Supreme Court to review New Jersey’s subpoena of faith-based pregnancy centers

By John Fritze, CNN

(CNN) — The Supreme Court will hear arguments Tuesday about a subpoena served on a faith-based nonprofit in New Jersey that runs “crisis pregnancy centers,” an appeal that has put both civil rights advocates and some of the nation’s best-known conservative groups on the same side.

First Choice Women’s Resource Centers is urging the 6-3 conservative court to throw out a decision from a federal appeals court that effectively required the religious nonprofit to continue fighting the subpoena in state court, rather than seeking early intervention from federal courts.

New Jersey Attorney General Matthew Platkin, a Democrat, subpoenaed the centers in 2023 as part of an investigation into whether the nonprofit violated consumer fraud laws. Pregnancy centers are opposed to abortion, but state officials said their marketing may have left some patients with the impression that they could receive abortions at the facilities.

The subpoena was aimed at evaluating whether the centers “or its staff engaged in misrepresentations and other prohibited conduct,” according to the state. It sought advertisements, donor solicitations and the identification of licensed medical personnel.

At a time when red and blue states are often pursuing radically different policies on abortion, immigration and LGBTQ rights, the religious nonprofit has asserted that both liberal and conservative groups are at risk of overzealous state officials using subpoenas to lean on groups they disfavor. The answer, First Choice said, is to let federal courts review those subpoenas at an early stage.

First Choice said that the subpoena at the center of its case, seeking information on most of its donors and other information, violates the First Amendment.

“The targets of state subpoenas extend far beyond pregnancy centers,” the group told the Supreme Court in written arguments. “When subpoenas violate the federal Constitution, these groups should not be relegated to state court to enforce their rights.”

It is an argument that has attracted an unusual coterie of support, including the Chamber of Commerce, the Conference of Catholic Bishops, the American Civil Liberties Union and the Reporters Committee for Freedom of the Press.

“A subpoena seeking sensitive donor information can chill a disfavored speaker’s protected associations long before it’s ever enforced,” the Foundation for Individual Rights and Expression told the court in a brief joined by the ACLU.

The type of subpoena at issue isn’t “self-executing,” which means Platkin needed to get a court to enforce it. New Jersey courts have not yet ordered the production of documents under threat of contempt. And so while the Supreme Court dispute touches on controversial issues, it’s really about when – and whether – groups may challenge such subpoenas in federal court.

Platkin has argued it’s too soon for First Choice to do so. A divided 3rd Circuit agreed, ruling last year that the center’s claims are not yet ripe for federal review.

The consequences of siding with First Choice, Platkin told the justices in written arguments earlier this year, “would be far-reaching, turning every quotidian subpoena dispute into a federal case.”

Weighing heavily on the case is a 2021 Supreme Court decision in which a majority invalidated a California rule requiring charitable organizations to disclose the names of contributors. Both that appeal and the current case from First Choice lean on a landmark Civil Rights-era decision from 1958 in which the court struck down an Alabama subpoena requiring the NAACP to disclose its membership list.

That compelled disclosure, the court said in a unanimous decision, would violate the right of people to associate with the group because they would reasonably fear retaliation for being named.

The Trump administration is siding with the pregnancy centers, arguing that the nonprofit faced a credible threat of being forced to turn over the documents. But the administration, which will take part in arguments Tuesday, has been quick to assert that its own subpoenas, issued by federal agencies, are subject to different rules.

New Jersey’s attorney general picked up on that distinction in its own briefing, suggesting the federal government is fine with letting federal courts review state subpoenas at an early stage – just not federal ones.

The federal government, Platkin said, can’t “stomach” quick review by federal courts for itself and instead “demands a bespoke exception for its own administrative subpoenas.”

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