In 1973, the Supreme Court ruled in Roe v. Wade that a constitutional right to privacy exists, based on decades of precedent going back to 1891. The Court specifically references the right to privacy as having roots in the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution, as well as in the penumbras of the Bill of Rights. The Court further enumerated that privacy rights were upheld in the areas of contraception, family relationships, child-rearing and education. If the draft Supreme Court opinion in Dobbs v. Jackson, No. 19-1392 (2022), recently leaked, is issued as a final decision, the privacy rights in these enumerated areas will suffer.
The Fourteenth Amendment Due Process Clause, which provides the basis for the right to privacy for parents, is targeted in the leaked draft. Justice Alito correctly states that the Fourteenth Amendment not only protects the expressed rights in the first eight amendments but also those previously held by the Court to be fundamental. What he fails to acknowledge is best said by Justice Stewart in the concurring opinion to Roe, that liberty “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints…and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” See also, Poe v. Ulman, 367 U.S. 497 (1961). Justice Stewart goes on to quote Justice Frankfurter, stating, “Great concepts like…’liberty’…were purposely left to gather meaning from experience.” National Mutual Ins. Co. v. Tidewater Transfer Co.,337 U.S. 582,646 (1949).
Liberty is the foundation from which the fundamental rights of parenting bloom. The rights of parents to “marry, establish a home, and bring up children” were deemed to be fundamental rights protected by the Fourteenth Amendment’s Due Process Clause in Meyer v. Nebraska, 262 U.S. 390 (1923), in which the State of Nebraska sought to forbid the teaching of the German language in schools. The Court held that this violated the liberty held by parents to educate their children. Likewise, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the liberty of parents regarding the education of their children was also confirmed when the State of Oregon sought to require by statute that all children attend public schools. In each of these cases, it was upheld that the State overreached in its restrictions of liberty, which is the core of fundamental rights of parenting.
A more modern example is found in Troxel v. Granville, 520 U.S. 57 (2000), wherein the Court struck down an unconstitutional Washington statute that expanded nonparental access to children over a parent’s objections. The Court again applied the Fourteenth Amendment Due Process Clause to protect against government interference with certain fundamental rights and liberty interests, specifically, “the interest of parents in the care, custody and control of their children.” The Court confirmed that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id at 69. This ruling gives great deference to the fundamental right of parents to raise their children without interference from the State pursuant to the Due Process Clause of the Fourteenth Amendment. With the Due Process Clause under attack, the parental rights set forth in Troxel could be weakened. This can be viewed as a reckless and hazardous effect, allowing for the restriction of all fundamental rights based on privacy and Due Process and a strengthening of government interference and control.
The potential overturning of Roe v. Wade will have a much wider impact than the rights of women to choose to terminate a pregnancy. There are long-standing precedents of fundamental parental rights that are cited both in and to Roe that could face challenges under a potential new restrictive precedent as set forth in the Dobbs draft. If the draft is to be finalized, it will weaken all fundamental rights currently protected by the Due Process Clause of the Fourteenth Amendment. More specifically, the long-standing fundamental rights of parents to raise their children without undue interference and infringement from the State.
Leslie Silva is a Partner at Tully Rinckey PLLC’s Albany office where she practices family and matrimonial law and education law. Leslie has represented individuals in all areas of family and matrimonial law, with a particular experience in high-net-worth matrimonial litigation. She can be reached at info@tullylegal.com or at (888)-529-4543.
