Conservatives are celebrating the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization as a legal victory that protects the rights of the unborn child. But the decision could have unforeseen implications for political causes that conservatives hold dear, especially parental rights. Dobbs reversed the seminal decision in Roe v. Wade (1973), which was based on two early 20th-century Supreme Court decisions that found that the 14th Amendment protected fundamental civil liberties, namely the rights of parents to raise their children as they see fit.
While many commentators have focused on the danger posed by Justice Samuel A. Alito Jr.’s reasoning in Dobbs to other fundamental liberties protected by Supreme Court decisions based on Roe, such as same-sex marriage, the implications of the decision for parental rights have received little attention. But they should.
The court’s decision in Dobbs begins the process of rolling back the 14th Amendment’s protections for civil liberties, which may eventually threaten the Supreme Court decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). The circumstances that led to Meyer and Pierce, where sweeping laws passed by democratic majorities threatened the ability of minorities to make decisions about their family life, also foreshadow the risks of a post-Dobbs world.
In the early 20th century, a powerful Progressive movement argued that the fundamental rights of defenseless children superseded the rights of parents — and that the state had a duty to protect and promote them. This push included important campaigns to protect children from the burdens of industrial labor, promote children’s health and secure the right of all children to an education. There was always an undercurrent of nativism in these movements. Reformers who championed child labor laws and compulsory schooling were particularly concerned about the large numbers of poor immigrants who entered the United States at the turn of the century, who often allowed their children to work or refused to “Americanize” them in public schools.
Amid the rising popularity of eugenics and “race science,” the nativist impulses in the movement for children’s rights reached a fever pitch during and after World War I. The anti-German sentiment lingering from the war drove the Nebraska legislature to require that all children be schooled in English. In Oregon, during a brief surge of Ku Klux Klan power, citizens took advantage of an initiative referendum process to put a measure on the ballot that required all children to be educated in public school. An overwhelming majority of voters supported the measure, which promised, in effect, to ban private and religious schooling.
These laws produced the court challenges that the Supreme Court ruled on in Meyer and Pierce.
In Meyer, a German American who taught in a Lutheran school challenged his arrest under the Nebraska law for teaching in a language other than English. In Pierce, Oregon Catholics challenged the law compelling students to attend public schools. The National Catholic Welfare Council perceived the case to be so significant to Catholic parents across the United States that the council took over the case when Oregon appealed an initial decision, and recruited one of the most prominent conservative Catholic constitutional scholars to argue the case before the Supreme Court.
At the time, the political division over the Oregon and Nebraska laws did not map neatly into partisan or ideological camps. Some liberals and populists championed compulsory public education as a class-leveling exercise, but so, too, did the Klan, which stoked and capitalized on anti-Catholic and anti-immigrant sentiment. Overall, Americans who supported the laws found common ground in arguments that all children had a right to a public school education and that the interest of the state in its children as future citizens trumped the prerogatives of parents. Several states, especially in the Midwest and West, came close to introducing similar laws as those in Nebraska and Oregon.
Although many liberals were outspokenly critical of the nativist impulses behind these laws and believed they constituted state overreach, conservatives led the opposition to both laws. They turned to the Constitution as a check on legislative overreach, arguing that the ability of parents to make decisions about their children was a fundamental American liberty. If democratic majorities could make sweeping decisions on behalf of all children, asserted William Dameron Guthrie, the conservative Catholic constitutional lawyer who argued before the Supreme Court in Pierce, “the state-bred monster could then mean little to his parents and such a creature could be readily turned to whatever use a tyrannical government might conceive to be its own interest.”
The privacy of the family therefore constituted the cornerstone of republican governance. Parents had the right — and responsibility — to rear their children as they saw fit. “What right,” Guthrie asked the justices, “could be more truly and completely the essence of liberty?”
The Supreme Court’s decisions in Meyer and Pierce did not extend unfettered rights to parents; the court acknowledged that parents had a fundamental right against which the interests of the public and the legislature must be balanced. But the decisions constituted an important constitutional bulwark against unchecked majoritarianism.
The decisions broke ground in extending the 14th Amendment’s due process protections to civil liberties for the first time. This holding, in turn, became the foundation for the idea of a right to privacy — which the court first articulated in Griswold v. Connecticut (1965). In that case, the justices affirmed the right of married couples to use contraceptives without government interference. They held that a right to privacy was a fundamental liberty protected by the 14th Amendment. Eight years later in Roe, a seven-justice majority extended this right to privacy to include the constitutional right to seek an abortion without excessive government restrictions.
Griswold and Roe subsequently served as precedent for a range of Supreme Court cases that have broken ground in recognizing fundamental civil rights protected by the 14th Amendment, ranging from interracial marriage in Loving v. Virginia (1967) to consensual sex in Lawrence v. Texas (2003) and same-sex marriage in Obergefell v. Hodges (2015).
Yet, even as the court continued to forge new ground in creating a private sphere where Americans could do as they pleased in their family life without undue government interference, an increasingly politically powerful conservative coalition began arguing that the state must limit or ban abortions because it had a duty to protect the fundamental rights of the unborn child.
Unwittingly, the antiabortion movement was echoing the claims of those who, in touting the fundamental rights of all children, sought to pass the Nebraska and Oregon schooling laws. They, too, saw abridging the liberty of parents as justified by the universal rights of children — precisely what the court ruled against in Meyer and Pierce.
In Dobbs, Justice Alito tries to differentiate Roe, and the 1992 Supreme Court decision Planned Parenthood v. Casey that affirmed Roe, from the other 14th Amendment cases regarding family privacy. Alito argues that abortion is unique because it involves the rights of a third party, namely the fetus. Given the unique “moral question” posed by Roe and Casey, he writes, it is time to “return the issue of abortion to the people’s elected representatives.” This scenario, however, is not all that far removed from the original parental rights cases, in which a public majority supporting the “rights of the child” and the interests of the state sought to pass sweeping and restrictive laws that imperiled the parental rights of religious and ethnic minorities.
In the wake of several conservative challenges to local and state laws mandating masks in public schools on the grounds that they abridge parental rights, it is not difficult to imagine a scenario that turns Dobbs on its head — in which the “people’s elected representatives,” as Alito puts it, again pass a sweeping law to protect the rights of all children and it is conservatives who are clamoring for constitutional grounds to protect the rights of parents to make decisions free of undue state interference.