A fight over First Amendment rights

Aimee Huber is the daughter of a pastor. Her father preached a sermon on the sanctity of life when Aimee was just twelve years old. From that moment, Aimee knew she wanted to help women facing unplanned pregnancies. She’s now the executive director of First Choice Women’s Resource Centers, a pregnancy center with five locations, serving women and families in New Jersey since 1985. Little did twelve-year-old Aimee know that her childhood passion for life would put her squarely in the sights of the attorney general of New Jersey or that a case involving the pregnancy center she leads would be headed to the Supreme Court of the United States in an effort to protect crucial First Amendment freedoms.

First Choice provides free medical services and material support to women and families. Over the last four decades, First Choice has offered crucial resources to tens of thousands of women. First Choice is providing real aid to women in need. In 2022 alone, pregnancy centers like First Choice provided 500,000 free ultrasounds, 200,000 STD tests, 3.5 million packs of diapers, and 43,000 car seats to expecting families. This support was worth more than $350 million.

Studies show that many women do not choose abortion from a place of empowerment. A majority of women who had an abortion, for example, told Human Coalition that they would have chosen to parent if their circumstances were different. And other surveys reveal that women often regret their abortions. Pregnancy centers are trying to change those circumstances and empower and support women so that they have real choice.

Pregnancy care centers are there for women when no one else is. They offer information, crucial resources, and free medical care. In line with the adage that no good deed goes unpunished, the pro-abortion lobby has deemed them public enemy number one. Prominent politicians like Elizabeth Warren label them “fake clinics”—simply because they don’t perform abortions. And 15 blue state attorneys general signed a letter pledging to use their office to go after pregnancy centers.

New Jersey was one of those states and First Choice one of those targets. After the Supreme Court’s decision in Dobbs, the attorney general of New Jersey established an abortion “Strike Force.” The Strike Force prepared a statewide “consumer alert” to warn New Jerseyans about the obvious—that pro-life pregnancy centers like First Choice “do NOT provide abortion.” The alert redirected women to Planned Parenthood. In fact, the attorney general enlisted Planned Parenthood’s help in drafting the consumer alert, sending a draft of the consumer alert to the abortion provider for feedback.

Attorney General Matthew Platkin then targeted First Choice. He served an invasive investigatory subpoena on the pregnancy center demanding donor identities and other sensitive information. Without identifying a single complaint, the attorney general suggested that donors might have been misled into thinking they were donating to an abortion facility. Yet First Choice is a faith-based nonprofit that advocates pro-life views. It does not provide or refer for abortions, and it states so plainly on every page of its client website.

Facing harm to its First Amendment association and speech rights, First Choice filed a civil rights case in federal court. First Choice alleged that the attorney general’s subpoena had chilled both its protected associations with donors and its speech. Yet the lower federal courts held that First Choice could not present its constitutional claims in federal court because it must first litigate them in state court. That conclusion is plainly wrong. Congress enacted Section 1983 in order to guarantee “a federal forum for claims of unconstitutional treatment at the hands of state officials.” The Supreme Court, which has agreed to decide whether the case can go to federal court, has held that state litigation is “not a prerequisite” to a federal section 1983 action. For a century and a half, Congress has provided the targets of a state official’s malfeasance with a federal forum in which to raise their constitutional claims. Needless to say, there is no subpoena exception to section 1983.

The civil investigatory powers of state attorneys general are expansive. State attorneys general have used them to target pro-life pregnancy centers in California, New York, Washington, and New Jersey. Civil rights plaintiffs like First Choice whose First Amendment rights are impaired by such investigations have the right to file suit in federal court. First Choice looks forward to advocating for those rights before the United States Supreme Court.

Editor’s note: The author and Alliance Defending Freedom represent First Choice.