Supreme Court justices seemed skeptical of arguments from the New Jersey Attorney General’s Office justifying subpoenas of a network of pro-life pregnancy centers on Tuesday. 

New Jersey Attorney General Matthew Platkin claimed First Choice Women’s Resource Centers may have made misleading comments about abortion and issued broad subpoenas to force the group to provide donor information, along with other documents.  

The justices are weighing whether New Jersey’s subpoena discouraged the group and donors from exercising their rights under the First and 14th amendments, which can be challenged in federal court, or whether the group must instead litigate its claims in state proceedings. 

Erin Hawley of Alliance Defending Freedom represented First Choice, while Sundeep Iyer, chief counsel for the Attorney General’s Office, argued for New Jersey.

Here are four key takeaways from the oral arguments Tuesday.

1. ‘Suppression by Subpoena’

The American Civil Liberties Union, which consistently champions abortion access, sided with First Choice. Justice Brett Kavanaugh, a Trump appointee, asked about the ACLU’s amicus brief that warned of “suppression by subpoena and censorship by intimidation.”

Iyer argued that the issuance of a subpoena is not enough to chill free expression.

“You could have situations where there are other government statements or other government actions that themselves create an objective chill that might, together with the subpoena, be sufficient to establish standing,” Iyer said. 

However, Hawley argued that Platkin’s office had established a threat. 

“This is the context of a hostile attorney general who has issued a consumer alert, urged New Jerseyans to beware of pregnancy centers, and assembled a strike force against them,” Hawley said. 

The ACLU’s brief demonstrates that the question before the court is not a partisan or ideological matter, said Thomas Jipping, a senior legal fellow with The Heritage Foundation. 

“The fact that the ACLU is on the pregnancy center’s side shows that a decision in this case will affect the First Amendment rights of groups across the ideological spectrum,” Jipping told The Daily Signal. 

“Conservative and liberal justices seemed interested in the same issues, and their questions suggest that First Choice is likely to prevail,” Jipping added. “The broader impact of the case will depend on how the Court resolves some of the technical questions that dominated the argument.”

2. ‘Ordinary Person’

First Choice has argued state’s subpoenas for donor and other information violated its First and 14th Amendment rights. Core to the state’s defense is that an attorney general’s subpoena is not “self-executing,” meaning it is effectively a request for documents until a court enforces it. 

Justice Elena Kagan, a Barack Obama appointee, said being told a subpoena had to be stamped by a judge would not be reassuring to an organization or a donor.

“What’s an ordinary person supposed to think? And what’s an ordinary person supposed to do based on what an ordinary person is supposed to think?” Kagan asked.

Iyer replied that the state court has not enforced the subpoena.

“You could look at the facts of this very case to see that the state has sought an enforcement order from this state court for more than two years. The state court has repeatedly declined to enforce production,” Iyer said. “My friends on the other side haven’t alleged anything about success rates, for example, for subpoena enforcement.”

3. ‘No Complaints’

Justice Clarence Thomas, a George H.W. Bush appointee, asked, “Did you have complaints that form the basis of your concern about the fund-raising activities here?”

Iyer responded, “We certainly had complaints about crisis pregnancy centers.” But, when pressed, he admitted, “We haven’t had complaints about this specific center.”

Thomas replied, “So, you had no basis to think that they were deceiving any of their contributors?”

Iyer argued, “We had carefully canvassed all of the public information that is provided on the website, of First Choice, in making a determination that we wanted to initiate an investigation.” 

“State governments, federal government, initiate investigations all the time in the absence of complaints where they have a reason to suspect that there could be potential issues of legal compliance,” Iyer later said. 

Later, Trump-appointed Justice Amy Coney Barrett asked, “I gather that you think that website might have made them think that this was an entity that provided abortion care, as opposed to a pro-life entity.”

Iyer said, “That’s right, your honor.”

During the rebuttal at the end of the arguments, Hawley said the donor website has “pictures of smiling faces of babies and their families.” She added no one would question that the donor page belongs to a pro-life group and not Planned Parenthood.

4. ‘That’s Not How This Works’

In November 2023, Platkin’s office began targeting First Choice, demanding 10 years of documents.

“It commands it to produce 28 different categories of documents, including every solicitation, email, and text message it sent to its donors,” Hawley explained. “It commands it to produce donor names, addresses, phone numbers, as well as places of employment, Your Honor, and it also chilled First Choice and its donors’ First Amendment rights.” 

Plaintiffs point to precedent from the 1958 case NAACP v. Alabama, and the 2021 case of Americans for Prosperity Foundation v. Bonta, which affirmed that organizations did not have to make public the name of their donors, out of fear of potential retaliation.

Arguing for the state, Iyer insisted that the attorney general’s office was trying to protect donors, not out their names. 

Chief Justice John Roberts, a George W. Bush appointee, expressed doubts.

“You think it might have an effect on future potential donors to the organization to know that their name, phone number, address, etc. could be disclosed as a result of the subpoena?” Roberts asked. 

Iyer said, “It certainly has not, in this case.” 

Iyer said the plaintiffs produced no evidence of a donor afraid to donate to First Choice because of the attorney general’s action.

Roberts seemed unconvinced.  

“Somebody comes in and says, ‘I’m chilled. I don’t want to reveal my name, address, phone number, etc. Here’s my affidavit.’ That’s not gonna work, is it?” the chief justice asked. 

Iyer replied, “That is something they could have pleaded here, but they did not plead it.”

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