The Alliance Defending Freedom and the ACLU, frequently at odds, have joined together in urging the Supreme Court to allow pre-enforcement review of state subpoenas that may chill speech.
ADF, a Christian legal group, says New Jersey’s demand for donor information and other records from a network of faith-based, anti-abortion pregnancy centers suppresses their speech and discourages potential supporters. A federal judge should be able to review First Choice Women’s Resource Centers’ claims even though the subpoena hasn’t been enforced and litigation is still pending in state court, ADF said.
A broad ideological mix of amici agrees — including the ACLU, a frequent ADF opponent at the high court.
ADF senior counsel Erin Hawley, who will argue the case before the justices Tuesday, said civil liberties groups see the threat of hostile state officials using subpoenas to target viewpoints they oppose. Having the ACLU as an amicus, she said, sends a signal to the justices.
“In this case, I think they’re very valuable because they point out the broad breadth of agreement on the issue,” Hawley said.
The groups occasionally land on the same side, including when the ACLU backed ADF in a 2020 fight over campus free-speech zones. But they’re far more often adversaries.
They filed dueling amicus briefs last term in Mahmoud v. Taylor over religious opt-outs for LGBTQ-inclusive books in public schools, and they’ll square off again in January in a case testing bans on transgender athletes in girls’ and women’s sports teams.
Cecillia Wang, ACLU’s national legal director, said the group has great concerns about crisis pregnancy centers such as First Choice but weighed in to protect free speech. Such “strange bedfellows” briefs, she said, can be a powerful tool to persuade the court.
“It just goes to show how important these issues are in terms of reaching across the ideological spectrum and joining forces,” Wang said.
The Foundation for Individual Rights and Expression and the ACLU of New Jersey also joined the brief.
New Jersey Solicitor General Jeremy Feigenbaum’s office is defending Attorney General Matthew Platkin (D), who says his office is probing whether First Choice misled donors or clients about its medical services.
Nearly two dozen states and the Federation of State Medical Boards urge the justices to uphold the US Court of Appeals for the Third Circuit, saying First Choice’s federal claim is premature.
Their amicus brief calls non-self-executing subpoenas such as New Jersey’s the “workhorses” of civil investigations, with no penalties until a court enforces them.
Targeting Reversal
The New Jersey attorney general’s investigation is one of several launched by Democratic state officials into crisis pregnancy centers. The probes largely center on controversial claims about abortion pill reversal, which have flourished since the Supreme Court’s 2022 decision overturning Roe v. Wade.
First Choice is a “leading organization nationally in the administration of Abortion Pill Reversal,” according to its brief. The organization’s protocol involves the use of progesterone to counter the effects of mifepristone, the first of two pills taken in a medical abortion.
Critics of the procedure say there is little scientific evidence to back up First Choice’s claims. The American College of Obstetricians and Gynecologists calls abortion pill reversal “unproven and unethical.” Platkin told the court his office is examining whether First Choice’s statements violate the state Consumer Fraud Act or other laws.
Colorado moved to bar clinics from offering abortion pill reversals in 2023, but a federal judge permanently blocked the law in August, finding it violated faith-based groups’ religious freedom.
At least two other federal appeals courts are weighing abortion pill reversal challenges. A panel of the US Court of Appeals for the Ninth Circuit heard arguments last month in a California case alleging ads for the procedure violate state consumer protection laws.
The US Court of Appeals for the Second Circuit in June took up a similar fight over New York Attorney General Letitia James’s (D) enforcement action against anti-abortion pregnancy centers.
The case is First Choice Women’s Resource Centers v. Platkin, U.S., No. 24-781.
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