Supreme Court likely to rule in favor of abortion opponents in challenge to state investigation

Many Democratic-aligned states have sought to protect abortion access and some have investigated whether pregnancy centers mislead women into thinking they offer abortions until it's too late to obtain them legally.

In New Jersey, Democratic attorney general Matthew Platkin's consumer-protection division sent a subpoena to First Choice Women’s Resource Centers for information, including about their donor.

First Choice pushed back, arguing the investigation was baseless and the demand for donor lists threatened their First Amendment rights. They tried to challenge the subpoena in federal court, but a judge found the case wasn’t yet far enough along. An appeals court agreed.

First Choice then turned to the Supreme Court, where a majority of the justices seemed to agree that they should be able to challenge the subpoena in federal court.

“You don't think it might have an affect on potential future donors to the organization, to know that their name, phone number, address, et cetera, could be disclosed?” a dubious Chief Justice John Roberts asked an attorney for New Jersey.

The state argued that the information would only have been used to ask donors whether they had been deceived about First Choice's services. An attorney for New Jersey, Sundeep Iyer, said free-speech rights aren't at risk because the group has not even been required to turn over any information yet. A court order is required to enforce it.

Conservatives on the court seemed skeptical, as did liberal justice Elena Kagan. “An ordinary person, one of the funders for this organization or any similar organization, presented with this subpoena ... is not going to take that as very reassuring,” Kagan said.

New Jersey also argued that a ruling in favor of First Choice could open the floodgates to similar lawsuits from any of the thousands of businesses that get similar subpoenas. “Federal courts would potentially be inundated,” Iyer said.

An attorney for the Trump administration, which weighed in to support First Choice, countered that any impact would be relatively small since the decision would only apply to groups with similar First Amendment arguments.

First Choice said access to federal court is important in cases where government investigators are accused of misusing state power. The American Civil Liberties Union supported the group, saying that subpoenas seeking donor information can scare away supporters even before they're enforced.

Erin Hawley, an attorney for the conservative Christian legal group Alliance Defending Freedom, said subpoenas can hurt advocacy groups with unpopular points of view. “It is a broad non-ideological issue that really does transcend ideological boundaries,” she said.

Aimee Huber, executive director of First Choice, said she hopes other states would “back off” any investigations of similar pregnancy centers if the court rules in their favor.

The Supreme Court is expected to decide the case in the coming months.