Opinion | Parental Authority Gets a Boost From Dobbs

Justice Alito followed the standard that Chief Justice

William Rehnquist

laid down in Washington v. Glucksberg (1997), which rejected a claim that the Constitution protects a right to physician-assisted suicide. Glucksberg held that the 14th Amendment’s Due Process Clause protects individual rights if and only if they are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”

Unlike assisted suicide and abortion, parental rights fit squarely within the “deeply rooted” standard. The Supreme Court recognized that parents’ rights were constitutionally sacrosanct nearly a century ago, in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Both decisions were written by Justice

James McReynolds,

and both dealt with a vast intrusion of government power into traditionally private matters driven by the World War I-era push for a domestic monoculture to serve the nation’s wartime exigencies.

In Meyer, the justices addressed a Nebraska law that proscribed classroom instruction in German, Italian, French, Spanish and other modern languages, which were deemed to have a divisive effect on the young. The Oregon law in Pierce was even more drastic in supplanting parental authority over their children’s education: The law banned virtually all private education through the eighth grade.

In Meyer, decided by a 7-2 majority, McReynolds compared the Nebraska law with the military indoctrination of male youth that was characteristic of ancient Sparta but entirely out of place with American self-government. In an apt rejoinder to today’s antiparent ideologies, the court in Pierce unanimously concluded that the constitutional order presupposed a sphere of liberty protecting the relationship between parents and their child: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

In the ensuing decades, the high court reiterated the fundamental status of parental rights. In May v. Anderson (1953), the justices noted that a mother’s right to the “care, custody, management and companionship of her minor children” is an interest “far more precious” than any property right. In Wisconsin v. Yoder (1972), they concluded that parental rights are firmly rooted in the “history and culture of Western civilization” and “established beyond debate.” And in Troxel v. Granville, decided in 2000, the Supreme Court invalidated a Washington law that empowered the state’s courts to disregard the views of custodial parents as to whether “third parties”—in this case grandparents—should have visitation rights to minor children. In an opinion for a four-justice plurality, Justice

Sandra Day O’Connor

emphasized that parental rights were “the oldest of the fundamental liberty interests,” dating back to Meyer and Pierce.

Even before Dobbs, federal judges were citing this line of cases in upholding recent parental-rights claims. In May, Judge

Holly Teeter

enjoined a Kansas school policy prohibiting teachers from revealing a transgender student’s “preferred first name and pronouns” when communicating with parents. Although the plaintiff in Ricard v. USD 475 was a teacher, Judge Teeter went out of her way to chastise the school’s intrusion on parental rights. Quoting Pierce and Troxell, she questioned why a school would even claim an “interest in withholding or concealing from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being.”

In March, Judge

Trevor McFadden

issued a preliminary injunction against a local law allowing children 11 and older to obtain vaccination without their parents’ consent and requiring healthcare providers and schools to conceal immunization records from parents who have requested a religious exemption. Parents alleged in Booth v. Bowser that the government had created a “pressure-cooker environment, enticing and psychologically manipulating [their minor children] to defy their parents and take vaccinations against their parents’ wills.” Judge McFadden challenged the city to present evidence of the law’s public benefit sufficient to justify the absence of parental consent.

The Supreme Court hasn’t always broken down along predictable ideological lines in deciding parental-rights cases. Rehnquist joined Justice O’Connor’s opinion in Troxel, as did Justices

Ruth Bader Ginsburg

and

Stephen Breyer.

Justice

Antonin Scalia

dissented, arguing that “if we embrace this unenumerated right . . . we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law.”

But now that the majority has embraced the idea of “deeply rooted” unenumerated rights, parents can breathe a sigh of relief that the Constitution is on their side.

Mr. Toth is an attorney in Austin, Texas.