The Enduring Vitality of Meyer and Pierce Post-Dobbs

Chris Gottlieb*

In overturning the right to abortion, Dobbs v. Jackson Women’s Health has provoked conjecture—fear on the part of some, hope for others—that additional unenumerated rights related to “heart and home” may also topple. Often views on substantive due process align with politics, with those on the left generally viewing rights more expansively, and those on the right tending to be more skeptical. Parental rights, however, offer an opportunity for constitutional agreement across the contemporary political divide. Despite fierce disagreement over the parameters of parental rights, there is broad, underappreciated consensus that the right to raise one’s children is a fundamental right within the meaning of the Fourteenth Amendment. This Article argues that the earliest parental rights cases, Meyer vs. Nebraska and Pierce v. Society of Sisters, are best understood as resting on a political theory that parents’ rights to direct their children’s upbringing are essential to maintaining pluralism and self-governance in the American version of democracy. Thus, these cases have a different logic than the economicrights cases of the Lochner era, and they are not—as has often been suggested—grounded in natural law. Parental rights, the Article explains, are anchored by the twin fundamental-rights analyses emphasized in Dobbs and other recent Supreme Court jurisprudence. These rights are (i) deeply rooted in history and tradition, and (ii) essential to the American scheme of ordered liberty. A comprehensive review of the case law in the lead up to ratification of the Fourteenth Amendment—the period Dobbs identifies as most significant for history-and-tradition analysis—demonstrates that states consistently recognized parental rights. Indeed, there is not a single published decision in the two decades preceding ratification that denies parents have protected rights that can only be overcome by a particularized showing of unfitness or waiver. The Article makes two points regarding the ordered-liberty analysis. First, properly understood, Meyer and Pierce are grounded in a structural account of parental rights that deems them essential to our version of ordered liberty. Second, past failures to respect rights to family integrity in oppressed communities offer additional support for the claim that our scheme of ordered liberty requires that parental rights be recognized as fundamental to democratic citizenship. This latter point responds to a concern of Dobbs‘s critics that history-and-tradition analysis often reifies historical inequities. In the realm of parental rights, recognizing past injustices provides a more robust and equitable understanding of ordered liberty. In this light, both those on the left and those on the right of the political spectrum should be heartened that Meyer and Pierce can be expected to survive and thrive.

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© 2025 Chris Gottlieb. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law and Director of the Family Defense Clinic, New York University School of Law. Thank you to Jim Corsiglia, Marty Guggenheim, Josh Gupta-Kagan, Amy Mulzer, Melissa Murray, Vivek Sankaran, and Laura Savarese for helpful comments on earlier drafts. Thanks also to the organizers and participants at the Notre Dame Law Review’s Symposium “100 Years of Pierce v. Society of Sisters” and to Emily Pawlecki for excellent research assistance.