Retrenchment by Diversion: the New Politics of Parental Rights

Authors

Mary Ziegler, UC Davis School of LawFollow
Maxine Eichner, University of North Carolina School of LawFollow
Naomi Cahn, University of Virginia School of LawFollow

Abstract

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article provides a new framework for understanding parental rights, one that differentiates an increasingly salient political practice from a longstanding constitutional law principle. We show that many contemporary efforts claimed to advance parental rights are part of a crucial but understudied social-movement tactic that we label “retrenchment by diversion.” This strategy involves retrenchment in that its goals are to stymie the future progress of equality-focused movements as well as to roll back their existing gains. To sidestep controversy, though, this strategy diverts attention from its rights-reversing motivations by supplying a more politically palatable rationale for its actions— here, the long and valued constitutional tradition of parental rights. While recent parental-rights laws are aimed at minors, we argue the ultimate goal of the retrenchment by diversion strategy in these laws is to threaten equality-focused rights for adults, as well.

This Article makes four key contributions to legal literature. First, it uncovers the relationship between the current movement for parental-rights laws and past attempts to roll back rights reforms based on the rhetoric of parental rights. Second, it elucidates retrenchment by diversion as a movement strategy and explains how parental-rights rhetoric effectuates this strategy. In doing so, we identify the ways parental-rights rhetoric effectively obscures the problematic goals that motivate these laws, the harms such laws pose to children and members of disadvantaged groups, and the damage they do to democracy and good government. Third, we offer guidance on how to distinguish legitimate claims of parental rights from uses of parental-rights rhetoric merely to accomplish the strategy of retrenchment by diversion. Fourth and finally, we consider what can be done to counter the new and damaging politics of parental rights.

Recommended Citation

Mary Ziegler, Maxine Eichner & Naomi Cahn, Retrenchment by Diversion: the New Politics of Parental Rights, 123 Mich. L. Rev. 669 (2025).
Available at: https://repository.law.umich.edu/mlr/vol123/iss4/3