Sun, 28 May 2023

WASHINGTON (CN) - Justice Ketanji Brown Jackson balked Monday at the last chapter of a lawsuit against a county clerk in Missouri who insisted that the parents of a 17-year-old had to be notified about her plans to get an abortion.

Represented by the ACLU, the teen is identified in court papers by the pseudonym Jane Doe. Missouri law bars minors under the age of 18 from undergoing an abortion without the written consent from a parent or guardian, but it is possible for minor to bypass that requirement with the aid of a court order.

Doe sought just that when she sought to terminate her pregnancy in December 2018. Because the Randolph County clerk's office interfered in her efforts to even apply for the judicial bypass, however, she ultimately underwent the procedure out of state the following March, however.

The complaint describes three unsuccessful visits by Doe to the courthouse and notes that the clerk, Michelle Chapman, called Doe personally after the office turned her away the second time, stating that Doe would be given an application form but that "our Judge requires that the parents will be notified of the hearing on this."

Chapman asserted qualified immunity, but a federal judge turned the clerk down, and the Eighth Circuit affirmed 2-1, holding that the 14th Amendment clearly established Doe's right to judicial bypass without parental notification.

Doe's lawsuit went off the tracks last year, however, when the Supreme Court overturned Roe v. Wade. The court granted Chapman vacatur Monday under U.S. v. Munsingwear, leading Justice Jackson to groan in dissent that the practice for such vacaturs "has drifted away from the doctrine's foundational moorings."

The Supreme Court decided Munsingwear in 1950, holding that, when intervening mootness prevents appellate review of a decision, the decision below should usually be vacated. But Jackson notes that Chapman only agreed to a joint stipulation of dismissal on the condition that Doe did not request to Munsingwear vacatur.

"Chapman contributed to the mootness of this case insofar as she stipulated to its dismissal," the justice wrote.

The dissent that the court has mechanisms for "addressing intervening developments in the law," and that such options were available to the clerk, "including relying on her original request that the Court grant a petition for certiorari, vacate the Eighth Circuit's judgment, and remand in light of Dobbs."

"But mere disagreement with the decision that one seeks to have vacated cannot suffice to warrant equitable relief under Munsingwear," Jackson wrote. "In my view, it is crucial that we hold the line and limit the availability of Munsingwear vacatur to truly exceptional cases." 

She warned that doing otherwise "risks considerable damage" to the process of appellate review, and could "incentivize gamesmanship, as it, for example, enables parties to disclaim potential mootness before the lower court, and, if unsuccessful on the merits at that stage, argue mootness on appeal to eliminate the adverse decision through vacatur."

"Whatever the parties might have seen fit to agree to, we have long recognized that the equities generally do not favor Munsingwear vacatur when the party requesting such relief played a role in rendering the case moot," Jackson wrote.

The Missouri Attorney General's Office did not immediately respond to a request for comment Monday, nor did the ACLU.

Doe's attorneys argued in a response brief that "the issue in this case is whether due process allows a clerk to graft a new notice requirement onto a statute that does not require notice, a distinct issue from that decided by Dobbs," a reference to the Dobbs v. Jackson Women's Health Organization.

Missouri became the first state after Dobbs was issued in June 2022 to outlaw abortion, except in medical emergencies.

Source: Courthouse News Service

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