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Justices throw out lower-court ruling allowing state court clerk to be sued in parental notification abortion case

In a short procedural order, the Supreme Court on Monday morning threw out a lower-court ruling allowing a state court clerk to be sued for telling a pregnant teenager that her parents must be notified of their child’s desire to seek an abortion without their consent. The justices sent the case back to the lower court with instructions to dismiss the case as moot – that is, no longer a live dispute. The unsigned order, which came as part of a list of orders released from the justices’ private conference last week, drew a sharp dissent from Justice Ketanji Brown Jackson, who complained that the case (and, she suggested, other recent cases) did not meet the stringent criteria normally required for such relief.

The case stemmed from a lawsuit alleging that the clerk, Michelle Chapman, violated the rights of a pregnant 17-year-old, known as Jane Doe. Under Missouri law, Doe was required to obtain written permission from at least one parent before obtaining an abortion. But the law also allows minors to bypass that requirement by going to court, which can grant permission after holding a hearing. When Doe went to the courthouse in 2018 to seek a judicial bypass, Chapman interpreted Missouri laws to require her to notify Doe’s parents of the hearing. Doe instead opted to go to Illinois, where she obtained a judicial bypass and, later, an abortion.

Both a federal district court in Missouri and the U.S. Court of Appeals for the 8th Circuit rejected Chapman’s claim that she was immune from suit. Represented by lawyers for the state, Chapman came to the Supreme Court last year, asking the justices to take up her case and weigh in on the question of immunity – including whether, in the wake of the court’s decision in Dobbs v. Jackson Women’s Health Organization last year, the court should send the case back to the lower courts for them to reconsider whether Doe actually has a right to a judicial-bypass hearing without notifying her parents.

Doe’s lawyers urged the justices to deny the petition. They argued that the case is moot – that is, no longer a live dispute – because Chapman and Doe had later agreed to dismiss the underlying district court case. Because Doe’s lawsuit against Chapman has ended, they reasoned, it does not matter whether Chapman is immune from that lawsuit.

Chapman agreed that the case is moot and that the 8th Circuit’s decision on immunity should be invalidated, but she disagreed about the rationale for doing so. In her view, the court’s decision in Dobbs, overturning the landmark decisions establishing a constitutional right to an abortion, rendered the case moot, by making clear that Chapman did not violate Doe’s rights.

The justices did not indicate the rationale for their ruling, instead noting only in a brief order that they had vacated the 8th Circuit’s decision and sent the case back to that court for it to dismiss the case as moot – a remedy known as Munsingwear vacatur.  

In her dissent, Jackson emphasized that Munsingwear vacatur is supposed to be available only in “extraordinary” or “exceptional” cases, to avoid the unfairness that would otherwise occur when a losing party cannot appeal a decision that has become moot. But this case, Jackson stressed, became moot because Chapman agreed to have it dismissed, and so it is not unfair for her to lose her right to appeal the 8th Circuit’s decision.

Although the court’s “core principles warrant an exceedingly cautious approach to Munsingwear vacatur requests,” Jackson wrote, “our recent practices reflect a sharp uptick in the number of vacaturs awarded.” And she expressed concern “that contemporary practice related to so-called ‘Munsingwear vacaturs’ has drifted away from the doctrine’s foundational moorings.”  

The justices did not add any new cases to their merits docket for the 2023-24 term, but they did call for the views of the Biden administration in one case: Ohio v. CSX Transportation, a challenge to an Ohio Supreme Court decision holding that federal law trumps a state law that bars a stopped train from blocking a public road for more than five minutes. There is no deadline for the Biden administration to file its brief.

This article is also published at Howe on the Court.

Recommended Citation: Amy Howe, Justices throw out lower-court ruling allowing state court clerk to be sued in parental notification abortion case, SCOTUSblog (Mar. 20, 2023, 1:30 PM),