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Overturning Roe Could Threaten Rights Conservatives Hold Dear

Parental rights stem from the same liberty that the Supreme Court just began rolling back.

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In the early 20th century, a powerful Progressive movement argued that the fundamental rights of defenseless children superseded the rights of parents — and that the state had a duty to protect and promote them.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.