The New Law and Politics of Parental Rights

Abstract

Over the past few years, legislators have passed a broad range of laws, on everything from racial justice to gender identity, that they characterize as supporting parental rights. The most remarkable feature of these new laws is how little they do to advance either the autonomy of parents or the wellbeing of children. By examining these laws and the politics of parental rights associated with them, we can learn a great deal about a crucial but understudied tactic that we label “erosion by misdirection.” Erosion by misdirection differs from other well-understood movement tactics, such as incrementalism or preservation by transformation. Erosion by misdirection does not simply shore up existing status hierarchies, as is the case with preservation by transformation: instead, it involves an indirect attack on a right, one that seeks to undermine existing protections and stymie future progress, all while drawing focus away from the liberty in question. And erosion by misdirection is not just any form of incrementalism. The Article explores how recent parental rights laws, and the politicians and advocates behind them, attack the rights of minors as a steppingstone toward both undermining progressive cultural change and dismantling existing protections that apply more broadly. In this way, erosion by misdirection seeks not to maintain the status quo but to reverse social change, and to do so in ways that conceal a movement or politician’s underlying beliefs and objectives.

Other scholars have done critical work showing how particular, recent parental rights laws diminish existing rights. This Article makes three key contributions to the legal literature. First, we break new ground by identifying erosion by misdirection, and we explore a key contemporary example of it in the politics of parental rights. We excavate the history of this particular version of erosion by misdirection, developing case studies on struggles around racial integration, LGBTQ+ status, and abortion, to illuminate the continuities of parental rights strategies and rhetoric across times. Second, in drawing on the lessons of the past, we offer principles for distinguishing the rhetoric from reality of parental rights today—and for identifying erosion by misdirection in action. Finally, we offer guidance on what can be done to counter the new politics of parental rights. Understanding erosion by misdirection is a necessary first step for any civil rights movement seeking to counter these new laws—or others that use misdirection to hollow out critical constitutional protections.

Keywords: legal history, abortion, minors, gender identity, schools, parent/child/state, politics