“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.”

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.

... 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. 

“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.”

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.

... 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.