Excerpted From: Naomi Cahn, The Political Language of Parental Rights: Abortion, Gender-affirming Care, and Critical Race Theory, 53 Seton Hall Law Review 1443 (June 12, 2023) (162 Footnotes) (Full Document)


NaomiCahn.jpegIn Unpregnant, seventeen-year-old Veronica takes a pregnancy test at school and discovers that she is pregnant. She lives in Missouri, which requires parental consent before a minor can obtain an abortion, and Veronica learns, through a relatively complicated process, that the nearest clinic where she can obtain an abortion without parental consent is in Albuquerque, New Mexico. Veronica does not want to tell her parents, lying to them about her whereabouts, as she and a friend drive cross-country to the clinic. She ultimately gets the abortion, but to ensure she has enough money to come home, she ultimately confesses to her mother why she left.

Or consider the case of G, a seventeen-year-old from Texas, who, represented by an attorney, asked a judge to authorize an abortion for her. She graduated from high school, was working as a cashier at a supermarket, and had broken up with her boyfriend; neither of them thought they were ready to have children. The judge sent her to a “crisis pregnancy center” and denied the abortion.

Long before Dobbs, states imposed restrictions on the abortion rights of minors, even when minors and their parents agreed on the decision to get an abortion. Where a minor sought an abortion without the consent or notification of their parents, however, the minor could constitutionally be required to obtain consent from the court.

The parent-child-state triad is a well-established concept in American family law, with the presumption that parents act in the best interests of their child while simultaneously recognizing that the State can intervene in the family at the point of abuse or neglect and mandate education to a certain age. The balance has always had tensions, and doctrines such as the “mature minor” and emancipation have softened the full scope of parental control. The overruling of Roe v. Wade and controversies over gender-affirming care and “appropriate” material to be taught in schools have highlighted these tensions: what happens when a minor, perhaps even with the support of their parents, wants an abortion but lives in a state with restrictions or an outright ban? What happens when a minor seeks gender-affirming care, either with or without parental support, but lives in a state that considers such care abusive? What happens to children's interests in states that prescribe the teaching of gender identity or critical race theory? And what happens when a minor seeks contraception without parental consent?

The answers to these questions turn, somewhat, on parental rights. But there is a partisan divide on support for children, with differing state approaches; this divide informs the framing of legally protected parental rights. Moreover, parents have differing rights and interests. Some parents, for example, support their children's access to gender-affirming care, while other parents, rather than provide those services for their children, instead fear that they will be investigated for child abuse. This Article suggests that the parent-child-state triad has another participant, almost a fourth leg: political partisanship. The rhetoric of parental rights is used as a Trojan horse for restricting abortion rights, banning gender affirming care, preventing the teaching of critical race theory, and even limitations on “cabaret” (or drag) shows--regardless of what parents actually want--thus, it is not really about parental rights at all.

The first Part of this Article reviews the research on the impact of access to contraception and abortion for teens. The second Part turns to the existing legal framework for such access, while the third part surveys pre- and post-Dobbs conflicts that center on protecting parental rights over their children's rights to reproductive care. The next Part explores the reasons for increasing political partisanship in the country as a whole, framing the broader culture wars, and bringing in related issues that allegedly implicate parental rights, such as gender-affirming care and school curricula that include critical race theory and gender identity. The final Part concludes.

[. . .]

Parental-involvement laws reflect political efforts to ban abortion, reject transgender rights, and deny the country's history of race relationships by preventing the teaching of Critical Race Theory, all cloaked in a rhetoric that appeals to traditional values of parental authority. Judicial bypass hearings allow courts to override not just the needs of minors seeking an abortion, but also the recommendations of healthcare professionals. While Roe was, at times, criticized for its overreliance on medical decision-making, its respect for healthcare professionals' judgment placed abortion access in the hands of those who are trained to evaluate health needs. Dobbs puts it in the hand of state legislators.

State involvement is typically warranted--and justified--as protecting minors' interests. But the fourth actor, political interests, means that state action becomes not a means for protecting minors but a smokescreen for values that may have nothing to do with the actual interests of minors. Parental rights rhetoric can instead be seen as undermining minors' decisions and the rights of parents who support those minors. If states truly wanted to protect minors, they would undertake more comprehensive public welfare programs that actually provide the support that minors and their families need, such as healthcare, education, affordable housing, and nutrition. If they wanted to ensure that minors were protected and fully informed, they might provide evidence-based resources. While abortion access for minors may appear to be part of ongoing debates about the extent of parental rights, the questions are in fact about politics, with minors' interests subordinated to partisanship. The parent-child-state triad becomes a triangular pyramid, with partisanship at the top point, controlling the parent, child, and state.

 Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc '69 Research Professor in Democracy and Equity, University of Virginia School of Law.