In November 2023, New Jersey’s Attorney General sent a subpoena to a group of anti-abortion nonprofit centers demanding the names of their donors.
State investigators said they were entitled to the donor lists as part of an continuing investigation into whether the group had misrepresented itself to donors and the public.
The organization, First Choice Women’s Resource Centers, a collection of five centers that offer free prenatal care, sued, arguing the subpoena violated its First Amendment freedoms of speech and association.
The Supreme Court will hear arguments on Tuesday in the dispute, which arose the year after justices overturned the constitutional right to abortion.
That 2022 ruling in Dobbs v. Jackson Women’s Health Organization led states throughout the country to examine access to abortion and put a spotlight on the centers, which abortion rights advocates have argued mislead women seeking abortions. The clinics often look similar to medical facilities for pregnant women, featuring signs offering ultrasounds and literature describing pregnancy tests, but abortion rights advocates say they actually exist to dissuade women from ending their pregnancies.
The issue before the justices is a narrow procedural question about whether First Choice brought the case to federal court at the right time in the process, what is known as being “ripe” in legal jargon, or whether the case must first go through state court. If the clinics win, it could clear the way for them to continue their First Amendment challenge in the federal courts. If they lose, they would most likely be unable to continue their federal case, at least until after further action in state court.
The case has led to some unusual alliances, including one between the anti-abortion centers and the American Civil Liberties Union, which filed a brief supporting their claims, arguing that such subpoenas for donor lists could have a chilling effect on free speech rights and asserting that state attorneys general across the political spectrum have used similar tactics, citing subpoenas issued by the Florida attorney general related to restaurants that have hosted drag shows.
The case started off as an investigation by the New Jersey attorney general into whether the centers had misled donors and potential clients into believing they would provide “certain reproductive health care services,” particularly abortion referrals.
The agency and the state’s Division of Consumer Affairs subpoenaed First Choice, seeking, among other information, a list of the group’s donors. Under state law, First Choice was not required to comply with the subpoena until after it was approved by a state court. If the organization had refused, as a next step, the state court could hold the group in contempt.
But before those steps played out, First Choice sued New Jersey in federal court, arguing the subpoena violated the First Amendment by chilling the group’s speech and harming its relationship with donors.
The case has had a long and winding road to the Supreme Court.
A federal judge first dismissed it, finding a lawsuit was premature because the state court had not yet tried to enforce the subpoena. First Choice appealed.
In January 2024, the attorney general’s office asked a New Jersey state court to enforce the subpoena on First Choice. The anti-abortion group asked the court to block the subpoena, but the state court denied the request and ordered First Choice to respond with any objections.
After a court-ordered meeting between the parties, lawyers for New Jersey clarified that they wanted only the names of donors who had given money through specific websites that they claimed might have misled donors about the group’s mission.
In July 2024, the U.S. Court of Appeals for the Third Circuit rejected First Choice’s appeal. A federal trial judge then dismissed the case, finding that the legal issues were not ready for review because the state court had not yet required First Choice to turn over a donor list or penalized the group for refusing to do so.
After the appeals court upheld that decision, First Choice asked the justices to weigh in. In court filings, the group argued that its claims were properly raised in federal court because First Choice suffered an injury “from the moment the government took action” by issuing the subpoena.
The group is represented by lawyers from the Alliance Defending Freedom, a conservative Christian law firm that has litigated a number of cases before the Supreme Court. It is scheduled to be argued by Erin Morrow Hawley, an A.D.F. lawyer and former law clerk to Chief Justice John G. Roberts Jr. Ms. Hawley, who is married to Senator Josh Hawley, Republican of Missouri, previously argued a Supreme Court case unsuccessfully challenging federal approval of the widely available abortion drug mifepristone.
In October, A.D.F. lawyers represented Kaley Chiles, an evangelical Christian who argued that a Colorado law barring mental health professionals from seeking to change a minor’s sexual orientation or gender identity violated her free speech rights. In January, A.D.F. lawyers are scheduled to appear before the justices again, this time to argue on behalf of state laws that bar transgender athletes from girls’ and women’s sports.
In Tuesday’s case, the Trump administration weighed in on the side of First Choice, arguing that lower courts had wrongly dismissed the case and that an injury occurred whenever a state official issued and threatened to enforce a subpoena.
Lawyers for New Jersey have countered that the case presents a narrow dispute and that First Choice failed to show that the subpoena would chill its speech or stop donors from giving to the group.
Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting.
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