Supreme Court hears oral arguments in pivotal NJ pregnancy center case

On December 2, the Supreme Court heard oral arguments in First Choice Women’s Resource Centers v. Platkin. In the pivotal case, First Choice is asking the Supreme Court to rule on whether it can file suit in federal court against a state official who is purportedly violating its rights under the Constitution.

Key Takeaways:

• New Jersey Attorney General Matthew Platkin issued a subpoena against First Choice Women’s Resource Centers in November 2023, demanding 10 years’ worth of documentation despite no allegations of wrongdoing.

• Platkin claimed he was searching for signs of false advertising by First Choice, despite a lack of complaints filed against the organization. 

• First Choice filed a suit in federal court to block the subpoena, but it was dismissed and taken up in state court, which refused to rule.

The Backstory:

In 2022, after the fall of Roe v. Wade, New Jersey Attorney General Matthew Platkin pledged to promote abortion and then opened an investigation into First Choice, claiming it may be engaging in false advertising, despite no complaints having been filed against it. 

In November 2023, AG Platkin issued a subpoena ordering First Choice to turn over a decade’s worth of documentation, including its statements on the abortion pill, information provided to clients and donors, personnel documents, copies of all of its solicitations and advertisements, and information on other organizations with whom First Choice has worked.

Platkin offered no evidence of wrongdoing to justify the subpoena. 

First Choice, which operates five pregnancy resource centers in New Jersey, argued that the subpoena violates its First Amendment rights and is part of a “hostile” campaign by Platkin, which would expose the names of private donors and their contact information.

EMERGENCY Pro-Life Briefing: Pregnancy Centers Under Fire Before Supreme Court Case (LIVE)

The legal group Alliance Defending Freedom (ADF) is representing First Choice, and explained in court filings, “His demand for donor disclosure objectively chills First Choice’s associational and speech rights, causing its donors to think twice before supporting the faith-based non-profit.”

During a webinar held on December 1 by multiple pro-life leaders, First Choice Executive Director Aimee Huber explained that the organization serves women who are facing unplanned pregnancies, and has been doing so for 40 years.

“Women who are scared and vulnerable and think that abortion is their only option come to us and receive professional services and compassionate care all free of charge since we opened,” she said. “We have served over 36,000 women and their families … and our services include pregnancy tests, ultrasounds to medically confirm pregnancy, options counseling, and the parenting program, which provides material services such as baby clothes and diapers. We receive no government funding.”  

Huber noted that there are no allegations of wrongdoing against First Choice, and that the subpoena is “simply a fishing expedition.”  

She added:

“New Jersey has the fifth-highest rate of abortion in our nation. Our state government has done everything they could to make New Jersey a sanctuary state for abortion, and since pregnancy centers like ours do not perform or refer for abortion, we are a target for a government that disagrees with our views. If our attorney general can bully us, it can happen in other states that promote abortion as well.”

In December 2023, ADF filed a lawsuit in federal court on behalf of First Choice, asking the court to enjoin the subpoena and arguing that donor information is protected when there are no allegations of wrongdoing. 

That’s when “things went off the rails,” said Erin Hawley, senior counsel for ADF.

The district court said the case must be taken to the state court. If the state court rules on a case, however, Hawley said a federal court cannot take up the case. The state court ultimately refused to rule. Then came a ruling against First Choice from the 3rd Circuit Court of Appeals.

In January 2025, ADF asked the U.S. Supreme Court to recognize First Choice’s right to file a federal lawsuit challenging the subpoena, and in June, the Court agreed to hear the case.

Federal vs State

Hawley explained during the webinar on Monday that the case regards whether First Choice, or any other organization, can bring First Amendment claims in federal court when they believe they have been unjustly targeted by a state official.

She explained, “The subpoena on its face twice threatens that failure to comply with the subpoena can result in contempt and other penalties. One of those penalties is actually the inability to practice, to do business, to help women in New Jersey any longer — so a really serious threat from the attorney general.”

She added, “... Congress expressly provided an action called Section 1983 and we think that’s one reason that we actually have a wide variety of amici supporting Aimee and her centers here, including people who don’t agree necessarily, ideologically, but they all agree that the right to present First Amendment claims in federal court when you have been harassed by a hostile state official is something that is guaranteed by Section 1983.” One of those amicus briefs was filed by the ACLU, which is ideologically opposed to the pro-life movement.

Section 1983 of Title 42 of the U.S. Code is a federal law allowing individuals to file lawsuits against state and local officials whom they believe have violated their rights under the Constitution and federal law. 

What We're Hearing:

On Tuesday, SCOTUSblog portrayed the Supreme Court's reaction to oral arguments from First Choice as "sympathetic" — including even some of the more liberal Justices.

Arguing on behalf of First Choice before the Court was ADF's Erin Hawley along with Vivek Suri, "an assistant to the U.S. solicitor general," according to SCOTUSblog. The federal government, in this case, is arguing on behalf of the pregnancy centers. Arguing for the New Jersey AG's office was Sundeep Iyer.

Amy Howe at SCOTUSblog summarized (emphases added):

Pressing the theory that [AG Platkin's] subpoena violates First Choice’s constitutional right of association, Hawley told the court that it should look at whether “a reasonable donor would have been chilled” by the subpoena – and that the answer in this case is “yes.”

Chief Justice John Roberts seemed to agree. “You don’t think,” he told Iyer somewhat incredulously, “it might have an effect on future potential donors … to know that their name, phone number, address, et cetera could be disclosed as a result of” a subpoena like the one that First Choice received?

Justice Brett Kavanaugh also was sympathetic to this argument. He noted that a “friend of the court” brief filed by the American Civil Liberties Union voiced concerns about “suppression by subpoena.” “[T]his is just kind of obvious that there’s some kind of objective chill,” he said.

Justice Elena Kagan appeared receptive to this argument as well. In a case like this, she posited, an ordinary person won’t be “particularly reassured by the fact that” you still need a court order before the subpoena will be enforced. The mere issuance of the subpoena, she seemed to suggest, would be enough to deter a potential donor.

Howe added:

... Alito (among others) also expressed concern about the effects of requiring plaintiffs like First Choice to wait until the state court orders them to comply with the subpoena before they can go to federal court to press their First Amendment claim.

Even [Justice Ketanji Brown] Jackson, who had been among the justices most receptive to New Jersey’s arguments, jumped in. Wouldn’t First Choice be “precluded,” she asked Iyer, from pursuing a First Amendment claim in federal court once the state court had ruled on it? “I mean, you’ve sort of made it impossible for them,” she added.

Iyer agreed that “we think they would be precluded” from going to federal court in a case like this – a concession that, while candid, likely garnered First Choice more sympathy. 

The Bottom Line:

The justices will issue a ruling in the case in either June or July of 2026, which will determine when and in what court a challenge to a state official’s request can take place.