On December 2nd the Supreme Court of the United States heard oral arguments in First Choice Women’s Resource Centers v. Platkin—a high stakes case involving a pro-life nonprofit and New Jersey’s Attorney General. The dispute began in November of 2023 when Attorney General Matthew J. Platkin (D) issued a subpoena (a legally binding order) demanding that First Choice produce ten years’ worth of documents detailing its donors’ names, addresses, and phone numbers as well as the organization’s statements on issues like abortion pill reversal.
Platkin targeted First Choice due to its religious convictions and pro-life work, alleging that these positions were less clearly advertised to its clients than to its donors.
First Choice filed a lawsuit against Platkin in December of 2023, arguing that this subpoena chills its First Amendment freedoms of speech and association. First Choice sought relief to no avail in both its Federal District Court as well as the U.S. Court of Appeals for the Third Circuit, with both courts saying they lacked jurisdiction.
This led First Choice’s attorneys at the Alliance Defending Freedom (ADF) to appeal to the Supreme Court. Thus, the actual technicality of the case before the Supreme Court involves the jurisdiction of the lower courts in hearing this case. As ADF Senior Counsel Erin Morrow Hawley argued, “First Choice is simply asking for its day in federal court….”
However, as the New York Times reports, though the actual case before the Supreme Court involves a rather narrow procedural question, “the backdrop of the dispute loom[s] large.”
This backdrop is indeed large—and deeply concerning to many across the political spectrum. The ability for a state attorney general to use the power of the government to target organizations for their religious or political beliefs is alarming for any honest observer, regardless of party affiliation.
In fact, many across the political spectrum have recognized this. First Choice boasted two unlikely allies in this case with both the Trump administration and the American Civil Liberties Union (ACLU) filing Amicus Briefs in support of the Petitioner. Though the ACLU holds views very much opposed to ADF on issues like abortion and LGBTQ+ rights, in this case they are in agreement. The ACLU rightly recognizes the dangers of Attorney General Platkin’s actions.
If a liberal attorney general in New Jersey could use the power of the state to coerce a pro-life group to chill its speech, then a conservative attorney general could do the same to a pro-abortion group in a conservative state. As Jeanne LoCicero, legal director of the ACLU of New Jersey, stated, “Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.”
A majority of Supreme Court justices appeared to agree. Though it is impossible to know the outcome of the case before the justices issue their opinion, the line of questioning in the oral arguments indicates a clear sympathy with First Choice’s concerns.
For instance, Chief Justice John G. Roberts Jr. asked Mr. Iyer, the attorney representing Platkin, if he didn’t think that this subpoena “might have an effect on future potential donors to the organization to know that their name, phone number, address, et cetera, could be disclosed as a result of the subpoena?”
Justice Brett Kavanaugh indicated similar suspicion, expressing the spirit of ACLU’s brief in saying that it is “just kind of obvious that there’s some kind of objective chill from a subpoena on speech.”
Platkin’s case rested on the assertion that the subpoena was “non-self-executing,” meaning that it would require court action in order for First Choice to be made to comply. In other words, because a New Jersey court had yet to take action that forced First Choice to turn over the subpoenaed records, the subpoena could not have a chilling effect on First Choice’s speech nor its associational interests.
This argument, however, ignores the very function of a subpoena. A subpoena is a legally binding demand for information—in essence, demanding that an individual or organization give the state the requested information or else. In fact, the very Latin phrase subpoena duces tecum literally means “under penalty.”
For Attorney General Platkin to issue this subpoena is definitionally to chill First Choice’s associational interests. As Ms. Hawley argued these interests were harmed “the moment it received a coercive subpoena.”
Even Justice Elena Kagan, generally numbered among the more liberal justices, expressed similar sentiments, suggesting that an ordinary person would not be “particularly reassured” by the fact that a New Jersey court had yet to enforce the subpoena.
These reactions indicate that the Supreme Court will decide this case in favor of First Choice Women’s Resource Centers—and rightly so. Attorney General Platkin’s subpoena was a partisan use of government coercion to chill First Choice’s First Amendment rights of speech and association.
First Choice is absolutely right to appeal such a violation to federal courts and the Supreme Court would be absolutely right to uphold this right to appeal. Doing so would not only protect the future of the pro-life movement in liberal states—it would protect these rights of speech and association for all non-profits and their donors, regardless of religious or political affiliation.