Supreme Court Weighs First Amendment Rights of Pregnancy Centers

New Jersey’s demands for donor lists may have gone too far.

The US Supreme Court heard oral arguments on December 2 in First Choice Women’s Resource Centers, Inc. v Platkin. The court’s forthcoming decision will have far-reaching impacts for pregnancy centers across the country that have experienced fierce attacks in pro-abortion blue states. At issue is whether pregnancy centers can sue in federal court when state officials infringe their First Amendment rights.

Pro-Abortion Extremism

Planned Parenthood and other abortion service providers have long benefited from public funding of life-ending procedures for pregnant women seeking to terminate their pregnancies. After Roe v Wade was overturned, panic in blue states went into hyperdrive, not just to support abortions but to attack those who offer mothers an alternative. Privately funded pregnancy centers help women who wish to keep their babies by providing diapers, baby bottles, instruction, and moral support.

Some blue states have resorted to statutory efforts to stop pregnancy centers from serving mothers who often feel they have no choice but to abort their child for lack of means. Alleging that pregnancy centers engage in “false advertising” because they do not make it clear that they do not offer abortion services, Vermont enacted a law that banned them from advertising. After Alliance Defending Freedom (ADF) filed suit, Vermont amended its statute to permit advertising, though it retained provisions that threatened centers with fines and other penalties for allegedly deceptive practices.

New Jersey’s Attorney General Matthew Platkin took a different tack, assembling a strike force to issue a consumer alert about the potential threat that pregnancy centers might pose to expectant mothers by offering support services without clearly stating that they don’t provide abortions. (This effort did not give mothers much credit for understanding the difference between Planned Parenthood and a real planned parenthood.)

Over-the-top Persecution?

Not satisfied that he had done enough to protect mothers from inadvertently giving birth to their children, and lacking a single disclosed instance of any citizen being misled by a New Jersey pregnancy center, Platkin used his office to intimidate the nonprofit organizations with lawfare. He dispatched letters to First Choice Women’s Resource Centers, Inc., and others like it, requesting details on donors’ names, solicitation letters, emails, and other burdensome demands.

ADF was on scene quickly to file suit, alleging that the Platkin missives abridged the First Amendment by undermining the right of assembly implicit in donor support and communications. Because further action would be required to formally issue the threatened subpoenas, described as “non-self-executing,” lower federal courts dismissed the First Amendment challenges, essentially ruling that the plaintiffs would first have to sue in state court or experience the issuance of a court-ordered subpoena for the case to be “ripe” to be heard.

ADF appealed these decisions to the US Supreme Court, asserting that the letters themselves threatened penalties and other measures with profoundly alarming effects, and that federal civil rights laws allowed the plaintiffs to have their day in federal court. The arguments primarily concerned this procedural issue: Can pregnancy centers sue in federal court without first experiencing harsher penalties by state agencies?

Pregnancy Centers Nationwide Implicated

Justice Ketanji Brown Jackson highlighted the chicken-and-egg quandary faced by First Choice from a threatening letter but not yet a full-fledged subpoena, asking, “What if you’re right that the subpoena is bogus? … Then I guess we’d expect the state court would agree with you and so there really isn’t a credible threat that it will be enforced.” This line of reasoning suggests that First Choice must exhaust its remedies in state court, and would only have a right to sue in federal court if the New Jersey courts affirmed the power of its attorney general to issue the threatened subpoenas.

New Jersey’s attorneys argued that the letter did not violate the First Amendment because they were simply seeking information to conduct an investigation, not targeting donors or releasing their names publicly. In a statement that may hint at the direction the majority of the Court will take in the matter, Justice Elena Kagan responded critically:

“An ordinary person, one of the funders for this organization or any similar organization, presented with this subpoena, which asks for name, address, telephone number, email, contributions, and all kinds of other information, is not going to take that as very reassuring, that ‘you’re not going to use this information in ways that might compromise my privacy.’”

Perhaps even more suggestive of the eventual outcome is that there appears to be bipartisan agreement that New Jersey’s AG went much too far. Politico reported that Jeanne LoCicero, an attorney with New Jersey’s ACLU, indicated that the organization backs the First Choice center, stating:

“We are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk. Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.”

Pregnancy centers nationwide will be watching for the upcoming Supreme Court ruling on their rights to help women deliver healthy babies. So, too, will abortion-supporting state authorities.