Justices Seem Poised To Side With Crisis Pregnancy Centers In New Jersey Subpoena Fight

The Supreme Court waded into the abortion wars again Tuesday, but managed to do so while barely mentioning the subject.

Arguments pitting a chain of anti-abortion, faith-based pregnancy clinics against the New Jersey attorney general were underway for more than an hour before the word “abortion” was uttered in the high court chamber.

The case tests when and whether nonprofits and advocacy groups facing state or local investigations can challenge those probes in federal court as infringements of their First Amendment rights. Liberal and conservative organizations often prefer to pursue federal challenges because judges there are seen as more protective of free speech and free association rights.

Most justices seemed inclined to allow the First Choice Women’s Resource Centers to sue in federal court over a 2023 subpoena from the New Jersey attorney general that demanded detailed donor information and internal records.

The court’s ruling, expected this summer, could have broad implications for thousands of crisis pregnancy centers around the country — affecting what they can tell their patients and whether they can keep the identities of their funders confidential.

Several justices seemed highly skeptical during Tuesday’s arguments of New Jersey Attorney General Matt Platkin’s contention in a written brief that the subpoena simply amounted to a “request” for the sensitive donor information because a state court’s intervention is needed to actually enforce the demand.

“I’ve never heard the term ‘subpoena request,’” Justice Clarence Thomas opined.

“An ordinary person, one of the funders for this organization, or for any similar organization, presented with this subpoena and then told, but ‘Don't worry, it has to be stamped by a court,’ is not going to take that as very reassuring,” Justice Elena Kagan added.

The attorney representing the centers, Erin Hawley of the Alliance Defending Freedom, called the subpoena an “enormous burden” that carried a “credible threat of enforcement” and had a chilling effect on the group’s work and ability to woo donors.

Pressed by Thomas and other justices on whether New Jersey had a factual basis to go after the clinic’s records, Platkin’s Chief Counsel Sundeep Iyer pointed to the discrepancies between First Choice’s website for patients and their page for donors.

The patient-facing site urges visitors to “learn more about the abortion pill, abortion procedures, and your options in New Jersey,” despite the clinic offering neither abortion procedures nor pills. The donor-facing site, on the other hand, touts accomplishments including “successfully motivating today's teens to consider the benefits of practicing abstinence until marriage” and encourages supporters to help them make “well-reasoned arguments from a pro-life perspective.”

Iyer also warned that if the justices permitted a federal lawsuit over a mere subpoena, federal courts could become swamped with all sorts of fights traditionally handled by state judges.

“I think the risk would be that federal courts would potentially be inundated by these subpoena cases,” Iyer said.

Conservatives have held up crisis pregnancy centers as an alternative to Planned Parenthood and other providers who offer a more comprehensive range of services, including birth control and abortion. Yet the faith-based centers do not have to follow the same regulations as health care clinics, including privacy laws such as HIPAA. The breadth and quality of the services they offer also vary widely. Some have no trained medical personnel on site and offer mainly religious counselling and baby supplies, while others employ nurses and physicians who conduct ultrasounds, treat sexually transmitted infections and more. Some have been sued for withholding information or giving inaccurate information to patients.

New Jersey is one of several states that have sought to investigate and regulate crisis pregnancy centers as part of Democrats’ national efforts to shore up access to reproductive health care after the Supreme Court overturned Roe v. Wade in 2022. The state in this case is seeking documents that reveal whether First Choice made conflicting claims to patients and donors.

California, for instance, has similarly accused such centers of misleading patients, particularly around the idea of whether pill-based abortions can be “reversed” by taking a high dose of hormones — a practice considered dangerous by scientific researchers. California has also attempted to require crisis pregnancy centers to tell patients that they have a legal right to access abortion elsewhere, but the Supreme Court struck down that effort in 2018 as a violation of the clinics’ First Amendment rights.

Yet other progressive groups have raised concerns that the push to investigate and crack down on crisis pregnancy centers, if upheld by the Supreme Court, could backfire. In amicus briefs submitted in Tuesday’s case, organizations supporting immigrants and the LGBTQ community warned that a win for New Jersey could empower conservative state leaders to go after their own documents and donor lists.

In a sign of the strange bedfellows created by the fight, Justice Brett Kavanaugh noted Tuesday that the American Civil Liberties Union joined a friend-of-the-court brief backing the right of the anti-abortion centers to seek relief in federal court.

“The broader common sense of the situation … would seem to say this is just obvious, that there's some kind of objective chill from a subpoena on speech,” Kavanaugh said.

An attorney with the ACLU of New Jersey, Jeanne LoCicero, said in a statement that her group favors “different policy outcomes than” the crisis pregnancy centers involved in the case, but backs their legal stance. “We are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk,” LoCicero said. “Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.”

Indeed, federal courts have seen numerous cases in recent years brought by groups at different ends of the political spectrum seeking to block state enforcement actions.

Last year, the National Rifle Association won a unanimous Supreme Court ruling allowing the group to proceed with a federal-court challenge to a threatened crackdown by New York insurance regulators. At about the same time, a federal judge in Washington blocked Texas Attorney General Ken Paxton and Missouri Attorney General Andrew Bailey’s attempt to demand information from the liberal group Media Matters over its role in pressuring advertisers not to place their ads on X due to racist and extremist content on the social media platform.

President Donald Trump filed a similar but less successful lawsuit in 2021, asking a federal judge to shut down New York Attorney General Letitia James’ probe of his business empire and arguing the investigation was driven by political animus. The judge tossed out Trump’s lawsuit, ruling that federal courts were obliged to butt out because state-court proceedings were already underway.

Justice Ketanji Brown Jackson seemed the most skeptical of the clinics’ legal arguments. She suggested it would show more deference to fears of the anti-abortion pregnancy clinics and their donors than the high court showed in a recent ruling to people who expressed fear they could be targeted by immigration officials.

“We don’t employ some sort of a credible threat analysis in that context,” Jackson said.

The high court is expected to rule in the clinics’ case by the end of June.