The Supreme Court appeared more sympathetic on Tuesday to a group of pro-life pregnancy centers facing an invasive inquisition from New Jersey’s Democrat attorney general.
The case surrounds New Jersey Attorney General Matthew Platkin issuing a subpoena in 2023 to First Choice Women’s Resource Centers, asking for ten years of internal documents and donor lists. The state argues its subpoena is part of an investigation to determine if the organization violated the state’s consumer fraud laws by misleading donors and potential clients about its stance on abortion. First Choice contends the investigation has violated their First Amendment right to association and could have a chilling effect by deterring potential donors.
First Choice tried to challenge the subpoena in federal court, arguing that the state had violated the First Amendment, Breitbart News previously detailed. Platkin responded by filing his own lawsuit in state court, an action which led lower federal courts to rule that First Choice must pursue federal claims in state court first.
In response, Alliance Defending Freedom (ADF) filed a petition on behalf of First Choice asking the Supreme Court to hold that civil rights plaintiffs do not need to litigate challenges to state investigations in state court before they can bring federal claims.
ADF wrote on behalf of First Choice:
The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?
The Supreme Court agreed to take up the case in June. The question before the high court is largely procedural, although the case has broad-sweeping consequences for pregnancy centers in a post-Roe v. Wade landscape where pro-life organizations face more attacks, both violent and political. The case could affect thousands of pregnancy centers across the U.S. — as well as other kinds of non-profit organizations — with regard to how they may challenge state probes and whether the identities of donors are able to remain confidential.
Several justices on Tuesday appeared skeptical of New Jersey’s characterization of the subpoena as non-self-executing, meaning the attorney general would have to go to a state court to get permission to compel compliance. Platkin’s Chief Counsel Sundeep Iyer argued that First Choice did not show that the issuance of the subpoena chilled its First Amendment rights and contended the organization’s concerns hinge on a future order from a state court that has not occurred yet.
Justice Neil Gorsuch told Iyer the subpoena seems “pretty self-executing to me,” and conservative-leaning Justice Clarence Thomas said, “I’ve never heard the term ‘subpoena request.”
Conservative-leaning Justice Samuel Alito similarly suggested the state framed its subpoena as non-self-executing as a legal strategy and asked the ADF’s Erin Hawley exactly when New Jersey began arguing its subpoenas were not self-executing. Hawley replied that, to her knowledge, the attorney general made the “non-self-executing” argument for the first time in this case.
Iyer admitted that if the high court ultimately rejected the state’s non-self-executing claim, there would be “no dispute” that First Choice would have the right to sue “from the moment of the issuance of the subpoena.”
Justices also appeared skeptical of New Jersey’s claim that its subpoena does not chill First Amendment-protected activities.
Chief Justice John Roberts pressed Iyer on the subject, saying, “You don’t think it might have an effect on future potential donors … to know that their name, phone number, address, et cetera could be disclosed as a result of” a subpoena like the one issued to First Choice?
“An ordinary person, one of the funders for this organization, or for any similar organization, presented with this subpoena and then told, but ‘Don’t worry, it has to be stamped by a court,’ is not going to take that as very reassuring,” liberal-leaning Justice Elena Kagan added.
In an interesting twist, Justice Brett Kavanaugh pointed to a friend-of-the-court brief from the left-wing American Civil Liberties Union (ACLU) backing the right of pro-life pregnancy centers to seek relief in federal court.
“The broader common sense of the situation … would seem to say this is just obvious, that there’s some kind of objective chill from a subpoena on speech,” Kavanaugh said.
Attorney with the ACLU of New Jersey, Jeanne LoCicero said in a statement, per Politico, that her organization favors “different policy outcomes than” the pro-life pregnancy centers, but backs their legal position in the case.
“We are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk,” LoCicero said. “Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.”
Justice Alito seemed worried about the implications of forcing plaintiffs like First Choice to wait for state court orders to comply with the subpoena before they are able to seek redress in federal court on First Amendment claims.
Liberal-leaning Justice Ketanji Brown Jackson, who seemed more sympathetic to New Jersey’s arguments, weighed in on the subject, asking Iyer if First Choice would be “precluded” from pursuing a First Amendment claim in federal court after the state court had already ruled in the case.
“I mean, you’ve sort of made it impossible for them,” Jackson noted.
Iyer agreed that the state believes First Choice “would be precluded” from going to federal court in the case, an admittance which could work in First Choice’s favor.
The case is First Choice Women’s Resource Centers v. Platkin, No. 24-781 in the Supreme Court of the United States.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.
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