The justices wrestled with whether the pregnancy centers had encountered a concrete injury from the subpoena that would give them a legal basis to sue.
The Supreme Court seemed sympathetic on Dec. 2 to a pro-life pregnancy center group’s attempt to sue New Jersey for allegedly chilling its First Amendment rights through a subpoena.
The case focuses on a group of faith-based pregnancy centers known as First Choice Women’s Centers, which alleged that the state of New Jersey was chilling their rights to free association by requesting information about their donors.
The group sued under a law known as 42 U.S.C. Section 1983, which allows entities to sue governments over alleged violations of civil rights.
During oral argument, multiple justices asked questions that indicated they were skeptical that First Choice had suffered the kind of injury that would give it a legal basis for challenging New Jersey’s subpoena.
New Jersey Attorney General Matthew Platkin had argued that the subpoena itself was non-self-executing and therefore hadn’t yet inflicted any harm.
Both Chief Justice John Roberts and Justice Ketanji Brown Jackson suggested that more needed to happen in the lawsuit in order for them to challenge the subpoena in court.
Roberts, for example, suggested that First Choice would first need to face some kind of legal penalty.
Erin Hawley, an attorney with Alliance Defending Freedom and representing First Choice, argued that the subpoena was mandatory and its mere issuance chilled the organization’s rights.
Justice Clarence Thomas questioned what the subpoena had forced First Choice to do, but also said he had never heard of something like a subpoena request.
Sundeep Iyer, an attorney for New Jersey, told Thomas that the subpoena was different from a mere request in that it gave the state a predicate to go into court.
At one point, Justice Elena Kagan pressed Iyer on the nature of the subpoena and why it treated it as non-self-executing.
Wouldn’t they want their subpoenas to be self-executing? she asked.
In speaking with Hawley, Justice Amy Coney Barrett said she was sympathetic to the idea that the mere subpoena carried some kind of consequence for First Choice, but suggested she needed to give some weight to the idea that the subpoena was non-self-executing.
By Sam Dorman
