Abortion Notification Rules for Minors Dispute Arrives at Supreme Court

Missouri court clerk says she didn't violate the girl's rights by refusing to accept her parental bypass petition

Abortion Notification Rules for Minors Dispute Arrives at Supreme Court
Missouri Attorney General Eric Schmitt speaks during a news conference in St. Louis, Mo., on Aug. 6, 2020. (Jeff Roberson/AP Photo)
Matthew Vadum

A county court clerk in Missouri is asking the Supreme Court to throw out an appeals court decision holding that a minor has a “clearly established” right to skip parental notification before asking a court to rule on whether she can have an abortion.

According to the Guttmacher Institute, a pro-abortion rights think tank, the laws of 35 states prescribe a judicial bypass procedure in which a minor may obtain permission from a court for an abortion, but the rules from state to state vary widely.

The case is one of many now surfacing after the Supreme Court ruled this summer that there is no constitutional right to abortion.

The Supreme Court overturned the 49-year-old Roe v. Wade ruling and returned the regulation of abortion to the states in its June 24 ruling in Dobbs v. Jackson Women’s Health Organization. In the Dobbs decision, the high court also reversed a related 1992 precedent, Planned Parenthood of Southeastern Pennsylvania v. Casey, which affirmed Roe and declared that a woman had a right to obtain an abortion before fetal viability without undue interference from the state.

The case is Chapman v. Doe, court file 22-312.

The petitioner, Michelle Chapman, is appealing in her official capacity as the Circuit Clerk for Randolph County, Missouri. The respondent, identified as Jane Doe, is a minor.

Chapman asked the court to extend the deadline for filing the petition to Sept. 30 and on Aug. 18, Justice Brett Kavanaugh agreed to do so. The petition was filed on Sept. 30.

Doe sought dispensation from a Missouri court so she could have an abortion without parental consent. She didn't receive authorization from that court but then received the abortion in Illinois after a state court there approved it. Doe sued the Missouri court clerk.

According to the petition (pdf) Chapman filed with the Supreme Court, Doe visited her local courthouse but was told the clerk’s office was unfamiliar with Missouri’s bypass procedure. She went a second time and was told she couldn't file a petition without notifying a parent.

Chapman later followed up with Doe, telling her that “she had the paperwork for [Doe] to fill out but that ‘our Judge requires that the parents will be notified of the hearing on this.’” On a third visit, Doe tried again to file for a bypass but ultimately “declined to do so because the clerk’s office informed her that filing the petition would require notifying a parent.”

Doe received an abortion in Illinois after a court there authorized it, absent parental notification.

Chapman testified that, with new filings, “I will always get the advice of my judge that handles this type of case, what he’s going to require for it, how he wants us to handle [it] and then I will work from there.” She said she consulted with James M. Cooksey, a juvenile court judge “who told her that he would require Doe to send notice to her parents if she filed a bypass application,” and that he would refuse to hear the case without parental notification.

But when asked, Cooksey testified he didn't remember what he had said or if he had said anything at all.

Doe filed a civil rights lawsuit in federal district court for damages, claiming that Chapman violated her 14th Amendment rights. Chapman took the position that she was immune to suit because she followed a Missouri statute and the judge’s directions. Chapman also argued that Doe’s right to a bypass hearing wasn't clearly established and that she therefore couldn't have violated Doe’s rights.

The district court ruled against Chapman, finding the statute didn't require prehearing notification of the minor’s parents to obtain judicial authorization for an abortion.

The U.S. Court of Appeals for the 8th Circuit determined Doe’s claim must be allowed to proceed, finding that the right to bypass the parents was clearly established under the 14th Amendment.

But that reasoning is now faulty because, in the interim, the Dobbs decision changed the law of the land on abortion, Chapman argued.

“Doe’s claims rely on the proposition” that requiring parental notification of a judicial bypass proceeding must satisfy the undue burden test announced in Casey, Chapman said.

That precedent is now null and void, she added, arguing the Supreme Court should vacate the 8th Circuit ruling and remand the case to that court.

Doe’s attorneys must respond to the petition by Nov. 3.

The office of Missouri Attorney General Eric Schmitt, a Republican, is representing Chapman. Schmitt is currently running for a U.S. Senate seat in Missouri in the Nov. 8 election.