Supreme Court Hears Arguments in Case of Pregnancy Center Targeted by New Jersey

Supreme Court justices of all stripes seemed receptive Tuesday to a pro-life pregnancy center’s arguments challenging New Jersey’s demand for the center’s donor list and other sensitive information.

In First Choice Women’s Resource Center v. Platkin, the Court is not being asked to rule on the demand itself but on the Garden State’s contention that federal courts cannot consider the First Amendment issues raised by it until a state court has ordered its enforcement.

Subpoena Arena

Following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization (2022) decision, New Jersey Attorney General Matthew Platkin launched what Justice Amy Coney Barrett called a “war on pregnancy centers.”

Platkin, a Democrat, convened a “strike force” to issue a “consumer alert” accusing pregnancy centers of “providing false or misleading information.” Platkin’s “office even asked Planned Parenthood … to help him draft the consumer alert and then thanked the organization for its ‘partnership,’” Alliance Defending Freedom (ADF) senior counsel Erin Hawley recalled in a USA Today op-ed. (ADF is representing First Choice.)

In 2023, Platkin issued subpoenas to First Choice demanding “the names, phone numbers, addresses, and places of employment of many of its donors, in addition to up to 10 years of its internal confidential documents,” according to an ADF press release.

The pregnancy center sued in federal court, arguing that the subpoenas chilled its First Amendment rights to freedom of speech and association. As Hawley explained in her column:

Because revealing one’s membership or support for an advocacy group tells the world about a person’s most deeply held beliefs, the Supreme Court has held that donors have a constitutional right to anonymously support causes.

It stands to reason that donors to First Choice would be unlikely to donate knowing their information could be exposed to a state official who has a history of hostility toward pro-life viewpoints.

Platkin countered that the subpoenas are not “self-executing,” meaning a court would have to order their enforcement before they would take effect. Until such time, he contended, First Choice could not challenge the subpoenas in federal court.

Lower courts bought his arguments and dismissed the case, so First Choice appealed to the Supreme Court.

Supreme Skeptics

The High Court, however, did not appear quite so receptive to Platkin’s assertions. Multiple sources reported that all the justices questioned them.

The Daily Caller wrote that Justice Elena Kagan said, “An ordinary person, one of the funders of this organization or 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.”

Perhaps sensing that things were not going its way, New Jersey, according to LifeSiteNews,

argued … that it never actually would have punished the pregnancy center for not turning over documents (which it demanded). This claim drew skepticism from both Justice Sonia Sotomayor and … Barrett.

LifeNews.com reported that Barrett and Justice Clarence Thomas “inquired about why the New Jersey Attorney General needed First Choice’s donor information in the first place.” Thomas’ questioning forced New Jersey Chief Counsel Sundeep Iyer to concede that the state had acted entirely of its own volition, not in response to consumer complaints.

“So you had no basis to think that they were deceiving any of their contributors?” asked Thomas.

Iyer explained that, in the state’s opinion, First Choice’s website appeared to be “misleading donors,” so the state needed to track down the donors to determine whether they had been “deceived.”

Thomas’ response: “This seems to be a burdensome way to find out if someone has a confusing website.”

Justice Chillin’

Furthermore, penned LifeNews.com:

Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsuch all explored whether the mere subpoena itself with its demand for donor information incited a First Amendment “chill” on First Choice.

While Iyer clung to the rationale [that] the subpoena’s enforcement was dependent on a “downstream” court decision … Hawley, arguing on behalf of First Choice, stated the courts have “long safeguarded” donor lists. “A credible enforcement threat,” she noted, “and even an unenforceable threat may chill First Amendment freedoms.”

Regarding whether the case should remain in state court until that court rejects the First Amendment claims, Justice Brett Kavanaugh noted that an entity does not have to wait on state action to justify federal court review if a chilling effect is involved.

In fact, as Justice Ketanji Brown Jackson got Iyer to admit, current judicial doctrine would also preclude First Choice from filing a federal claim after a state court ruled on the subpoenas, making it “impossible” for the center ever to challenge them at the federal level.

Estranged Bedfellows

New Jersey’s claims are so outrageous that even the American Civil Liberties Union (ACLU) filed an amicus brief siding with First Choice. The organization issued a press release Tuesday stating that, while it disagreed with First Choice’s desired “policy outcomes,” it supported the center’s case on principle.

“Even before they’re enforced, law enforcement subpoenas seeking sensitive donor information threaten to scare away supporters essential to any nonprofit’s work,” said Brian Hauss, deputy project director of the ACLU’s Speech, Privacy & Technology Project. “At a time when government officials throughout the country abuse regulatory powers to punish their ideological opponents, federal courts must remain a venue in which people can vindicate their First Amendment rights.”

The court is expected to issue its decision in the case next summer.