Supreme Court Weighs First Amendment Rights of Pregnancy Centers

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.