First Choice Women’s Resource Centers, a group of pregnancy resource centers in New Jersey, has asked the U.S. Supreme Court to consider its case about the state asking it to disclose information about its donors.
Photo via ADF
In November 2023, New Jersey Attorney General Matthew Platkin demanded that First Choice turn over many documents, including information it provides to clients, statements about abortion pill reversal, documents about personnel and outside organizations with which it works, and donor information.
Platkin has openly expressed his hostility toward pregnancy centers. “He issued a consumer alert—drafted with the help of Planned Parenthood—complaining that such centers do not provide or refer for abortion. He also signed an open letter pledging to take legal action against pregnancy centers,” the brief to the Supreme Court reads.
Alliance Defending Freedom, on behalf of First Choice, challenged the attorney general’s subpoena based on the First and Fourteenth Amendments to the U.S. Constitution. The subpoena chills the right to freedom of association and freedom of speech, the brief argues.
The federal courts dismissed the case, claiming it was not ripe until the state court enforced the subpoena. The attorney general then filed an enforcement action in state court.
The state court granted enforcement of the subpoena, but it declined to decide the federal constitutional claims raised by First Choice, finding them “premature.”
First Choice filed an appeal, but meanwhile, it began producing some documents requested by the subpoena.
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The U.S. Court of Appeals for the Third Circuit sent the case back to the federal district court, now stating that First Choice’s claims were ripe. However, in taking up the motion for an injunction, the federal district court again declared the claims would not be ripe until the state court “require[s] the subpoena recipient to respond to the subpoena under threat of contempt.”
Again First Choice appealed to the Third Circuit. The majority there said the case was still not ripe because the pregnancy center could still assert its constitutional claims in the state court.
“The lower courts have wrongly held that First Choice is relegated to state court to present its constitutional claims. That is inconsistent with civil rights law and with the First Amendment,” ADF Senior Counsel Erin Hawley said in a press statement.
There is a split in the U.S. Courts of Appeal about how to handle this question of whether a state investigatory claim has to be adjudicated in state court before a federal court has jurisdiction. “The Third and Fifth Circuits impose this state-court litigation requirement, but the Ninth Circuit holds that a concrete injury caused by the challenged subpoena satisfies Article III,” the brief states.
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