WASHINGTON (BP) – The U.S. Supreme Court heard oral arguments Dec. 2 in a case involving a group of New Jersey pregnancy resource centers challenging a state subpoena asking them to hand over information about their fundraising practices.
The case, First Choice Women’s Resource Centers, Inc. v. Platkin, will decide whether a federal court has the authority to rule on First Choice’s claim that New Jersey’s subpoena is a violation of its First Amendment rights or whether First Choice must litigate its claim in state court instead.
New Jersey Attorney Matthew Platkin, the defendant in the case, issued subpoenas to First Choice Women’s Resource Centers in 2023 seeking information about the group’s donors. The subpoenas asked First Choice to turn over multiple things including documents sent to donors and identities of donors, except for those who made their donations through a specific website where they are able to remain anonymous.
First Choice Women’s Resource Centers, a network of faith-based pregnancy centers around New Jersey, filed a lawsuit challenging the state’s subpoena in federal court. They argued the subpoena has or will have a “chilling” effect on its First Amendment rights and those of its donors, meaning it could deter donors from making financial contributions to the organization if they know their identity may be provided to state officials.
Before Tuesday’s oral arguments, the Ethics & Religious Liberty Commission (ERLC) joined multiple other religious organizations in filing an amicus brief supporting First Choice.
“The state of New Jersey knew exactly what it was doing when it sent First Choice a threatening subpoena seeking to discredit and intimidate them because of their pro-life work,” said Gary Hollingsworth, ERLC interim president.
“Despite receiving zero complaints about the conduct of First Choice, New Jersey thought it was privy to the personal information of First Choice’s donors. This is clearly a constitutional overreach, which violates their First Amendment right of free association. Such aggressive action by the state cannot stand in a free society.”
After First Choice filed its lawsuit, U.S. District Judge Michael Shipp issued a decision that said the dispute was not yet “ripe,” in other words ready for a federal court to review because the state had not yet enforced or dismissed the subpoena.
Shipp’s conclusion that the case was not ripe essentially meant First Choice’s challenge to the subpoena would need to play out in state court.
After Platkin went to state court in New Jersey seeking to enforce the subpoena, that court rejected First Choice’s challenge, granting the attorney general’s request to enforce it.
The state court instructed First Choice to respond to the subpoena’s request for documents, although it later clarified those requests could have been answered by refusing to comply and negotiating which documents to hand over.
First Choice’s challenge returned to federal district court, where Shipp once again ruled their case was not yet ripe because although the state court allowed the attorney general to enforce the subpoena, it was not clear if First Choice would face sanctions if they refused to comply.
The U.S. Court of Appeals for the 3rd Circuit upheld this ruling from Shipp in a divided decision. First Choice then went to the U.S. Supreme Court, which agreed in June to hear the case.
First Choice argues that under Section 1983 of federal law, federal courts can review the constitutional claim now, without waiting for the state court to weigh in.
First Choice argued its case is ripe because Platkin’s subpoena should be non-self-executing, meaning the attorney general does not have the power in himself to enforce it and needs a court order to grant the subpoena. Yet, the language Platkin used clearly presents as self-executing, meaning First Choice would face imminent penalties if they do not comply.
Platkin argues his subpoena is not self-executing, and any injuries incurred by First Choice are speculative and not ripe for review in federal court because the injuries are not “imminent.”
Furthermore, the respondent argues that the real dispute in the case concerns First Choice’s allegation that the subpoena itself is an objective chill of its First Amendment rights. Platkin argues the subpoena does not produce this chilling effect, because donors can give anonymously through a specific website.
Justices seemed to favor First Choice’s argument, while questioning the attorney general’s stance on the interpretation of his subpoena.
Erin Hawley, lawyer arguing on behalf of First Choice, said, “First Choice’s associational interests were harmed the moment it received a coercive subpoena demanding donor names on pain of contempt.
“This is true irrespective of whether the subpoena is non-self-executing for even an unenforceable threat may chill First Amendment freedoms. The attorney general does not dispute that First Choice faces a credible threat of enforcement, and there’s no question that First Choice’s First Amendment interests are arguably burdened by the subpoena.”
Justice Amy Coney Barrett admitted she was sympathetic to First Choice’s argument that the subpoena at face value seems as if it carries penalties, but questioned the argument that it was actually self-executing and questioned Hawley on the matter.
Justices Sotomayor, Gorsuch, Alito and Jackson further questioned Hawley about the arguments related to the imminence of any penalties for First Choice.
Vivek Suri, assistant to the U.S. solicitor general, clarified that although the text of the subpoena at face value presents itself as self-executing, all subpoenas in the state of New Jersey are non-self-executing and the lower courts have treated it as such to this point. However, despite the nature of the subpoena, the language satisfies the “credible threat theory” and gives First Choice standing in federal court.
Sundeep Iyer, chief counsel to the attorney general of New Jersey, argued on behalf of the respondent and was grilled by the justices about the language of the attorney general’s subpoena being non-self-executing and the need to issue the subpoena in the first place.
Justice Gorsuch, in referencing the 3rd Circuit Court of Appeals ruling on the subpoena, said “I don’t know how to read that other than it’s pretty self-executing to me.”
Justice Alito challenged Iyer about where exactly did the attorney general’s office state on-record that its subpoena is not self-executing, and Justice Jackson questioned what would a self-executing subpoena look like versus what the current subpoena looks like.
In her closing rebuttal, Hawley pointed to a list of non-self-executing subpoenas provided in the plaintiff’s brief which she said read very differently than New Jersey’s subpoena.
The ERLC’s Hollingsworth said ultimately First Choice should be able to challenge its case in federal court because it is essential that people of faith have this access to defend themselves.
“In seeking relief for such blatant actions, First Choice – and other ministries –have to be able to avoid potentially hostile state courts by filing directly in federal court,” he said.
“As the ERLC asserted in its brief to the Court, people of faith must have access to federal courts to protect their rights. We are hopeful the justices see the significant threats to constitutional rights latent in this case and rule such that pro-life pregnancy resource centers and other Christian ministries can minister without the state intimidating them or their donors.”
A decision in the case is expected by summer 2026.