A Modern-Day Pierce Parental Rights Case?

A case percolating through the Florida state court system has the potential to kill two birds with one stone: upend the subversion of parental rights when it comes to minors wanting abortions while strongly buttressing the case for parental rights. Doe v. Uthmeier could be as landmark a decision for parental rights today as Pierce v. Society of Sisters was a century ago, in which the Supreme Court struck down an Oregon law requiring children to attend public school. 

The case involves a Florida minor seeking her second judicial bypass to obtain an abortion without parental consent or notification. The judge questioned her maturity, given that she had sought a similar bypass about a year ago, and it was unclear in the beginning how the case would proceed. 

Judicial bypasses were a U.S. Supreme Court-imposed infrastructure. In the wake of Roe v. Wade, Missouri had made a minor’s obtaining of an abortion contingent upon parental consent, mirroring the general public policy position that parental consent is required for medical interventions involving underage persons. Planned Parenthood v. Danforth struck down the Missouri law because, through the lens of Roe, which emphasized the centrality of abortion access to women’s rights, categorical parental prohibition constituted an abridgement of those rights. The Court’s logic was that there were unemancipated minors whose maturity or best interests could justify an abortion that a parent might veto. Judicial bypass enabled a judge to sign off on what a child’s parents wouldn’t.

Over time, these bypass hearings often took place in camera—that is, in private between the judge and minor—allegedly because “abusive” parents might endanger a child seeking an abortion behind their backs. Lack of consent eventually morphed in some states into lack of knowledge: Parental consent fell first, then parental notification of a minor’s abortion.

As the Florida appeals court deliberated next steps in Doe, the state attorney general eventually intervened. The attorney general’s argument was that the whole judicial bypass structure should be declared unconstitutional as an abridgement of parental due process rights.

As he framed it, Pierce and similar cases had established a vigorous substantial due process right of parents to direct the education and upbringing of their children, a right so basic that its abridgement could only be justified under a strict scrutiny standard. In other words, the state would have to demonstrate a compelling interest and show that no less restrictive alternative existed to achieve its goal.

When judicial bypass legislation was enacted, out of obedience to Danforth, there was a countervailing claim: the woman’s “right to privacy.” But when the Dobbs decision overturned Roe, that countervailing claim disappeared, while still leaving in place the vestigial legal mechanism to adjudicate it. Without Roe, there is simply no reason for judicial bypass. Not only is bypass redundant, it in fact bludgeons an established fundamental constitutional right: the right of parents to raise their minor children. The Florida attorney general therefore argued to strike down the judicial bypass mechanism. Doe is heading for Florida’s Supreme Court to examine just that.

Exclusion of parents from a minor’s abortion decision has always been an area from which pro-abortionists sought to disengage, because justifying usurpation of parental rights is never easily sold. With the demise of Roe and the burgeoning parents’ rights movement (particularly post-Covid), making that case seems even harder. It is therefore surprising that, with Roe out of the way, there has not been greater pressure to abolish the minors-can-get-abortions-without-parental-consent-or-knowledge apparatus. The Florida case refocuses attention on that question, not as a matter of political discretion but because of its threat to a real right: parental control of a child’s upbringing.

Striking down judicial bypass in the name of “parental rights” would be a full-throated reaffirmation of Pierce v. Society of Sisters, which protected parental rights in educational choice. Coupled with the soon-to-be-handed-down decision in Mahmoud v. Taylor—likely to affirm a parent’s right to keep preschoolers free from exposure to gender ideology—a case like this would protect parental rights in the other locus they are typically threatened: medical interventions and “healthcare.”

Underlying this all, of course, are assumptions about the state’s role in shaping a child’s values attitudes. The nativists who drove Oregon’s ban on parochial schools overturned in Pierce deemed a Catholic educational environment “anti-American.” Those who promote judicial bypass or deny exemption from classes teaching LGBT ideology likewise deem traditional parental upbringings “anti-American,” at least in terms of new “rights” on offer by the state if not the home.  

If Florida’s Supreme Court throws out the state’s judicial bypass system for minors seeking abortions, the impact will be limited: I doubt the plaintiff (or the usual litigating suspects for such plaintiffs) will want to risk bringing an appeal to the federal courts. I also doubt the federal courts would necessarily want to get involved. Where things could truly get interesting is if parents in those states now diligently protecting abortion by state constitutional amendment bring suit on grounds that the very closed nature of judicial bypass proceedings precludes them from knowing if their rights are being abridged. Even state constitutional amendments must yield to federal rights.