The Supreme Court heard arguments Tuesday in a case about pregnancy centers in New Jersey challenging a state investigation into the organization’s donors brought by the Democratic attorney general.
First Choice Women’s Resource Centers, a faith-based and pro-life pregnancy organization, argues that the subpoena from Attorney General Matthew Platkin is an attempt to scare people away from supporting the organization.
It’s the latest in the abortion-related battles since the Supreme Court’s 2022 decision to overturn Roe v. Wade that put faith, health care and partisan beliefs in national conversation.
However, First Choice Women’s Resource Centers v. Platkin is a bit more technical.
Case background
The justices must decide whether federal courts can rule on the organization’s claim that when Platkin and the state demanded information about its fundraising practices that it went against the group’s First Amendment rights, or if the organization should instead litigate it in state-level court.
Platkin issued subpoenas to First Choice in 2023 seeking information about the organization’s donors among other information. Platkin and the state were requiring the nonprofit to disclose its donors’ identities, as well as other donation documentation.
First Choice took the matter to federal court and filed a civil rights claim. The group argued that the state was discouraging it from exercising its First Amendment rights and challenged the subpoena. The group argued that the subpoena will have a chilling effect on its First Amendment rights and its donors rights, and essentially deter donors from future contributions if their information is made public.
The “chilling effect” dates back to the 1950s and was further established in 1958 with the Supreme Court’s landmark decision in NAACP v. Alabama, which ruled that if the NAACP handed over its membership lists to the state of Alabama, it would violate members’ rights to be associated with the organization and have a deterrent, or chilling, impact on members or potential members in the future.
The chilling effect has been a long argued topic.
In the past, it was focused more on left-leaning organizations seeking to protect their donors or members, but over time, it has flipped across the political spectrum and there are many right-leaning organizations seeing the same. The chilling effect itself is not partisan, it’s context-dependent, but since the ’50s, there have been an array of politically-involved cases on either side of the aisle that relate to chilling.
U.S. District Judge Michael Shipp determined that the issue was not ready for a federal court to review, since a state court is the one that has the power to overturn a subpoena. Platkin later went to the state court, asking them to advance the subpoena request. The state court allowed First Choice to object to some of Platkin’s requests.
Shipp later said that the state court did not determine if First Choice would face sanctions if it did not give Platkin the requested documents in the subpoena, landing the matter before a U.S. Court of Appeals. The appeals court upheld Shipp’s opinion and prompted First Choice to bring the case to the Supreme Court.
The arguments
First Choice leaned heavily on the court’s precedent and the impact of its previous ruling in the NAACP case.
“This Court has recognized the right to maintain the confidentiality of one’s associations from government disclosure demands,” First Choice wrote in its brief.
During oral arguments Tuesday, Erin Morrow Hawley, the attorney representing First Choice, continued the argument that the chilling effect on membership and donor lists has long been protected by the court.
Hawley argued that Platkin’s latest rationale for continuing the case against First Choice’s chilling effect argument fails for several reasons.
She argued that First Choice’s “associational interests” were harmed by Platkin’s “coercive subpoena” that demanded the donor information. Even if the subpoena has an unenforceable threat, it still “may chill First Amendment freedoms,” Hawley said.
Justice Clarence Thomas, the first to question Hawley, asked whether First Choice’s argument hinges on the “mere reception of the subpoena.” Hawley said that under the law, both a current and a future imminent harm to individuals can be applicable.
Hawley also received questioning from Chief Justice John Roberts, who noted the court’s precedents. He noted that First Choice was “putting a lot of weight on the word imminence” when talking about harm and the chilling effect.
She also faced questioning from liberal Justices Sonia Sotomayor and Ketanji Brown Jackson, who sought to clarify the petitioner’s argument.
Like Roberts, other justices drilled down on the language in this case. The attorney representing the respondents — who was questioned for longer than Hawley — was also asked about specific language, tenses and their intent.
Sundeep Iyer, the chief counsel to the New York attorney general, sought to highlight a discrepancy in First Choice’s argument about individuals and the alleged chilling effect, but was faced with pushback from some justices.
“I think the closest they get in this entire case, based on this factual record, is to alleging chill is a petition appendix … which says ‘each of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed,’” Iyer said. “But that’s a backwards looking statement of harm. It’s not about prospective harm.”
Iyer was cut off by Gorsuch, who questioned, “Really?”
“We’re going to now pick over the tense of the verb that they chose?” Gorsuch continued.
“What if they had used the future tense?” Justice Samuel Alito added. “If this information is disclosed, we will not donate.”
Iyer argued that the allegation is “tethered” to whether or not information will be disclosed at all, and the harm First Choice is alleging must be tied to the subpoena from Platkin. It also must be a self-executing subpoena for that harm to have a possibility of occurring, he argued.
The justices continued to sharply question Iyer over the merits of Platkin’s actions, and appeared to be skeptical of the state’s position.
While it remains up in the air about which direction the justices will ultimately decide, it appears that they want to stick with the precedent and protect individual rights from the chilling effect, no matter the partisan background in the case.
A ruling in the case is not expected until at least late June 2026.
What people are saying
The federal government filed a “friend of the court” brief supporting First Choice. Vivek Suri, the assistant to the U.S. Solicitor General, argued before the justices on Tuesday.
Suri argued that First Choice does not need to provide more evidence about individuals impacted by the chilling effect.
The government argues that the better question is whether there is credible threat of enforcement, meaning if Platkin and the state of New Jersey intend to enforce the subpoena through a lawsuit if First Choice doesn’t hand over the requested documents.
First Choice also received support from many other religious organizations. For example, The Church of Jesus Christ of Latter-day Saints filed a brief arguing on behalf of the First Amendment rights and religious organizations’ ability to protect individuals.
“Religious organizations regularly face intrusive demands for information about their internal management decisions from state and local officials,” the church and others wrote in the brief. “Such demands raise profound constitutional questions about such organizations’ First Amendment rights and the degree to which the government can intrude into their internal operations.”
First Choice also received the backing of Becket Fund for Religious Liberty, Americans for Prosperity and other law experts.
Stephanie Barclay, a law professor at Georgetown University, said in a statement that oral arguments Tuesday proved that the court was skeptical of New Jersey’s ability to move forward and noted the national implications going forward should the justices side with Platkin.
“Throughout the argument, multiple Justice expressed concern that the credible threat of compelled disclosure of donor identities — backed by the specter of enforcement — creates precisely the kind of chill on associational freedoms that NAACP v. Alabama was designed to prevent,” Barclay said.