The Supreme Court on Monday agreed to review New Jersey Attorney General Matthew Platkin’s (D) subpoena seeking donor records from a network of anti-abortion clinics.
In a brief order, the justices said they will examine whether First Choice Women’s Resource Centers can mount a First Amendment challenge in federal court.
Lower judges ruled the group’s free speech claim was not ripe because it could be brought in state court instead, but First Choice warned that holding would create a “Catch-22” that prevents a federal judge from ever reviewing the subpoena’s constitutionality.
“For a century and a half, Congress has provided the targets of a state official’s malfeasance with a federal forum in which to raise their constitutional claims,” the group wrote in its petition. “Yet the Third and Fifth Circuits have eliminated that forum for the targets of state investigative demands.”
Platkin’s office issued the subpoena as it investigates whether First Choice is violating New Jersey’s consumer fraud and other state laws by misleading donors and potential clients about what health services it provides.
First Choice has accused Platkin of showing “hostility” against its anti-abortion stance, calling it an “invasive” subpoena that would chill donors’ willingness to support the clinics.
A state court issued an order enforcing the subpoena but did not resolve the group’s First Amendment claims. No documents have been turned over yet, as Platkin agreed to put the proceedings on pause until the Supreme Court resolves whether the group can bring its free speech claims before a federal judge.
The case is expected to be argued during the high court’s next annual term, which begins in October.
First Choice is represented by Alliance Defending Freedom, a conservative Christian legal group that regularly notches Supreme Court victories on cases related to religion, LGBTQ issues and abortion.
It cautioned that the legal claims at issue often become moot before a case reaches the Supreme Court, stressing its challenge is a rare vehicle that properly tees up the question for the justices’ consideration.
“This case may be the unicorn that allows this Court to review an important issue that would otherwise escape review,” the group wrote.
Platkin’s office urged the Supreme Court to let the lower ruling stand, saying it applied “long-established principles” and did not meet any of the strict criteria the justices consider when determining which cases to take up.
“The Third Circuit specifically considered Petitioner’s allegations and record evidence, along with the unique procedural posture, and held that Petitioner had not sufficiently presented any chill to its constitutional rights stemming from the subpoena,” Platkin’s office wrote in court filings.
First Choice’s request for the court to take up the issue was backed by Americans for Prosperity Foundation, anti-abortion groups, religious organizations and Advancing American Freedom, the political group founded by former Vice President Pence.
