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New Jersey Attorney General Matthew J. Platkin (D) issued a subpoena in 2023 - part of an investigation into whether a chain of faith-based, antiabortion pregnancy centers were deceiving clients and donors by falsely suggesting they offered abortion referrals.
First Choice Women's Resource Centers Inc. quickly sued in federal court. The broad request for donor information and other material chilled its First Amendment rights and was an act of intimidation by an official hostile to the group's views on abortion, the organization said.
Tuesday, the Supreme Court appeared sympathetic to First Choice's argument, which is backed by other religious and antiabortion groups and also by some free-press advocates. The threat of disclosure was enough to make donors think twice about giving to the group, several justices suggested.
"You don't think it might have a future effect on donors if their name, addresses and phone number is disclosed?" Chief Justice John G. Roberts Jr. asked an attorney for New Jersey.
The case turns on a technical legal issue - whether First Choice has met the bar to challenge the subpoena in federal court rather than state courts - but it has potentially wide implications.
A range of ideological groups, from LGBTQ+ advocates to firearms rights organizations, have increasingly come under scrutiny by attorneys general armed with broad powers. They say the ability to file suits against subpoenas in federal court at an early stage of litigation will give them a tool to fight politically motivated investigations. The Reporters Committee for Freedom of the Press told the justices in a friend-of-the-court brief that investigative subpoenas could be used to threaten news organizations that investigate official misconduct.
Erin M. Hawley, an attorney for First Choice, called the subpoena in this case "sweeping," adding there were 28 categories of documents the attorney general was seeking.
"That is a death knell for nonprofits like First Choice," Hawley said.
The case began after a state probe found some of First Choice's client-facing websites and donation pages omitted or obscured its antiabortion mission, saying it was "a network of clinics providing the best care and most up-to-date information on your pregnancy and pregnancy options." First Choice has five centers in New Jersey, where abortion is legally protected.
First Choice denies any wrongdoing.
Clinics like First Choice have been operating for decades to persuade women to continue their pregnancies, and they saw a surge of financial support after the Supreme Court struck down a right to abortion in 2022. Antiabortion strategists hoped more women would turn to centers like First Choice if they could not access an abortion. Red-state leaders rushed to fund the clinics to the tune of millions.
The clinics say they offer valuable services, but critics have accused them of masking their antiabortion mission and using false advertising to lure pregnant women, including patients who need medical care that the clinics are not properly equipped for. There are more than 2,500 pregnancy centers across the United States, according to estimates by researchers at the University of Georgia.
In 2023, a Massachusetts woman took a pregnancy center to court saying it had failed to catch signs of her ectopic pregnancy - which can be fatal if left untreated. The clinic later settled.
This is not the first case the Supreme Court has considered in this area.
In a major 2018 ruling, the high court ruled that pregnancy centers could not be required to tell their clients about abortion services, saying such a mandate would probably be a First Amendment violation.
Platkin issued his subpoena in November 2023 seeking the names of First Choice's donors, staff information and more, sparking a protracted and complicated court fight. First Choice argued that disclosing its donors would make them less likely to give money, chilling their free speech and association rights.
The legal question at the heart of the case is whether First Choice's claims are "ripe." To bring legal action in federal court, plaintiffs are required to show they have suffered an actual harm, not a hypothetical one.
The subpoena that Platkin issued for First Choice's records requires a state court in New Jersey to order its enforcement. To date, a state judge has told First Choice to respond to the subpoena but has yet to demand it turn over the records. For that reason, Sundeep Iyer, chief counsel to the New Jersey attorney general, said First Choice had not yet suffered a concrete harm.
Any harm was "wholly contingent on a future court order" that had yet to materialize, Iyer said.
But several justices pushed back on that idea, including liberal Justice Elena Kagan who said "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."
Iyer said if the justices embraced First Choice's arguments, groups might challenge thousands of subpoenas that state governments issue each year, creating a logjam in the courts.
"The risk would be federal court would be inundated," Iyer said.
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