A case of subpoena threats

Attorneys for New Jersey pro-life pregnancy resource centers argued before the U.S. Supreme Court on Tuesday, challenging a state subpoena that would require the centers to divulge their donors’ names and information to New Jersey officials.

Although the case arose after New Jersey Attorney General Matthew Platkin, an abortion advocate, claimed the pregnancy centers may have misled donors, the arguments at the Supreme Court on Tuesday were focused on a much more technical issue: Can First Choice sue over the subpoenas in federal court, or must it first contest them in state court?

The outcome of the case appeared far from certain on Tuesday as justices wrestled with just how far they should go in opening the doors of federal courts to challenges of state investigative subpoenas.

Platkin issued the investigative subpoena to First Choice Women’s Resource Centers in 2023. He claimed that the group’s pro-life centers may have misled donors about whether they provide certain “reproductive-health services”—a phrase that serves as a euphemism for abortion.

First Choice argues that Platkin intends for the subpoenas to discourage the ministry and its donors from exercising their First Amendment rights. It says Platkin’s playbook is clear: Expose donors to harassment by pro-abortion advocates, dry up funding, and, ultimately, shut down the centers.

Platkin noted the subpoena hasn’t been enforced against First Choice, and he claims that a federal court lacks jurisdiction to consider the pregnancy centers’ challenge. Lower courts have agreed. In a January 2024 ruling, U.S. District Judge Michael Shipp threw out First Choice’s challenge to the subpoena after he concluded it was not yet ripe for review.

In a December 2024 opinion, an appeals court panel also sided with Platkin. First Choice then appealed to the Supreme Court earlier this year.

At Tuesday’s arguments, First Choice counsel Erin Hawley pointed to a credible threat that the state could enforce the subpoena with a court order. She also noted that the state’s mere issuance of the subpoena would have a chilling effect on the nonprofit and its potential donors’ First Amendment rights. “First Choice’s associational interests were harmed the moment it received a coercive subpoena demanding donor names on pain of contempt,” argued Hawley, an attorney with Alliance Defending Freedom. (Hawley is also a WORLD Opinions contributor.)

“Did you view this as a request?” asked Justice Clarence Thomas.

“Absolutely not, Your Honor,” Hawley answered. “It twice commands First Choice to produce on pain of contempt, and it twice threatens that the failure to comply with the subpoena—not a later state court order but with the subpoena—shall render First Choice liable for contempt and other penalties at law. Some of those other penalties at law are business dissolution.”

The justices also explored which theory of relief was more appropriate in determining whether First Choice had shown an injury sufficient to give it a right to proceed in federal court.

Justice Elena Kagan asked Hawley to explain how she viewed two theories of relief.

Hawley said that, under an associational harm theory, First Choice would have to show that the subpoena would chill a reasonably objective nonprofit’s speech. But under a pre-enforcement theory, she said, it would have to show a reasonable threat of enforcement. “There’s no question this subpoena arguably burdens First Choice’s First Amendment rights,” argued Hawley.

Kagan also asked Hawley about the scope of relief, perhaps suggesting, as the state argued, that a ruling favorable to First Choice would open a flood of litigation over challenges to state investigative subpoenas. Hawley argued that several procedural safeguards precluded such a result. “You would need to show irreparable harm in order to get a preliminary injunction to enjoin the state official,” said Hawley. “In most cases outside of the First Amendment context, we think that would be relatively difficult.”

Sundeep Iyer, chief counsel to the New Jersey attorney general, argued that First Choice could not claim a credible threat of enforcement or a chill of First Amendment rights since no court had ordered compliance with the subpoena. That prompted a battery of questions from conservative and liberal justices.

Chief Justice John Roberts got to the nub of the concern. “Do you think there is a credible chilling effect from the state seeking full names, phone numbers, addresses, present or last known place of employment, of every one of their donors?” he asked.

Iyer pointed to the allegations in First Choice’s complaint. “All of the harms they identified are tethered to a future downstream state court order requiring disclosure, but they’re not tethered to the subpoena itself,” he said.

Kagan echoed Roberts’ concern. “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,” she said.

Justice Brett Kavanaugh asked Iyer to respond to a friend-of-the-court brief from the American Civil Liberties Union that raised a concern about “suppression by subpoena and censorship by intimidation.” Kavanaugh said that subpoenas’ chilling effect on speech is “obvious.”

Iyer said that while the subpoena alone could not “get someone in the federal courthouse doors,” the subpoena combined with other factors—like statements by a public official saying that donors would be targeted—might.

In addition to the ACLU, an array of organizations filed friend-of-the-court briefs in support of First Choice. Several of the groups could also be subject to similar state investigative subpoenas. NetChoice, a trade association that has litigated laws aimed at regulating the content moderation policies of social media platforms like Facebook, warned that state investigative subpoenas, which often lack meaningful judicial oversight, allow states to unfairly target groups they don’t like.

“Investigations can drive viewpoint discrimination and retaliation underground, away from public scrutiny,” NetChoice argued in its brief. “This risk is heightened by the sweeping investigative powers states have conferred on their officials.”

Some local governments and one state, Massachusetts, support New Jersey. The Federation of State Medical Boards cautioned in its brief that allowing immediate challenges in federal court to state investigative subpoenas—like the ones medical boards issue to investigate medical professionals—would divert and delay enforcement.

Justices are expected to issue a ruling in the case by June.