HIGHLIGHTS
- The Supreme Court has long recognized parents’ fundamental constitutional right to direct their children’s upbringing, a right rooted in centuries of common law and over 100 years of constitutional precedent.
- Overruling Roe v. Wade means no federal abortion right exists to compromise this parental right. With Dobbs, the constitutional obstruction that Roe placed on parental authority has been removed.
- This parental right takes precedence over state constitutional protections for abortion and laws giving judges broad authority to bypass parents. Under the Supremacy Clause, state constitutions must conform to the Fourteenth Amendment, which protects parents’ rights.
For decades, Roe v. Wade did more than create a federal “right” to abortion. It systematically dismantled one of the most deeply rooted rights in American law: a parent’s right to be involved in their child’s medical decisions. Now, with Roe gone, a new legal report from Advancing American Freedom, co-authored by Americans United for Life (AUL) Litigation Counsel Carolyn McDonnell, shows the important history of parental rights in Law and argues that parental rights are not only restored, but legally dominant.
See highlights below, or read the full legal report here.
A Right Rooted in Centuries of Law
The right of parents to direct their children’s care and upbringing is not a modern invention. It predates the Constitution itself. From Thomas Aquinas to John Locke to Sir William Blackstone, whose Commentaries on the Laws of England is the second-most cited work by America’s founders, the principle has been clear: parents, not the state, hold primary authority over their children.
The Supreme Court enshrined this principle in constitutional law as early as 1923 in Meyer v. Nebraska, and reaffirmed it in landmark cases like Pierce v. Society of Sisters (1925), Wisconsin v. Yoder (1972), and Troxel v. Granville (2000). As the Court stated in Troxel, the Due Process Clause of the Fourteenth Amendment “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Just this year, in Mirabelli v. Bonta (2026), the Supreme Court reaffirmed that parents have “the right not to be shut out of participation in decisions regarding their children’s…health.”
This is the highest standard of protection in American law.
What Roe Did to Parental Rights
When the Supreme Court decided Roe v. Wade in 1973, it didn’t just create an abortion right. It began a decades-long project of subordinating parental rights. In Planned Parenthood v. Danforth (1976), Justice Blackmun struck down a parental consent requirement and reduced parents’ constitutional right to mere “parental discretion.” As one NYU Law professor noted, Blackmun “got it exactly backwards even to regard the parental right as something the state gives to parents at all.”
Then came Bellotti v. Baird (1979), which imposed the now-familiar judicial bypass system on every state, requiring courts to authorize abortions for minors without parental knowledge or consent, based on vague standards like “maturity” and “best interests.” Today, 38 of the 39 states with parental involvement laws still include these bypass procedures. Every one of them is a direct product of Roe’s command.
Dobbs Changed Everything
In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court held that Roe was “egregiously wrong on the day it was decided.” With its rightful overturning, went away the constitutional foundation that justified excluding parents from their daughter’s abortion decision.
Under Dobbs, abortion restrictions face only rational basis review. This low bar gives states wide latitude. But parental rights remain a fundamental constitutional right requiring strict scrutiny to override. The legal imbalance that Roe created has been flipped. Courts must now take seriously what the McDonnell and Jipping report argues: parental bypass statutes, born out of Roe’s distorted framework, cannot survive when measured against the Fourteenth Amendment’s robust protection of parental authority.
This is already playing out in the courts. In Doe v. Uthmeier (Florida, 2025), a state appellate court held that the parental bypass statute violated a parent’s constitutional right and certified the question to the Florida Supreme Court.
What States Can Do Now
The report outlines a clear path forward. States can repeal or amend parental bypass statutes that have no constitutional basis now that Roe is gone. They can strengthen existing laws like requiring two-parent rather than one-parent consent, or consent rather than mere notification. And they can invoke the Supremacy Clause to challenge state court rulings that improperly allow state abortion rights to override federal parental rights protections.
Eighteen states have already enacted a Parental Bill of Rights affirming that parental liberty is “a fundamental right” subject to the highest constitutional standard. Fourteen more states have courts that recognize that strict scrutiny applies. The legal and legislative tools are available. To see where your state stands on parental rights, see AUL’s State Spotlight.
The Bottom Line
The Dobbs decision did not just return abortion policy to the states. It restored the constitutional order that Roe inverted. Parents once again hold the primary role in their children’s lives! The law, properly understood, backs them up. AUL will continue to fight for that truth in courts and legislatures across the country.
Source: “Parental Rights and Abortion After Dobbs,” Thomas Jipping & Carolyn McDonnell, Advancing American Freedom (May 2026). Carolyn McDonnell serves as Litigation Counsel at Americans United for Life.
