American parents who believe public schools are violating their right to guide their children’s upbringing have scored recent ballot-box victories from Virginia to San Francisco. They may also have a judicial case for redress in court, made easier by the Supreme Court’s ruling last month in Dobbs v. Jackson Women’s Health Organization.
That decision overturned the constitutional right to abortion, which isn’t mentioned in the Constitution. Neither are parental rights. But Justice Samuel Alito’s majority opinion recognized a crucial distinction that militates strongly in favor of the latter.
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. Read more…