When Roe v. Wade established abortion as a fundamental constitutional “right,” how the new “right” would interface with other rights was unclear. Over almost 50 years, the Supreme Court imposed its vision on society. One of the areas of conflict among “rights” involved minors. American law traditionally recognized parental rights over the medical care of children; it’s why parents often need to sign multiple waivers for their child to get an aspirin or routine medication at school.  Working on that customary assumption, Missouri passed a law requiring parental consent for a minor to procure an abortion.

The U.S. Supreme Court struck down Missouri’s requirement in a 1976 case, Planned Parenthood v. Danforth. According to the court, a female’s right to abortion was so essential and comprehensive that the traditional assumption of parental consent to a medical procedure was unconstitutional when it came to abortion.  If a parent refused or a child didn’t want to ask, an alternative procedure had to be in place: judicial bypass.

Judicial bypass meant a judge could authorize an abortion a parent wouldn’t (or about which a child did not want to ask) provided the child was “mature” or the abortion in her “best interests.” Abortionists, using scare tactics as they did with “back-alley abortions” to legalize the procedure, insisted minors had to be protected from “abusive” parents, so many such bypass hearings were confidential, excluding the parents.

It wasn’t a long leap from there to some states and state courts denying not just parental consent but even knowledge of abortion. Such ignorance was hardly bliss but rather inherently dangerous, as postoperative complications would befall a minor who would then likely have to rely on ignorant parents for emergency care.

When Roe fell to Dobbs v. Jackson Women’s Health Organization, so did the federal “right” to an abortion without parental consent. But while the concept may have become vestigial, the infrastructure — the judicial bypass system and the laws governing it — remained in place unless legislatures repealed it. Law being conservative in the sense that inertia usually prevails until a problem arises, such procedures remain on the books of many states, including pro-life states such as Florida.

That’s where a case arose in May.  A young woman sought a judicial bypass from a state judge for an abortion. The judge was dubious about the girl’s maturity since she had gotten a similar bypass waiver about a year earlier. Without boring the reader with the case’s procedural twists and turns, it wound up in a Florida appeals court where the state attorney general intervened, arguing that the judicial bypass procedure itself was unconstitutional.

According to the attorney general, the bypass procedure is unconstitutional because it denies a fundamental federal constitutional right: the right of a parent to direct a child’s upbringing. This year marks the centennial of Pierce v. Society of Sisters, a 1925 case that was a clarion call to protect parents’ rights against state interference.  Parental rights are so basic that a “strict scrutiny” standard would have to apply to justify any state attempt to interfere with them: There would have to be an equally serious counterargument and a showing there was no less intrusive way for the state to make its point. But, with the demise of Roe, the serious counter-argument — a federal “right” to abortion — disappeared. All that’s left is the legal structure it imposed whose practical effect is to interfere with parental rights.

Doe v. Uthmeier is likely headed for Florida’s Supreme Court. If that court accepts the attorney general’s argument, there’ll be a valuable precedent to strike down these constructs that have been in place interfering with parental rights for 49 years. As Judge John MacIver observed in his concurring opinion, the particularly invidious nature of the Florida bypass procedure was that, because the hearings were confidential, parents wouldn’t even know their rights were being attacked.

Abortionists have profited from rhetorical smoke and general disinterest in details when it comes to abortion policy: “Codifying Roe” is often sold simply as “uncontroversial” early abortion.  It’s when pro-lifers make people focus on issues — e.g., whether parents have a right to consent to their minor child’s abortion or even know that she is having one — that, suddenly, the “overwhelming support” for abortion collapses like the smokescreen it is. And the pro-abortion argument is particularly vulnerable when it comes to the question of minors. You can’t give a kid an aspirin without parental consent, but you can an abortion?

Since Dobbs, the question of restoring parental rights in this area has been an open door through which, amazingly, many states have not stepped.  If we don’t have legislatures dismantling the judicial bypass detour, we can hope the courts will in the name of parental rights.