This Article explores how the rhetoric of parental rights has been deployed to override minors’ access to abortion, gender-affirming care, and education about critical race theory and gender identity. The overruling of Roe v. Wade and controversies over gender-affirming care and “appropriate” material to be taught in schools have highlighted parent/child/state tensions. Long before Dobbs, states imposed restrictions on the abortion rights of minors, even when minors and their parents agreed.

The rhetoric of parental rights, however, has been weaponized to serve particular substantive ends, even though parents have differing rights and interests. Some parents, for example, support their children’s access to gender-affirming care, but rather than provide those services for their children, instead fear that they will be investigated for child abuse. Indeed, this paper suggests that the parent-child-state triad has another participant: political partisanship. The triad thus becomes a triangular pyramid, with partisanship at the top. The rhetoric of parental rights is used as a screen for restricting abortion rights, bans on gender affirming care, prevention of the teaching of critical race theory and even limitations on drag queen shows, so it’s 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 turns to the existing legal framework for such access, while the third surveys pre- and post-Dobbs conflicts that center on protecting parental rights over their children’s rights to reproductive care. The next section explores the reasons for increasing political partisanship in the country as a whole, framing the broader culture wars, and brings 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 section concludes.

Naomi R. Cahn, The Political Language of Parental Rights: Abortion, Gender-Affirming Care, and Critical Race Theory, 53 Seton Hall Law Review 1443 (2023).
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