes and cultural conditions have influenced U.S. abortion law readily appears to contradict Luhmann's thesis of an autopoietically closed legal system. But Luhmann's theory should not be taken lightly, for a clear strength of the perspective is that it stresses the resistance of the legal system in incorporating external factors. Luhmann's theory can account for the fact that changes in law always have to be processed on the basis of principles from within the legal system. Most clearly, in justifying the abortion right with reference to the right to privacy, the Supreme Court in Roe v. Wade decided in line with a constitutional process it had set in motion with Griswold v. Connecticut (1965), when the Court struck down a Connecticut statute outlawing any form of contraception because it invaded married couples' privacy. The Court then for the first time recognized the privacy right to exist under the Constitution. From Luhmann's perspective it can also be noted that the Supreme Court has never considered the moral right to life of the fetus, but only whether the fetus can be judged a person within the confines of the Constitution (Roe 1973:728-30). In the Casey decision, moreover, the Supreme Court decided against overruling Roe's central holding on the basis of the doctrine of stare decisis, the constitutional principle to follow precedent (Casey 1992:699-704). These decisions, then, were based on considerations internal to the legal system.

However, Luhmann's theory cannot account for the fact that changes in American abortion law have also come about under political pressures and have reflected and reinforced tensions between diverse cultural values. It could be argued that "the alleged immorality of certain abortion decisions cannot be dispositive of the constitutionality of anti-abortion laws" (Brownstein & Dau 1992:693). But such a narrow legalistic outlook fails to comprehend the constitution as the most authoritative expression of a society's normative foundations, whether understood as an embodiment of "general principles of `Rights'" (Parsons 1970b:358) or as a system of rules structured by principles intended to guarantee a peaceful coexistence of various values systems (Habermas 1992a:309-17). Even when the constitution is comprehended in more factual terms, Luhmann's perspective still neglects the political influences and moral strains infiltrating into the legal system whenever the constitutionality of laws is decided upon by the judiciary. Political office holders can actively promote legal change, notably through the appointment process in the judiciary and through a variety of legislative actions. Interest groups, moreover, can mount a publicity campaign, lobby legislators, hold demonstrations to display the strength of their commitment, make contributions to political parties that support their viewpoint, and generally maintain pressure until abortion laws have changed according to their claims (Kennealy 1988:364). The normative impact of abortion law, too, can in no way be underestimated, as is indicated by the proliferation of pro-life and pro-choice movements on the occasion of legal change (and the intensity and moralistic tone of debate on abortion issues in the popular press as in much of the scholarly literature). The ways in which popular appeals for or against the criminalization of abortion are channeled into law, and how, conversely, law influences popular sentiments and social movement mobilization, indicate dear ruptures in the boundaries of law. Perhaps most damaging to Luhmann's theory is that these influences are not merely a matter of analytical interpretation, but have to some extent also been recognized by the Supreme Court. In Roe v. Wade, for instance, the Court Justices explicitly acknowledged their "awareness of the sensitive and emotional nature of the abortion controversy" (Roe 1973:708). In Casey, likewise, the Court recognized that abortion is "a unique act . . . fraught with consequences for others" about which "reasonable people will have differences of opinion" (Casey 1992:698, 699). Moreover, while Luhmann's perspective suggests that violations of legal norms cannot invalidate those norms, the gap between the criminalization of abortion in the state legislations and the widespread practice of, and growing tolerance towards, abortion was among the factors that contributed to its legalization.


Habermas's theory also leads to identify the technocratic pressures determined by medical technology on the Supreme Court's abortion decisions. The history of health-care practices on, and physicians' attitudes towards, abortion is long and complex. In the nineteenth century, the medical profession organized strong opposition against legalized abortion (Cabot 1980; Luker 1984). Among the arguments forwarded, medical experts interpreted the Hippocratic Oath as involving a prohibition to perform abortions and argued that there were considerable health risks involved with existing abortion methods. Most critically, by opposing a legalization of abortion the medical profession sought to establish and secure a monopoly of health practices. For indeed, throughout the nineteenth century most abortions were not performed by licensed physicians, but by lay persons, particularly pharmacists end midwives (Faux 1988:51-53; Mohr 1978:14770). The medical profession, since 1847 organized in the American Medical Association, regarded the practice of abortions by lay persons not only as hazardous from a public health viewpoint and as immoral in terms of accepted ideological belief, it was also judged a threat to a profession that by that time was claiming a monopoly in healing practices. Medical professionals emerged as elites "who sought control over the dispensing of private reproductive health care and the state's backing to legitimate that control" (Petchesky 1990:79). State abortion legislation at the time, which permitted only therapeutic abortions performed by regular physicians, indeed corresponded to the medical viewpoint (Luker 1984:35-39). Despite legal restrictions, physicians then and later practiced abortions under a variety of circumstances, but the medical profession's standpoint would not change substantially until important advances had been made in medical technology. In 1967, the American Medical Association passed a resolution, conforming to the Model Penal Code the American Law Institute had originally drafted in 1959 (Cabot 1980:106), that condoned abortion when the pregnancy could threaten the life or health of the pregnant woman, when it could lead to birth of a physically or mentally challenged child, and when pregnancy was the result of incest or rape (Cabot 1980:108).

Once medical abortion techniques were sufficiently advanced to keep health hazards at a minimum, potential providers of abortion services no doubt had an interest in legalizing abortion, but it is unclear to what extent they directly affected the passing of liberal abortion statutes in the 1960s and the Supreme Court's decriminalization of abortion in 1973. An indication that there may have been such influences is presented by the fact since the 1960s licensed physicians not only performed abortions more frequently than before, but also began to organize in committees and promote campaigns to push for liberal abortion laws (Faux 1988:57-62; George 1992:17). The revised statutes on abortion of some U.S. states, moreover, allowed only for therapeutic abortions under the conditions set by the American Medical Association in 1967, and/or stipulated the requirement that abortions had to be performed in hospitals by licensed physicians (Cabot 1980:111; George 1992:16-17). In addition, organizations of abortion providers and the medical profession (e.g., Planned Parenthood, the American College of Obstetricians and Gynecologists, Reproductive Health Services) have often been directly involved with litigation on abortion. Another indication of a legally significant role of the medical profession is presented by the practice of amicus curiae briefs. These are statements of opinion filed by individuals or organizations in support of the arguments attorneys advance during Supreme Court hearings. In Roe v. Wade, these briefs included letters from various pro-life and pro-choice groups as well as from the American Medical Association, the American College of Obstetricians and Gynecologists, the American Psychiatric Association, the New York Academy of Medicine, the American Medical Women's Association, and an ad hoc group of 178 physicians (Epstein & Kobylka 1992:174-77). In the Court's later abortion rulings, such briefs likewise included information provided by medical associations (Orentlicher 1989). Finally, it can be noted that most legal abortions are performed in specialized abortion clinics (Smolin 1993:261), so that a criminalization of abortion would directly affect the employment of specialized physicians and personnel.

More clearly affirming Habermas's perspective of the technocratization of law is the fact that medical claims on the health-related aspects of abortion are explicitly expressed in the Supreme Court's abortion rulings. In Roe v. Wade, the Supreme Court did acknowledge the normativity of the abortion issue and "the vigorous opposing views, even among physicians" (Roe 1973:708). But the addition "even among physicians" requires special meaning when the justifications of the Court's ruling are more carefully considered. The act of abortion was defined by the Court as "a medical procedure that should be performed by a licensed physician in an accredited hospital" (Roe 1973:722). The trimester framework was stipulated because abortions of pregnancies in the first trimester were considered "although not without risk, . . . relatively safe," as indicated by "the now-established medical fact . . . that until the end of the first trimester mortality in abortion maybe less than mortality in normal childbirth" (725, 731-32). Where at one time "the procedure was a hazardous one for women," the Court explained, "modern medical techniques have altered this situation" (724, 725). Therefore, the state's compelling interests were judged not to apply until the end of the first trimester of pregnancy, while "up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision.. [and] must be left to the medical judgment of the pregnant woman's attending physician" (733, 705). The personhood of the fetus, moreover, was decided, not only because the constitutional person does not include the unborn, but also on the basis of "new embryological data that purport to indicate that conception is a `process' over time, rather than an event" (731). To substantiate this viewpoint, the Supreme Court in Roe referred to the changing attitude towards abortion defended by the American Medical Association and the American Public Health Association (Roe 1973:721-23).

Thus, much like Habermas has argued in the case of the technocratic redefinition of European welfare laws (Habermas 1981b:361-73), the Supreme Court resolved the normative dilemma ("the vigorous opposing views") on the basis of technological reasoning. This medical technocratization of abortion law applies only formally to the justifications that set limits to the constitutional right to abortion, but its possible implications are nonetheless clear. Developments in abortion technologies have paradoxical consequences for the legality of abortion: certain health care developments may lead to place the point of viability earlier in pregnancy, while other advances in medical treatment can make abortions safer at a later point in pregnancy than before (Brigham, Rifkin & Solt 1993; Mangel 1988).

The technocratic reframing of legalized abortion has been criticized for a variety of reasons. It has been suggested that the Supreme Court's abortion rulings are constitutionally vague because the Court failed to clearly define the boundaries of the trimester framework and the point of viability and because current medical techniques lack precision in setting viability at any precise point in pregnancy (Clark 1980:129-37). Some commentators therefore propose alternative standards based on fetal development (Dworkin 1992; Henry 1994; Kennedy & Nicolazzo 1985). Yet, others question the very reliance on medical technology in constitutionally determining the boundaries of legal abortions. Because technocratically transformed abortion law subordinates abortion as a right (to be defended or denied) to the technical abilities of medical experts and reaffirms the role of women in terms of their reproductive abilities, it is argued to abandon technocratic standards in favor of constitutional principles or a recognition of specifically feminine qualities (Behuniak-Long 1989; Blank 1984; Callahan 1986; Felts & Fields 1988; Imber 1990; Rhoden 1986). The reality is that the conversion of symbolic into technocratic reasoning through reliance on fetal viability has continuously been applied in the constitutional abortion rulings that have been reached since Roe (see Casey 1992:710-11; Webster 1989:3054-58).

Boundaries of the Sociology of Law

In terms of my analysis of abortion law, Luhmann's perspective of autopoietic subsystems can account for a tendency of the legal system to operate autonomously, but fails to explain that this resistance of law is only relative. Parsons and Habermas, on the other hand, do take into account outside influences on law. Parsons's perspective illuminates the political influences on law and the individualistic nature of American politics, but cannot critically elucidate the extent to which a society's self-proclaimed commitments (`equality before the law') are fulfilled or not (Mayhew 1971). Questioning the generality of Habermas's theory, it views politics too exclusively in terms of power over and against the individual to be applicable to the American scene. This shortcoming may reflect the differences between European and U.S. societies in how the political system is legitimated at the level of the lifeworld or values system. Whereas in Europe the political system is generally allowed a more positive role of intervention on the basis of demands for social rights, in the United States the political process is negatively curtailed in terms of claims for individual self-determination. Yet Habermas's lifeworld perspective can explain the delicate nature of the normative controversy over law, and usefully points out that this struggle can involve a plurality of conflicting claims and that these claims have to be made collectively to be effectively transmitted to the legal system.(n16) An additional strength of Habermas's perspective is that it brings out the technocratization of abortion law in the Supreme Court's reliance on viability to determine the states' interest in protecting potential life.


My analysis suggests a thesis on the history of American abortion law that merges the merits of the perspectives developed by Parsons and Habermas. In general terms, the evolution of abortion law in the United States since 1973 has been shaped in response to political and lifeworld influences and involved a transformation into technocratic law. More specifically, political influences on the legal abortion process are observed in the confrontation between federal and state levels of government, presidential and gubernatorial control of federal and state legislative actions, political nominees' public commitments to pro-life or pro-choice rights, federal regulations of abortion-related matters, and presidential control through appointments in constitutional and administrative bodies. While the legal abortion debate was waged in the state legislatures during the 1960s, since the legalization of abortion in Roe v. Wade federal as well as state levels of government have been at the heart of the debate. State legislative efforts and gubernatorial control have particularly sought to pass abortion statutes that would sidestep or, conversely, protect the constitutional legality of abortion. Federal legislation imposed or banned restrictions on the funding of abortions, while other congressional action endeavored or opposed constitutional amendments. As one of the most visible strategies, presidential policy has increasingly interfered in abortion law, most notably by influencing the ideological composition of the Supreme Court. These political initiatives are completely within the confines of the system of American government. Yet they exemplify an intrusion in the legal process because and inasmuch as such actions are intended to influence the constitutional legality of abortion and its legislative repercussions.

The cultural influences on abortion law reflect the "American dilemma" between secular humanistic values related to privacy and individualism, and convictions, mostly rooted in a Judeo-Christian tradition, that promote the preservation of life. Religious beliefs in turn reveal tensions between the fundamentalist call to protect human life and the Protestant stress on liberty and freedom. The legalization of abortion in terms of the privacy right reveals the individualistic nature of the American legal system to institutionalize rights of self-determination in terms of principles related to personal freedom. This process, however, cannot be understood as readily reflecting a unified values system. While the morality of abortion was already at issue before Roe v. Wade, particularly the polarization of the debate since the 1973 Supreme Court decisions reflects the severe strife over normative issues centering around the privacy right of women versus the protection of fetal life. The subsequent catalysts in this lifeworld debate, the 1989 Supreme Court decision in Webster and the 1992 ruling in Casey, were able to mobilize pro-choice forces in much the same way as the 1973 decisions served as a stimulant for pro-lifers.

Finally, the constitutional legality of abortion has since 1973 also been transformed from symbolic into technocratic law. Setting the boundaries of the states' interests to regulate abortion, the Supreme Court not merely referred to medical views on abortion but fully embraced a technological form of reasoning. As the Court stated in Roe, the ruling was reached "free of emotion and predilection. We see earnestly to do this, and, because we do, we have inquired into . . . medical and medical-legal history" (Roe 1973:709). But precisely because of the intensity of the moral issues involved with abortion, I hypothesize, the medical technocratization of abortion law, while entailing definite ambivalent implications, has never been central to the debate and has not substantially affected the course taken by the state legislatures since the legalization of abortion in 1973. After Roe v. Wade, states that sought to pose limits on the legal abortion right did indeed not touch on the trimester framework but specified various procedural requirements and restricted abortion funding. Recent legislative attempts to further limit access to abortion after the Casey decision have likewise not focused on viability but introduced restrictions that meet the undue burden standard (Rogers 1994; Tholen & Baird 1995).

The theories discussed in this article are admittedly not very strong in determining precisely the relative weight of the various contexts influencing abortion law. Moreover, it is clear that there have been shifts over time in the legal abortion debate (e.g., from the judicial activism of the early 1970s to the political interventions at the presidential level of the 1980s), more specific than the theories could account for. Acknowledging these limitations, the proposition I developed on U.S. abortion law implicitly adopts a two-level perspective of society that offers support for Habermas's approach of system and lifeworld. Rather than Luhmann's conception of autopoietically closed systems, or Parsons's perspective of symmetrically interrelating subsystems, Habermas's theory better captures the delicate nature of the normative abortion debate and its repercussions for law. From a broader theoretical viewpoint this calls for a clarification of, on the one hand, the role of law in terms of the strain between legitimacy and legality, and, on the other hand, law's position between lifeworld and system. The first issue primarily relates to Luhmann's conception of law, while the latter emerges most clearly from a confrontation of Parsons's and Habermas's theories.


The various intrusions in the legal abortion debate reveal a central weakness in Luhmann's approach to modern law. While Luhmann's theory may aptly apply to other areas of law, in the case of the history of U.S. abortion law, the perspective cannot uncover the significance of political and cultural factors. The objection could be raised that extra-legal factors always have to be processed in legal terms if they are to actually shape law. However, the crucial point is that while Luhmann's theory concedes that there are "also input/output relations between different subsystems of the society" (Luhmann 1994b:50), it does not provide any analytical tool that can account for these transmissions (Rottleuthner 1989:794-95). On the contrary, autopoietic theory states that "the legal system is a closed system, producing its own operations, its own structures, and its own boundaries by its own operations" (Luhmann 1992b:1425). At the expense of a multiple framework that considers law's continued association with other social subsystems (Kargl 1990; Teubner 1988b), autopoietic theory reduces the legal system to the workings and internal justifications of lawyers' law "sociological theory attempts to reconstruct not only jurists' actions, but also their conceptions" (Luhmann 1989:143, my emphasis).

Stripped of falsifiability (Machura 1993; Munch 1992), Luhmann's approach is inadequate in the abortion case in that it cannot uncover if and why legal norms are, or are not, a valid source of integration. The shortcoming of the theory is perhaps most evidently and tragically testified by the fact that since 1973 there have occurred five shootings of abortion doctors and security escorts, some 91 arsons, 38 bombings, and more than 300 invasions and 6,000 blockades of abortion clinics, in addition to at least one reported murder attempt on a pro-life demonstrator (Baldwin 1995:1117; Hubbell 1995:1061; The New York Times 1994b). To be sure, such shocking events, as well as the many less spectacular voices of dissent, do not undermine the legitimacy of the legal system--on the contrary, they confirm it--but they do indicate that certain legal norms may lose validity and integrative force. Luhmann's perspective, however, seems to hold on to an illusory effectiveness of the legal system that cannot critically explicate what law can and cannot do, nor elucidate how law is influenced by "cultural frameworks, economic calculations, and political power relations" (Munch 1992:1467).

Of course, abortion laws determine the legality or illegality of an abortion, which may, as one of many factors, also affect a woman's decision to have an abortion. This could be indicated by the inverse correlation between the number of abortions and the restrictiveness of legalized abortion in the various U.S. states (Craig & O'Brien 1993:351-52). However, research has also revealed that national abortion rates were already increasing substantially prior to the Roe v. Wade decision (Hansen 1980) and that they have not changed significantly since then, nor since the elimination of federal Medicaid funds for abortions with the Hyde amendment (Wetstein 1995). This would justify more attention to the impact of policy changes at the level of the states (Halva-Neubauer 1993; Segers & Byrnes 1995:11-14), because there has been a sudden decline in out-of-state abortions after Roe v. Wade and a trend toward geographic equalization of abortion rates across the states (Wetstein 1995:616). Yet at the state level, too, a correlation between abortion rates and restrictiveness of abortion statute may be spurious in terms of religious composition, social movement mobilization, demographics, and other factors influencing both behavior and law (Wetstein 1995:609-10). The relative restrictiveness of an abortion statute, in any case, does not determine whether a legal right to abortion will or can be put into practice given all sorts of practical circumstances, such as financial means or mere availability of abortion services.


In terms of my analysis of American abortion law, Parsons's perspective usefully points out that political influences in the legal system are prevented from instrumentalizing law to advance power, and rightly emphasizes the importance of the legal protection of individualistic rights in the common law tradition (Parsons 1964:353). But Parsons's perspective of law also implies an objectivist outlook (Alexander 1983:152), which prevents a critical evaluation of law's interdependencies with a plurality of diverging values. I reject the all too often and hastily defended view that Parsons's sociology cannot account for social change, for his theory can be treated as a necessary analytical basis for the study of concrete social systems (Munch 1982:787). But although Parsons acknowledges possible breakdowns in actors' values and beliefs systems (Parsons & Shils 1951:45-46), he also assumes that legal processes rectify social situations of dissent by procedurally negotiating between different values (Parsons 1962a 72, 1962b, 1975:227-28). Even when a weaker version of Parsons's approach is accepted, for instance, that integrative disorder will occur when law does not function (e.g., Parsons 1951:51213, 520), this position still denies the possibility that law itself can actually heighten social disintegration. Such is indeed the case with abortion law which, rather than provide cohesion, has contributed to accelerate conflicts over the morality of abortion.

Habermas's conception of the relationship between law and lifeworld appears better suited to account for the complex legal abortion debate. Habermas's theory of the ambivalent nature of modernity illuminates how diverging lifeworld claims, oriented "to processes at the boundaries between system and lifeworld" (Habermas 1985:357), are confronted with the legal system and that the resulting legal situation is characterized less by integration than by enduring conflicts and tensions. Habermas's perspective emphasizes that in light of a plurality of lifeworlds, harboring a multitude of ethical values, society's need for integration becomes more and more problematic. Writes Habermas, "the sphere of questions that can be answered rationally from the moral [and hence legal] point of view shrinks in the course of development toward multiculturalism" (Habermas 1991:91). This is not to deny that the legal system serves no integrative functions, nor that the legalization of abortion since 1973 did not contribute to problem solving, such as unwanted childbirth and hazardous back-alley abortions, and found much public support. But, as noted before, not only has a qualified legalization of abortion generally found support since Roe (Wilcox 1995), public opinion on abortion has also become increasingly polarized. In this normative conflict, any legal determination of abortion always represents a determinate outcome. Particularly under conditions of an intensified proliferation of diverging views, with different claims from ethnic minorities, religious groups, women's rights movements, as well as the counter-reactions they invoke, modern societies face the paradox of mounting problems of dissent at the same time when there is an increasing need for social integration in light of a plurality of lifeworlds. The debate over abortion law is in this respect a crucial indicator of modern societies' capacity to maintain social solidarity and preserve rights of self-determination.


On the basis of a historical analysis of U.S. abortion law, I have argued for a perspective of law that recognizes the merits of the theoretical attention to boundary-maintaining systems, yet that also avoids some of the crucial pitfalls commonly associated with functionalist assumptions of social cohesion and integration. Of course, my reflections on the role of law in modern society and on the strengths and limitations of the discussed theories are relative to the analysis presented here. Apart from my focus on the evolution of constitutional law over a relatively short period of time, abortion law may present a rather particular case study in that the issue is highly resonant among the public at large and therefore especially prone to a variety of outside influences. With these limitations in mind, what my analysis suggests is that rather than adhering to a perspective of law as an order-maintaining institution, modern law should be conceived as a factual determination in a normative conflict, with which a plurality of lifeworlds is confronted. The legal system aspires to redress social disintegration, and particularly on issues as sensitive and divisive as abortion. However, at the same time, the legal system also mirrors the continuing struggles over the moral boundaries of society, and, in the case of abortion law, over the boundaries of life.(n17) Modern law not only prescribes rules intended to regulate conflicts but also provides avenues to challenge those rules whenever values are claimed unrepresented in, or challenged by, law. Situated at the crossroads of system and lifeworld, legal norms set boundaries to society and can at the same time be used to challenge those boundaries.

At the analytical level, my viewpoint is congruent with criticisms of (Parsonsian) systems theory that stress its too abstract character (Barber 1992) and instead argue for substantivized systems perspectives (Sciulli 1992) and a recognition of the limited realization of boundary-maintenance (Eisenstadt 1985:109-12; Schur 1968:82-85). Indeed, in the case of abortion law, the indeterminate universalism the legal system aspires to actually presents determinate universal law, which is indeed "applicable to the society as a whole" (Parsons 1964:510), but certainly not legitimated by each and every legal subject (Bredemeier 1962; Lidz 1979:14). The proliferation of conflicting views and the intensification of the abortion debate since Roe v. Wade reveal that, far form being an integrator in light of a plurality of lifeforms, law can well contribute to conflict and change. Abortion law has done little to integrate social action and has instead, as one authoritative factor, contributed to heighten conflicts between opposing parties. For whatever the law on abortion, it can never simultaneously satisfy conflicting, pro-life and pro-choice, claims. In a society characterized by an increasing diversity of values and beliefs, law becomes more necessary and more impossible.


(n1.) In the 1950s, Parsons also prepared a book on the American societal community in which would be included "a fairly extensive treatment of the place of the legal system in American society" (Parsons 1962a 56). But this work was never published.

(n2.) This conforms to Parsons's conception of social evolution that transformations in the fiduciary system are most important (Parsons 1951:496-502, 1966, 1970a:853-58, 1977a), a viewpoint which corresponds with Parsons's views on the fundamentally religious nature of society (Parsons 1937:411-29, 1959/1960:589-92).

(n3.) In light of the previous discussion, it may cause little surprise that Habermas and Luhmann have received Parsons's theory differently. Yet, the striking fact is that while Luhmann (a former student of Parsons) defends a kind of hyper-functionalism, he has completely turned away from Parsons's work to develop a distinct autopoietic theory of society (Luhmann 1994b:38-39). Habermas, on the other hand, is well-known for his Marxist roots in the tradition of the Frankfurt School, but in his intellectual development he has drawn more and more from Parsons's theory, at first rather modestly from the viewpoint of a philosophy of science (Habermas 1967:74-88), later more elaborately in the construction of a social theory (Habermas 1981b:199-299, 1981c).

(n4.) Social integration, or the famous question "How is social order possible?," remains at the heart of the theories of Parsons and Habermas. But whereas Habermas and Parsons so address the dilemmatic structure of rationalization well known since Weber, to Luhmann it does not even make sense to characterize his work as "un-Weberian" (Luhmann 1994b:44). A useful discussion of Parsons's and Habermas's reception of Weber's sociology of law, and its centrality for perspectives of procedural rationality in their work and in Lon Fuller's, is provided by Sciulli (1992).

(n5.) The secondary literature has mostly discussed Parsons's sociology of law in relation to his general social theory (Bredemeier 1962; C0tterrell 1984:84-95; Damm 1976:111179; Lidz 1979; Mayhew 1971; Munch 1982:785-788; Rocher 1980). Other writings have discussed Parsons's perspective as part of a critique of functionalism (De Espinosa 1980:53-55; Grace & Wilkinson 1978:86-92; Sampford 1989:104-116; Schur 1968:79-82) and in terms of its explanatory power to account for the evolution of modern law (Even 1990:29-31; Munch 1987:145-49; Turner 1980).

(n6.) The Roe decision was reached following two Supreme Court hearings after the case had been granted review on May 3, 1971 (Craig & O'Brien 1993:1-33; Epstein & Kobylka 1992:137-202; Faux 1988:231-302). On December 13, 1971, Chief Justice Burger opened the first oral argument before an incomplete Court of seven Justices (two deceased Justices, Black and Harlan, had not yet been replaced). In May 1972, Justice Blackmun drafted the Court's opinion and expressed concern that a nine-person Court was required to decide on such a delicate matter. A second hearing, before a complete Court, was held on October 11, 1972. The final decision was read out on January 22, 1973. Justice Blackmun's opinion was joined by Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell. Justice Rehnquist wrote the dissent in which he was joined by Justice White.

(n7.) An undue burden exists when the purpose or effect of a law places "substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability" (Casey 1992:688).

(n8.) Some states, such as Washington, Connecticut and New Jersey, have very liberal abortion laws, whereas other states, including Alabama, Louisiana and Pennsylvania, limit access to abortion with many restrictions such as informed, spousal and parental consent requirements and mandatory waiting periods (Byrnes 1995; Craig & O'Brien 1993:351-353; Muldoon 1991:171-72).

(n9.) The author of Roe, Justice Blackmun, was in fact a Nixon appointee. Unexpectedly, he was to become one of the most outspoken liberal justices, especially on abortion.

(n10.) At the gubernatorial level, too, the abortion debate is more complex than an opposition between Democrats and Republicans. Governor Robert P. Casey of Pennsylvania, most notably, is one of the most outspoken pro-life Democrats. During his office the restrictive Pennsylvania Birth Control Act, originally enacted in 1982, was amended and brought before the Supreme Court, where it led to one of the most restrictive abortion rulings (Casey 1992). The state of Pennsylvania also harbors among the best organized pro-life groups lobbying for legislation (Freind 1993).

(n11.) After the retirement of Justice White, President Clinton nominated Justice Ginsburg, who publicly stated her pro-choice views (The New York Times 1993). She became the 107th member of the Supreme Court on August 10, 1993 (The Washington Post 1993b). Clinton also nominated Stephen Breyer, whose abortion stance is expected to be liberal (Segers & Byrnes 1995:10), to replace Justice Blackmun. Breyer was sworn in August 1994 (The New York Times 1994a).

(n12.) Elders was to be replaced by Henry Foster, but during heated nomination hearings Foster gave conflicting accounts on the number of abortions he had performed, rallying protest from abortion-foes, prompting Clinton to reaffirm his liberal views on abortion, and with competition from the Republican presidential nominees well underway, eventually leading to kill Foster's nomination late June 1995 (The New York Times 1995b).

(n13.) Restrictive bills on abortion introduced in Congress in 1995, for instance, are reported to have been taken directly from legislation drafts prepared by the Christian Coalition, the United States Catholic Conference, and the Traditional Values Coalition (The New York Times 1995a).

(n14.) Thus Parsons posits a close relationship between the societal community (including law) and the values system. "The integratively oriented code of the societal system," he writes, "must be anchored in a value system if it is to have a basis of legitimation . . . In highly differentiated societies, this basic code system is the core of the legal system" (Parsons 1968b:191).

(n15.) Survey data indeed reveal that attitudes on abortion have polarized in recent years (DiMaggio, Evans & Bryson 1996: Franklin & Kosaki 1989; Marmon & Palley 1986; Wlezien & Goggin 1993) and that pro-life and pro-choice participation has fluctuated in reaction to Supreme Court rulings and federal policy decisions on abortion (Craig & O'Brien 1993:43-68).

(n16.) With respect to the difficulties of reconciling diverging normative concerns, Habermas in fact briefly discusses the abortion controversy (Habermas 1991:59-60). He argues that because both sides in the debate forward strong arguments to defend their respective claims, the issue remains undecided from a moral viewpoint. Habermas suggests that the controversy can be resolved either by fair compromise or by finding a way to secure the coexistence of different views on abortion. How that can be achieved is a matter Habermas does not address (Rosenfeld 1995:1177-79).

(n17.) Recent currents in the sociolegal scholarship strike similar themes in conceptualizing the dualism between law as rule and law as resource (Stryker 1994) and the continuing collisions between formal and substantive legal rationalization (Savelsberg 1992, 1994).


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Griswold v. Connecticut, 381 U.S. 479 (1965).

United States v. Vuitch, 402 U.S. 62 (1971).

Roe v. Wade, 93 S.Ct. 705 (1973).

Doe v. Bolton, 93 S.Ct. 739 (1973).

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

Maher v. Roe, 432 U.S. 464 (1977).

Beal v. Doe, 432 U.S. 438 (1977).

Bellotti v. Baird, 443 U.S. 622 (1979).

City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).

Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986).

Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989).

Hodgson v. Minnesota, 497 U.S. 417 (1990).

Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).

Rust v. Sullivan, 111 S.Ct. 1759 (1991).

Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992).

Bray v. Alexandria Women's Health Center, 113 S.Ct. 753 (1993).

NOW (National Organization for Women) v. Scheidler, 127 L.Ed.2d 99 (1994).

Madsen v. Women's Health Center, 114 S.Ct. 2516 (1994).

Schenck v. Pro-Choice Network of Western New York, 1997 U.S. Lexis 1270 (1997).

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