The Limits of Parents' Rights
During a Republican presidential primary debate in December 2023, moderator Megyn Kelly asked Chris Christie why he did not favor a ban on gender-transition surgery for minors. The former New Jersey governor responded:
[W]e are out there saying that we should empower parents in education....I agree. We should empower parents to be teaching the values that they believe in in their homes without the government telling them what those values should be. And yet we want to take other parental rights away. I'm sorry. As a father of four, I believe there is no one who loves my children more than me....Every once in a while, parents are going to make decisions that we disagree with. But the minute you take those rights away from parents, you don't know...what rights are going to be taken away next.
If you listened closely enough to the exchange, you might have heard some Republicans' heads explode.
In principle, of course, Christie is right: His rhetoric crystalizes the pro-family argument that many on the right have been making for years, if not decades. Traditionally the party of small government, Republicans respect the family and the decisions that parents make for their children. They respect families' religious beliefs. They have long favored allowing local communities to make curricular choices in schools. And they agree that no bureaucrat is better equipped to know what's best for a child than that child's parents.
But the rallying cry of "parents' rights" has gained popularity since the pandemic. And as its use has spread, its definition has grown murkier. This is a bipartisan problem, but the right in particular seems to have backed itself into a rhetorical corner. As activists begin to push new federal legislation and even a constitutional amendment on the subject, it's worth revisiting what's truly at stake in the parental-rights debate.
PARENTS MOBILIZED
There was relatively little interest in parents' rights in America until the Covid-19 pandemic. Online searches for the term ticked up in 2022, then spiked the following year, in March 2023. Whether it was locking playgrounds, shuttering schools, or forcing young children to wear masks in public, parents everywhere suddenly awakened to the state's incursion into every aspect of their lives.
Then there were the vaccine mandates. That state governments were considering forcing parents to immunize children — the population least likely to be adversely affected by Covid-19 — despite concerns about the vaccines' potentially negative long-term health effects further intensified parents' sense that bureaucrats were making far too many decisions about their children while ignoring parents' concerns.
From this outrage grew an educational-choice movement like nothing that had come before. In 2023 alone, 20 states passed legislation that either created or expanded school choice. As Ryan Walker, executive vice president of Heritage Action for America, told the Washington Examiner:
Americans across the country have created incredible nationwide momentum to put parents back in the driver's seat through efforts to flip school boards, hold politicians accountable for their failed policies, and advance legislation in dozens of states to expand education and give parents more choice over how their children are educated.
It is easy to understand how the catchphrase "parents' rights" has mobilized millions of mothers and fathers across the country. Rising up against state intrusions into private family decisions is a cause few American parents would shy away from. But it's worth remembering that parents' rights, like any rights, are not absolute. Before things get out of hand, conservatives might want to think more carefully about where the boundaries of those rights might lie.
Kay Hymowitz of the Manhattan Institute says she has been concerned about this question for a while — probably since 2021, when Virginia gubernatorial candidate Terry McAuliffe famously encapsulated the disdain for parents that many believed school officials secretly harbor with the line, "I don't think parents should be telling schools what they should teach." It's easy to say that parents should have a role in determining what their children learn in school, Hymowitz notes. But in the context of public schools, what exactly should that role be?
Hymowitz also finds some complaints about materials kept in school libraries "a little extreme." While she recognizes that much of the material that parents object to is in fact obscene, unthinkingly promoting parents' rights means that "some nutcase who doesn't want any gay characters anywhere in high school libraries" has veto power over the books contained therein. "Who gets to say?" she asks. "I think it is a problem."
But parents' right to determine how their children are educated is only part of the problem. And it may be the easiest one to solve: There is case law on the subject dating back to the early 20th century.
The trend began in 1925, when the Supreme Court recognized parents' right to enroll their children in private schools, both secular and religious, in Pierce v. Society of Sisters. Nearly 50 years later, in Wisconsin v. Yoder, the Court upheld the right of Amish parents to withdraw their children from school at age 14. Courts have similarly upheld parents' demands for other kinds of religious accommodations in schools, such as the right to sit during the pledge of allegiance.
More recently, the courts have recognized parents' rights to homeschool their children and to use public vouchers at religious schools. Thanks to the Supreme Court's 2020 decision in Espinoza v. Montana Department of Revenue, state constitutions' anti-Catholic Blaine amendments — which prohibited the use of public money at religious institutions — are a dead letter. After a century of fighting, there is little doubt that the parental-rights revolution has won an all-out victory — at least in the education arena.
DUELING DUTIES
But the issue is thornier — and tends to divide public opinion to a greater extent — when it comes to parents' rights if the child's health is at stake.
Even before the Covid-19 vaccine was developed, a small but vocal group of parents refused to have their children vaccinated. Many of these parents were progressives who had come to believe that there was a connection between childhood vaccination and the development of autism. Though the vast majority of scientists agreed that the vaccines were safe, many states created exceptions to school immunization requirements based on religious or other conscience-based objections.
Then after an outbreak of measles in New York in 2019, officials not only barred unvaccinated people from certain public spaces, they also issued a mandatory vaccine requirement for anyone over six months of age. There was no question about whether measles was a deadly disease, but the country had been relying on a certain level of herd immunity to ensure that the disease didn't spread. Once the vaccination rate fell too low, it became impossible for the state to guarantee public safety.
Several parents filed suit, arguing the mandate was "arbitrary, capricious, contrary to law and in violation of petitioners' rights under the United States Constitution and New York State law." A federal appeals court ultimately ruled against the parents, leaving in place rules that made it more difficult for children to receive an exemption from immunization requirements in schools.
The Covid-19 pandemic shifted public opinion on the question of vaccines more generally, particularly on the right. Since it was not clear whether the vaccines protected those other than the vaccinated themselves, the government's role in adopting and enforcing vaccine mandates grew tenuous. And with trust in government and the medical profession declining precipitously during the pandemic, it's not surprising that, in addition to left-wing vaccine skeptics, there are now plenty on the right as well. These parents not only reject Covid-19 vaccines, they are also less likely to get themselves and their children vaccinated for the flu and other preventable illnesses.
In balancing the interests of parents and those of the state, vaccines differ from other medical interventions in that they often affect the health of others. But when it comes to other treatments, the courts have largely sided with parents.
In Pierce v. Society of Sisters, the Supreme Court set forth the key rationale for deferring to parents in the educational realm: "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." Melissa Moschella, a philosophy professor at Catholic University, echoes the Court's emphasis on parental duty in the context of medicine. "Parents' rights protect parents' duties," she observes. "They protect what you might think of as [their] natural sphere of authority....[A]bsent evidence that parents are failing or doing something that is dangerous to the public good, the state should defer to parents' judgment about what's in the best interest of the child."
And in fact, courts generally overrule parents only when the life of the child is at stake — most famously in the case of State v. Perricone, where two Jehovah's Witnesses refused to permit their child to undergo a life-saving blood transfusion. The trial court held that the parents had unlawfully neglected their child and appointed the hospital superintendent as the child's temporary guardian for the purpose of consenting to the procedure. The Supreme Court of New Jersey upheld the decision.
Even when the chance of death is not imminent, the courts have overruled parents — as in the case of one mother who would not allow her daughter to undergo a surgical procedure to correct a malignant growth in her eye that would likely have proven fatal, though probably not for years. The judge ordered that the operation be performed after hearing evidence about its medical necessity. The decision was upheld on appeal, and the girl's parents ultimately consented to the procedure.
As lawyer Joseph Doyle wrote of State v. Perricone in a 1962 article for the Villanova Law Review:
The state has not only a right, but a duty, as parens patriae, to care for those citizens who cannot care for themselves. This includes not only orphans, but also those who, while under the supervision of others, do not receive the minimum standards of care set by the state.
That the state has a duty to intervene on behalf of vulnerable citizens is relatively uncontroversial. The real question, as Chris Christie's response revealed, is where the rights and duties of the state end and those of parents begin.
TRUST THE EXPERTS?
The one factor courts have consistently relied on in issuing rulings on medical treatment for children is the opinion of experts. As Moschella notes:
Typically courts have only intervened in medical decision-making when there is very clear consensus on the part of doctors that this is necessary treatment and evidence is overwhelming that failure to perform the procedure will result in death or lasting bodily harm. The bar is pretty high.
Of course, those of us on the right have historically been reluctant to trust experts who claim to have resolved ongoing scientific debates. The lobotomies of children who were mentally ill or disabled during the first half of the 20th century — often with their parents' approval — suggest not only the ways in which the medical consensus can shift rapidly (and without much evidence), but how parents can make disastrous decisions about their children's health care with the guidance of medical experts.
But that doesn't mean the experts always get it wrong. Female genital mutilation — a practice imposed on young girls by certain African and Middle Eastern cultures — is classified by the World Health Organization as a human-rights violation. It is also illegal in most U.S. states. Though the procedure is widely prohibited due to the long-term pain and suffering it causes women, it continues to be performed underground and has been the subject of cases terminating parents' rights. In some instances, an over-concern about cultural sensitivity to religious minorities has made it harder to prosecute those involved. Still, the medical consensus on the subject has never been in doubt.
By contrast, what Walter Olson of the Cato Institute calls the "complicated cacophony" of expert voices on the subject of gender-transitioning procedures for minors is part of the problem. As Olson observes, you hear from medical experts who claim that such procedures are nothing short of abusive. But you also hear from experts who say that children who are not allowed to medically transition are at risk of suicide. Similarly, you hear from people who are glad they underwent a medical transition, but you also hear from detransitioners who are horrified that these procedures were performed on them, especially as minors.
When the medical advice is conflicting, the courts "tend to side with the individual right," says James Dwyer, a professor of law at William & Mary. But this is hardly a guarantee. States are gradually becoming more divided in their approaches to gender transitions for those under 18 — moving toward claiming either that performing gender-transitioning procedures is child abuse or that not performing such procedures constitutes abuse. In states of the latter type, parents can find themselves in danger of losing custody of their child if they refuse to allow the child to transition.
So far, such cases have largely been restricted to situations in which divorced parents are fighting over the proper approach to take regarding their child's gender confusion — a scenario that pits one parent's rights against the other's and asks the courts to intervene. Or they involve cases in which someone has applied to be a foster or adoptive parent and the state has determined that the prospective parent is unfit for failing to support "gender-affirming" care.
Suits have been filed to overturn these laws. The Alliance Defending Freedom (ADF) is currently petitioning a court on behalf of Jessica Bates, an Oregon woman who wants to adopt children out of foster care but is being prevented from doing so because she refuses to support gender transitions for minors. Her lawyers say this violates her religious freedom. "Jessica wants to open her home to children in need right now," says ADF legal counsel Johannes Widmalm-Delphonse, "but Oregon officials are placing a dangerous ideological agenda above kids' best interests." His client, he adds,
is a loving mother who feels called to adopt siblings from foster care. Oregon is categorically excluding her merely because she shares a view held by millions of Americans: that boys and girls are biologically different. Jessica believes children should cherish that difference, not reject it.
Ultimately, as noted above, courts have a strong tendency to defer to parents unless doctors agree that the procedure is medically necessary. This means the push to end gender-transition procedures for minors, either on the basis of religious liberty or parental rights, will fail if the medical consensus falls the other way. So while conservatives have been reluctant to trust experts, those who oppose performing gender transitions on minors will need to work harder to influence medical professionals if they hope to succeed.
Groups like Do No Harm, a watchdog organization for medical professionals that opposes the insertion of identity politics into medical research and practice, are having some impact on the issue. Kristina Rasmussen, the group's executive director, tells me that "people are noticing the low quality or missing evidence" surrounding gender-transition procedures. It's clear, she says, that "the activists took over standard setting."
Indeed, many of the practices surrounding such procedures are completely out of line with those of the medical profession more generally. These include the notion that children can self-diagnose, and that when children threaten suicide, parents should give in to their demands. "You never help someone ideate suicide," says Rasmussen.
For her part, Moschella believes that people who argue that parents' rights include giving their children access to gender-affirming treatments "are making a category mistake." "The right," she insists, "has always been a right to choose among legally available treatments."
Of course, those treatments are only legally available because of what doctors say. We can always change those laws, but again, doing so will ultimately require changing the ways that medical experts are thinking about these procedures.
Here, Moschella seems sanguine. She points to a shift in Europe, where several countries have become more conservative about medical transitions for minors, as well an increasing number of medical professionals in the United States speaking out against them.
Depending on medical consensus to determine how children should be treated worked for blood transfusions and female genital mutilation. It eventually worked for lobotomies. And with any luck, it will stop the spread of gender-altering procedures.
STRANGE BEDFELLOWS
The field of child welfare, however, is still rife with questions about what constitutes child abuse. And the headlines often highlight cases in which authorities seem to have misused their power.
Consider the Netflix series Take Care of Maya, which chronicles the story of a girl with a mysterious illness whose parents chose (with their doctor) an experimental treatment plan that involved trips to Mexico. When Maya was admitted to an emergency room in a U.S. hospital, the doctors there became convinced that her mother had made up Maya's illness and was harming her daughter with the treatment. The hospital called child protective services, and Maya was taken into state custody. After being separated from her daughter for months, Maya's mother committed suicide.
Even this case raises questions, though — the most obvious being how to classify treatments that are banned in the United States according to Moschella's categories. Laws prohibiting female genital mutilation (including those favored by conservatives) often forbid parents from taking children out of the country to get the procedure done. If parents' rights should only include access to medical procedures that are legal here, then why should Maya's parents' rights be protected?
Advocates like Diane Redleaf, a lawyer and author of They Took the Kids Last Night, argues that cases in which children are removed from parents who have done nothing wrong are becoming more common. This is particularly the case, she says, with the new field of medicine specializing in child abuse.
As Redleaf tells it, hospitals now employ physicians who are trained to hold hammers and see nails everywhere. She cites a number of her clients who were railroaded the way Maya's family was — including Ben and Lynn, middle-class parents who noticed that their infant son's leg was swollen and took him to the hospital to have it examined. When a doctor discovered that the boy had a fractured femur, the hospital called the child-abuse hotline. The doctor, who was training to become a specialist in child abuse, determined that the injury was the result of maltreatment by the parents.
Ben and Lynn had no history of abuse. Aside from the fractured femur, the baby and their other children all appeared healthy. The couple put forth plenty of witnesses who attested to their character. Lynn herself is a social worker. But the fact that Ben and Lynn couldn't explain how their son's fracture occurred prompted officials to remove the couple's three children from their custody while the state investigated the matter.
Redleaf is part of a growing parental-rights movement in the world of child welfare whose members argue that it's time to scale back investigations of child-maltreatment accusations as well as removals to foster care. In addition to screening out many reports of abuse or neglect, they want to ensure that parents are granted and informed of a kind of "Miranda right" that allows them to deny entry to child-protective-service workers without a warrant. These advocates also favor interviewing children in front of parents and eliminating timelines for terminating parental rights.
Such pushes have largely come from the left, with the progressive effort to defund the police bleeding into calls for abolishing the child-welfare system. This side of the movement is being led by folks like Alan Dettlaff of the University of Houston and Dorothy Roberts of the University of Pennsylvania, who argue that the system is inalterably plagued by systemic racial bias and that continuing to engage it will only make problems worse. Any child maltreatment that does occur, they believe, is the result of poverty, and therefore it must be remedied through community support and wealth redistribution.
But with the call for parents' rights gaining momentum in recent years, Dettlaff and Roberts are far from alone. Allies in this fight include Lenore Skenazy, co-founder of the free-range parenting organization Let Grow. Skenazy and others have argued that the over-surveillance and investigation of parents for claims of child abuse and neglect are keeping more parents from giving their children the kind of independence they need for a healthy childhood.
Meanwhile, the Parental Rights Foundation is leading the charge from the right. Its mission statement, in which it pledges to "defend, support, and advance the right of parents to direct the upbringing, education, and care of their minor children," emphasizes traditional conservative themes of opportunity, liberty, prosperity, and protecting the family from government intrusion. Yet the foundation has also taken to arguing that neglect is really just poverty by another name, and that states are removing children from their parents' custody simply because of material want.
If blaming familial problems on poverty and claiming that government financial support will fix the problem doesn't sound like a conservative position, that's because the Parental Rights Foundation has adopted many of the positions of its allies on the left. The organization now argues not only that poverty drives child maltreatment, but that one important reason to curtail child-welfare investigations is the racial disparity within the system. According to the organization's website: "Child abuse is a problem that can occur in any ethnic or economic demographic." But "African-American children [are] subjected to child welfare investigations at a rate 1.5 times their proportion in the general population."
So why is an organization whose leadership is primarily composed of Christian conservatives using progressive arguments about poverty and racial disparities to make its case?
Parents' rights is an issue that has united religious conservatives, radical leftists, and libertarians alike. Typically, such alliances are necessary for changing the laws in a democratic republic as broad and diverse as the United States. And though the right's distrust of government is not quite the same as the left's insistence that the system is broken by inequality, these claims certainly rhyme.
But before jumping on board with charges of systemic bias, conservatives might want to reconsider their bedfellows — as well as the arguments that those bedfellows are suggesting on their behalf.
There are plenty of contradictions on the left when it comes to parents' rights. Most obvious is the question of how a system can be hopelessly racked with bias and corruption but also trusted to decide whether a parent is sufficiently supportive of a child's gender identity. This is a little like the folks who want to defund the police but also want to create new laws banning cigarettes and controlling the size of sugary drinks. Do you want more government intrusion or less? It might help to pick a lane.
Or take the idea that we should respect the rights of parents when it comes to allegations of child maltreatment, but also that when children are taken into foster care temporarily, a state can decide to offer them abortions or hormones or even surgeries without a parent's permission. Can you imagine saying you respect the rights of parents after handing them back a child who has had her breasts removed?
Adopting the left's arguments appears to have caused some elements of the right to put on blinders in the world of child welfare. Though it's true that racial minorities confront child maltreatment at disproportionately high rates relative to their share of the population, as the Parental Rights Foundation notes in the sentence following its complaint about these disparities, "African-American children make up about 14% of the total U.S. child population, but 21% of the maltreatment population." Black children are also three times as likely to die from maltreatment as their white peers. It thus appears that child protective services is responding to cases where children are in fact in need of protection.
And while handing parents food stamps or housing vouchers can be cheaper than taking children into foster care, poverty is far from the sole explanation for what's going wrong in these homes.
When it comes to child maltreatment, neglect is responsible for more child fatalities than abuse. And according to Emily Putnam-Hornstein, a professor at the University of North Carolina at Chapel Hill, child-welfare workers investigating claims of neglect are usually "dealing with situations of parental substance abuse or domestic violence or mental-health problems." Indeed, a recent study of almost 300 case files in California found that "[n]early all investigations of physical neglect (99%) included concerns related to substance use, domestic violence, mental illness, co-reported abuse or an additional neglect allegation (i.e., abandonment)." Federal estimates, meanwhile, suggest that substance abuse is at least in part responsible for over 80% of child-neglect cases nationwide.
But this has not stopped right-leaning parental-rights advocates from claiming that poverty is the driver of child maltreatment and that investigations into neglect are by and large unnecessary.
RESTORING LIMITS
There will always be a need to balance parents' rights with the duties of the state to protect children. But for the past couple of decades, agencies have been increasingly siding with parents. And the results are concerning: Maltreatment fatalities have risen every year for the past six years — a 13% rise overall. And while the numbers are small, they no doubt signal that many children out there are suffering needlessly. It's time for conservatives to start paying more attention to the facts on the ground.
Moschella claims it's "better to have a deferential standard" in child-welfare cases because there is "incredible upheaval [in children's lives] when they are even being taken temporarily from their parents." She says that "when you empower states to intrude with non-deferential standards, structurally you will do more harm."
There's no doubt that removal into foster care is traumatic for children. But so is the severity of the abuse or the level of neglect that a child needs to experience before that removal.
In other contexts, conservatives recognize the deep harms to children caused by broken families, mental illness, and substance abuse — non-material factors that cannot be remedied with a government check. They also seem to be able to keep two ideas in their heads at the same time — yes, individuals have rights, but the police are an important and necessary part of keeping the most vulnerable people in society safe. When it comes to parents' rights, however, conservatives seem to have lost a sense of boundaries.
Perhaps nowhere is this more obvious than in a recently proposed constitutional amendment on the subject. The amendment begins with the idea that the "liberty of parents to direct the upbringing, education, and care of their children is a fundamental right"; an earlier version ended by stating that the article "shall not be construed to apply to a parental action or decision that would end life." If you have to clarify that your understanding of parents' rights means that parents can't kill their children, maybe you've lost the plot.
The standard of how we treat our children has evolved significantly since the founding of this country. We don't want children to be beaten for disobedience. We want them to receive an education. We don't want them operating heavy machinery at a young age. And so there has to be some flexibility in the way we think about parents' rights.
At the same time, defining child abuse is always going to involve the views of some outside experts — including medical practitioners. Conservatives will have to figure out how to incorporate those views into their own or change them rather than engaging in a wholesale rejection of them.
In a recent essay, Elizabeth Kirk of Catholic University notes that our "view of the maturity of minors ebbs and flows, as does the scope of parental authority." She suggests that there has been a "confused application of parental rights in discrete contexts," and that the "current jurisprudence of parental rights — from their origins to applications — is weak, chaotic, and inconsistent."
But Kirk also notes that certain realities are constant: "that minor children are immature and vulnerable, that they require care and education, that in most instances some adult must decide for them or act on their behalf, and that parents enjoy a unique relationship with and responsibility for their children." Finally, she notes that "[p]arental rights arise out of obligations ordered toward the good of the child, but in individual circumstances parents fall short." Conservatives, no matter how much they distrust government, cannot turn a blind eye to those circumstances.
