US Supreme Court justices appeared largely open to allowing targets of state subpoenas to bring pre-enforcement challenges in federal court when they believe their First Amendment rights are being violated.
The New Jersey Attorney General’s Office at argument on Tuesday defended its subpoena seeking donor lists and other information from First Choice Women’s Resource Centers, a network of anti-abortion pregnancy centers, as part of an investigation into possible misleading medical claims. Chief Counsel Sundeep Iyer said federal courts shouldn’t be able to intervene until litigation at the state level is resolved.
Justices expressed concern that New Jersey’s position would effectively close the doors of the federal courthouse to litigants like First Choice who think their First Amendment rights are being chilled. The court also chided Iyer on a reversal in the state’s position on whether any consequences attach to the subpoena, which New Jersey now argues is not self-enforcing.
Erin Hawley, senior counsel at Alliance Defending Freedom, said her clients suffered several injuries from New Jersey’s subpoena, but the justices appeared disinclined to venture beyond First Amendment chill.
“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 these subpoenas will end up in federal court,” Justice Sonia Sotomayor said.
The US Solicitor General’s Office sided with First Choice, but took its own tack. The government said courts should instead look to see if there is a credible threat of enforcement. Assistant to the Solicitor General Vivek Suri said the justices could alternatively craft a test considering elements of both enforcement threat and First Amendment violations.
Iyer said subpoenas like the one issued to First Choice are used by state and local agencies thousands of times a year as part of routine investigations. He echoed Sotomayor’s concerns and warned a ruling in the pregnancy centers’ favor could open the floodgates to thousands of new lawsuits challenging state subpoenas in federal court.
The ACLU, more often an ADF opponent than ally, joined with other civil liberties groups to urge the court to side with First Choice, warning of the threat of hostile state investigators using similar subpoenas to target organizations over ideologies they dislike.
ACLU’s brief caught the notice of Justice Brett Kavanaugh, who credited their warning of “suppression by subpoena.”
“The broader common sense of the situation reflected in the ACLU’s brief, reflected in some of the questions would seem to say, you know, this is just kind of obvious that there’s some kind of objective chill from a subpoena on speech,” Kavanaugh said.
New Jersey’s investigation into First Choice is one of several launched by Democratic attorneys general into crisis pregnancy centers in recent years.
Federal courts have heard multiple challenges to those investigations. On Monday, the US Court of Appeals for the Second Circuit barred an enforcement action by New York’s attorney general over alleged false medical claims on First Amendment grounds.
The case is First Choice Women’s Resource Centers v. Platkin, U.S., No. 24-781, argued on 12/2/25.
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