The U.S. Supreme Court is deliberating over a case centered on a series of pro-life pregnancy resource centers targeted by New Jersey’s attorney general. The Supreme Court’s nine justices heard oral arguments Tuesday in First Choice Women’s Resource Centers, Inc. v. Platkin, aimed at determining whether or not the First Choice pregnancy resource centers could file a First Amendment lawsuit in federal court or would have to wait until state court’s finished litigating the matter first.

In 2023, New Jersey Attorney General Matt Platkin (D) issued a subpoena to First Choice, which operates five pregnancy resource centers in the Garden State, demanding information on clients and donors. Platkin claimed to be investigating whether or not First Choice was engaging in deceptive business practices but had not received a single complaint or allegation against First Choice. The attorney general subpoenaed a decade’s worth of information, including all advertisements, client communications, personnel records, documents on abortion pill reversal, and the names, addresses, phone numbers, and places of employment for over 5,000 donors.

The pregnancy resource centers filed a lawsuit in federal court, claiming that the subpoena was unlawful and had a chilling effect on First Choice’s First Amendment rights to freedom of speech and freedom of association. However, Platkin then filed a motion in the New Jersey Superior Court of Bergen County to enforce the subpoena, so Judge Susan Wigenton of the U.S. District Court for the District of New Jersey determined that First Choice’s federal lawsuit was premature until litigation had concluded at the state level. The U.S. Court of Appeals for the Third Circuit agreed, charging that First Choice’s injury was speculative until the New Jersey state court compelled compliance with Platkin’s subpoena. Therefore, First Choice appealed to the Supreme Court. “Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?” the pregnancy resource centers asked.

The justices debated that question on Tuesday. Erin Hawley, an Alliance Defending Freedom (ADF) attorney representing First Choice, said that the subpoena Platkin issued “violates the right of association. Yet the lower courts held that First Choice must litigate its First Amendment claims in state court.” Doing so violates Supreme Court precedent, the longstanding jurisdictional obligations of federal courts, and 42 U.S. Code Section 1983, Hawley argued. Over the course of oral arguments, the majority of the Supreme Court’s justices appeared to side with First Choice and favor reviving the group’s federal case.

In recent years, Justice Clarence Thomas has often been the first to pose a question. “Were there complaints against you that stimulated the subpoena?” he asked. Hawley, on behalf of First Choice, answered, “No, Your Honor. The attorney general has never identified a single complaint against First Choice.” Thomas also suggested that Platkin’s office tried to frame the subpoena as a “request” rather than a means of compulsion. “I’ve never heard the term ‘subpoena request,’” Thomas joked. “But did you view this as a request?” Hawley responded by noting that the Latin “term for subpoena means under penalty. If you look at the face of the subpoena, it twice commands First Choice to produce on pain of contempt, and it twice threatens that the failure to comply with the subpoena, not a later state court order but with the subpoena, shall render First Choice liable for contempt and other penalties at law.”

One of those threatened penalties was the dissolution of business. “That is a death knell for nonprofits like First Choice,” Hawley observed. Justice Elena Kagan agreed with Thomas’s point. “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,” she quipped.

Platkin’s Chief Counsel Sundeep Iyer warned the court that a decision allowing federal lawsuits to block subpoenas issued by the state could “open the floodgates” and overwhelm federal courts with lawsuits that would ordinarily be addressed at the state level. Hawley, however, argued that the application of one of two legal theories would sufficiently narrow the number of cases that could come before federal courts. “As far as scope goes, Your Honor, we don’t think that either of them would open the floodgates,” she stated, noting that “there are a couple of procedural safeguards built in” in such cases.

Justices Amy Coney Barrett and Sonia Sotomayor tried to further narrow the scope, insisting that the “irreparable harm” brought before the courts must be the First Amendment chilling effect, rather than litigation costs, which Sotomayor noted would be incurred whether challenging the constitutionality of the subpoena in federal or in state court. “I think you have to rely on the chilling effect to your First Amendment rights, and if you don’t rely on that, then every single case implicating an alleged constitutional violation like selective prosecution, vagueness, I could go on and on, all of those subpoenas will end up in federal court,” she observed.

Previously, the attorneys general of both California and New York have also targeted pregnancy resource centers. California Attorney General Rob Bonta (D) filed a lawsuit against two pro-life organizations in 2023, using argument similar to Platkin’s and claiming that the pro-life groups relied on deceptive business practices to promote abortion pill reversal procedures. Prior to Bonta’s tenure, then-California Attorney General Kamala Harris (D) tried to compel pro-life pregnancy resource centers to recommend abortion to clients. In New York, Attorney General Letitia James (D) sued pro-life organizations and pregnancy resource centers who promoted abortion pill reversal, calling the practice “deceptive advertising.”

The Supreme Court’s ruling, expected to be released in the summer, will determine whether or not pro-life pregnancy resource centers targeted by blue state officials can take their First Amendment complaints directly to federal courts or must first be dragged through blue state courts.