Contrary to what the Supreme Court believed in both the Roe and Dobbs decisions, the question of abortion has not been settled in the United States. The case of First Choice v. Davenport shows just how far some states will go to oppose the pro-life movement.
A Pro-Life Resource Centers, an Activist Attorney General, And a Subpoena
While the Supreme Court stated that the Constitution of the United States is silent on the question of abortion, that has not stopped some state officials from promoting an abortion agenda. This incident starts with a pro-life resource centers, an activist Attorney General, and a subpoena.
NOTE: The case was filed against Matthew Platkin as Attorney General of New Jersey. By the time the decision was released, a new Attorney General, Jennifer Davenport was in office.
First Choice Women’s Resource Centers, Inc., is a religious nonprofit organization that has provided counseling and resources to pregnant women in New Jersey since 1985. … Believing that “life begins at conception,” and seeking “to protect and honor life in all stages of development,” the group does not provide abortions or refer clients to others for abortions.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
Seems simple enough. First Choice believes that life begins at conception, and therefore neither provides nor refers clients for abortions. This apparently annoyed then New Jersey Attorney General Matthew Platkin.
In 2022, New Jersey’s Attorney General, Matthew Platkin, established a “Reproductive Rights Strike Force.” … Shortly after its creation, the Strike Force issued a “consumer alert” in which it accused groups like First Choice of “seek[ing] to prevent people from accessing comprehensive reproductive health care” by “provid[ing] false or misleading information about abortion.” … The alert concluded by directing women to abortion providers and asking members of the public who believed they were “victim[s] of fraudulent, deceptive, misleading, or unlawful conduct” to “please file a complaint with the New Jersey Division of Consumer Affairs.” …
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
As I said, AG Platkin apparently does not like pro-life centers, and high on that list was First Choice. Why else would he not only put out a “consumer alert,” but go searching for complaints against them? Now, if the AG actually had some basis for this action, like a single complaint against First Choice, then the search for others would be justified. However, not only had the AG’s office not have a complaint against First Choice, their petition for complaints also came up empty.
Neither that division nor the Attorney General’s office received any complaints from the public about First Choice. … Even so, the Attorney General served a subpoena on the group in 2023. The subpoena stated that it had been issued pursuant to several New Jersey laws, including the State’s Consumer Fraud Act. … The subpoena “commanded” First Choice to produce various documents within 30 days and warned the group (twice) that “[f]ailure to comply with this Subpoena may render you liable for contempt of Court and such other penalties as are provided by law.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
Apparently, not having a single complaint against First Choice did not deter AG Platkin. His office issued a subpoena “commanding” First Choice to produce various documents, including the personally identifiable information about their donors, and threatening legal penalties if they did not comply.
In all, the Attorney General demanded production of 28 categories of documents (categories that themselves included as many as 29 subcategories). Most relevant for our purposes, the subpoena directed First Choice to disclose documents reflecting the names, phone numbers, addresses, and places of employment of all individuals who had made “donations . . . to First Choice by any means other than through” one specific webpage. … Effectively, that demand required First Choice to provide personal information about donors who gave through two other websites, through the group’s various social media pages, by mail, in person, or by any other means. … The subpoena sought documents about donations received over the span of multiple years—beginning “from January 1, 2021” and extending “to the date of [First Choice’s] response.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
Interesting. Without a single complaint, even after asking members of the public to come forward, AG Platkin is still searching for a crime. In law enforcement this is called “Fishing for a crime,” or just “Fishing.”
Though the subpoena did not explain why the Attorney General sought First Choice’s donor records, Mr. Platkin later represented that his office hoped to “contact a representative sample [of donors to] determine” if they had “been misled” by First Choice about its “mission and operations.” … In his view, First Choice’s solicitation materials—including a donation webpage featuring pictures of parents holding infants and young children, ..— could mislead donors into thinking First Choice provides abortions, …
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
A webpage featuring pictures of parents holding infants and young children could mislead donors into thinking First Choice provides abortions? That’s just plain stupid. Because I think most people, when they see pictures of parents holding infants and young children, they don’t think “abortion”; they’re more likely to think pro-life. To me, this doesn’t sound like fishing, but an outright vendetta against First Choice.
First Amendment
First Choice responded to this outright attack on them with a federal lawsuit.
Two days before the deadline to produce documents, First Choice filed suit in federal district court seeking to prevent the Attorney General from enforcing his document demands. … Shortly after that, the Attorney General responded with his own suit in state court. There, he accused First Choice of violating state law by failing to comply with his subpoena. … Between the two suits, much litigation followed.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
First Choice sues, in federal court, claiming the subpoena infringes on their rights, and the Attorney General sues, in state court, because First Choice didn’t comply with the subpoena. Who has the better case?
A federal law—42 U. S. C. §1983—authorizes suits against any person who, under color of state law, deprives another of his federal constitutional rights. First Choice filed a complaint under that statute, arguing, among other things, that the Attorney General’s demand for information about its donors violated its First Amendment rights. …
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
While I agree that First Choice does have a case under §1983, it’s not a First Amendment case. Why? Because the first five words of the First Amendment are:
Congress shall make no law…
U.S. Constitution, Amendment I
AG Platkin was not acting under the authority of a law passed by Congress, so his actions cannot violate the First Amendment. What they do is violate the Fourth Amendment, because it is an unreasonable search and seizure of documents.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
U.S. Constitution, Amendment IV
To me, this is not only a more straightforward argument, but on a better constitutional footing.
Specifically, First Choice observed that the First Amendment “prohibits the government from discouraging people from associating with others” “in pursuit of many political, social, economic, educational, religious, and cultural ends.” … And, First Choice alleged, the Attorney General’s subpoena had just that impermissible effect. … For its donors, the group represented, “anonymity is of paramount importance,” and its inability to guarantee that anonymity in the face of the Attorney General’s demands injured the group by discouraging donors from associating with it. …
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
That’s a pretty good argument, but not for the First Amendment. That arguments shows a violation of Article I, Section 18 of the New Jersey Constitution:
The people have the right freely to assemble together,
New Jersey Constitution, Article I, Section 18
First Choice did more than just file the lawsuit.
In addition to its complaint, First Choice filed a motion seeking a preliminary injunction prohibiting the Attorney General from enforcing his subpoena. In support of its motion, First Choice tendered two declarations. In one, anonymous donors represented that, if they “had known information about the[ir] donation[s] might be disclosed to an official hostile to pro-life organizations,” “[e]ach of [them] would have been less likely to donate to First Choice.” … The donors added that they submitted their declaration anonymously because they believed they might face retribution otherwise “given [the Attorney General’s] record of hostility toward pro-life groups.” … In the second declaration, the group’s executive director similarly represented that the Attorney General’s request threatened to “weaken [First Choice’s] ability to recruit new donors . . . as prospective partners would be hesitant to risk the revelation of their personal information through government investigation.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
So at least some donors would have been less likely to donate if they knew their information would be passed on to the AG’s office, based on his record of hostility to pro-life organizations. Again a good argument, but for a violation of the New Jersey Constitution, not the First Amendment to the United States Constitution.
Not the First Time
This is not the first time the court has encountered this type of situation.
Our most recent encounter with a demand for donor information came five years ago in AFP. There, California Attorney General Rob Bonta sent “deficiency letters” to the Americans for Prosperity Foundation and the Thomas More Law Center—the first, a charity “‘devoted to education and training about . . . constitutionally limited government’”; the second, “a public interest law firm whose ‘mission is to protect religious freedom, . . . family values, and the sanctity of human life.’” .. In his letters, Mr. Bonta sought the names and addresses of anyone who donated more than $5,000 in a single year to either group. … When the organizations protested that they kept donor information private “[o]ut of concern for their donors’ anonymity,” the Attorney General responded by threatening fines and the suspension of each organization’s status as a tax-exempt charity. …
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
So California Attorney General Rob Bonta had already tried a similar tactic? It didn’t work then, and it doesn’t work now. The question in this case though, is different than the AFP case Justice Gorsuch referred to in this opinion. The First Choice case is about whether or not they could sue in federal court.
Given the absence of any state court order compelling production, the district court reasoned, First Choice had yet to suffer any injury from the subpoena and thus lacked Article III standing to challenge it in federal court.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
As I covered in my article Unreasonable Searches, where I reviewed the oral arguments in this case, Attorney General Platkin’s argument that even though the subpoena “compels” the production of documents under threat of penalties, until a court orders compliance, First Choice was under no obligation to actually produce those documents. This is another ridiculous claim, but that was the basis of the district court’s claim that First Choice didn’t have standing to sue.
Injury in Fact
The case before the court was not on the merits of First Choice’s case or the actions of the Attorney General. Rather, it was a question of whether or not First Choice could legally sue at all.
This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
To have standing in a federal lawsuit, the plaintiff must have an injury in fact. The court seemed to agree that First Choice has, in fact, suffered an injury, just of the wrong rights.
Against this backdrop, the question before us all but answers itself. First Choice has established a present injury to its First Amendment associational rights.
Start with the Attorney General’s subpoena. It told First Choice: “You are hereby commanded to produce” a variety of documents, including ones “sufficient to Identify donations made to First Choice by any means other than through” one webpage. … The subpoena defined the term “Identify” as requiring First Choice to provide each donor’s “(a) full name; (b) present or last known address; (c) phone number; [and] (d) present or last known place of employment.” … Twice, the subpoena warned First Choice that “[f]ailure to comply with this Subpoena may render you liable for contempt of Court and such other penalties as are provided by law.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
Having received a federal subpoena myself, I am fully aware of the “command” they claim to place on a person or organization. Again, this was not a First Amendment violation, since it involved no law created by Congress, but an unreasonable search and seizure. The Attorney General’s office was demanding detailed donor documentation without any probable cause other than his apparent animosity against pro-life causes. That’s not to say the AG didn’t claim that First Choice suffered no injury, but that didn’t convince the court.
(b) The Attorney General’s three reasons why First Choice has not suffered any injury sufficient to maintain this lawsuit each fails.
(1) It does not matter that subpoenas issued by the Attorney General are purportedly “non-self-executing” such that any legal duty to produce records arises only when a state court agrees to enforce the subpoena. Whether the subpoena’s demands and penalties were immediately enforceable or contingent on future court action, donors would reasonably fear disclosure and hesitate to associate, and a reasonable recipient of the Attorney General’s subpoena would be induced to trim its protected advocacy knowing it now stands in the government’s crosshairs. This Court’s precedents do not impose—and in fact foreclose—a rule that would nonetheless require First Choice to await a state court order enforcing the subpoena before the group could challenge the Attorney General’s demands in federal court.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
This to me is the greatest failure and abuse of subpoenas. It deprives people of their liberty and/or property without due process of law. It’s one thing to compel attendance or the production of evidence in a court case, but to abuse subpoenas for investigative purposes is a flagrant violation of the Fourth Amendment.
(2) It is of no moment that the subpoena allows First Choice to solicit funds through one specific website without disclosing the identities of those who donate through it. By restricting how First Choice may interact privately with its donors, the Attorney General’s subpoena burdened First Choice’s associational rights. Were the rule otherwise, the government could channel the ability of disfavored groups to associate through narrow and state-preferred forms and achieve exactly what the First Amendment forbids.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
I think this claim of a burden on associational rights is rather weak. Instead, what the court describes is an unreasonable search and seizure, along with a deprivation of the liberty to interact privately with their donors when there is no probable cause of a crime.
(3) It makes no difference that a state court may soon, and with the Attorney General’s assent, issue a protective order requiring the Attorney General to keep confidential any documents First Choice produces pursuant to the subpoena. Putting aside the uncertainties about any prospective protective order, demands for private donor information burden First Amendment rights “[e]ven if there [is] no disclosure to the general public.” … An official demand for private donor information is enough to discourage reasonable individuals from associating with a group and to discourage groups from expressing dissident views. So long as the demand remains outstanding, “the pressure” to avoid ties and speech that “might displease” officials demanding disclosure can “be constant and heavy.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
Again, a weak argument. It also ignores the fact that AG Platkin was searching for evidence of a crime he had no probable cause actually happened. That makes this search unreasonable. And by demanding the production of documents, an unreasonable seizure as well.
Finally, consider First Choice’s two unrebutted declarations. In the first, several donors represented that “[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed” to the Attorney General. … The donors added that they submitted their declaration anonymously because they feared what they called the Attorney General’s “record of hostility toward pro-life groups.” …
All this is more than enough to establish injury in fact under our precedents.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
This to me shows probable cause that Attorney General Platkin was not attempting to enforce New Jersey law, but using his position to enforce a vendetta against not just First Choice, but all pro-life organizations in New Jersey.
Take each argument in turn, starting with the Attorney General’s most ambitious submission. He says that subpoenas issued by his office are “non-self-executing.” … Translated, that means they “impose no obligations of their own.” … Instead, any legal duty to produce records arises only when a court agrees to enforce the subpoena. Categorically, he says, this means a recipient of a non-self-executing subpoena like the one he issued to First Choice suffers no injury unless and until a court enforces it.
This conclusion does not follow from its premises. … It “commanded” First Choice to produce private donor information. … And it warned that failure to comply “may render [the group] liable for contempt of Court” or “other penalties.”
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
The Attorney General’s argument not only does not follow the premise, it does not follow logic, reason, or the English language. An order to compel with the threat of legal penalties is either a real threat or a false threat in attempt at intimidation and extort. Neither is good for the Attorney General of New Jersey.
Conclusion
The first thing we need to remember is that this case is not about the merits of First Choices case, only whether or not the case can proceed. Has First Choice been harmed by the threat, I would say an illegal threat, made by the New Jersey Attorney General’s office?
Since the 1950s, this Court has confronted one official demand after another like the Attorney General’s. Over and again, we have held those demands burden the exercise of First Amendment rights. Disputing none of these precedents but seeking ways around them, the Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds. Accordingly, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
First Choice Women’s Resource Centers, Inc., Petitioner, v. Davenport, Attorney General Of New Jersey
I would say the demands made by the Attorney General of New Jersey cannot burden the First Amendment, but they do burden the Fourth and Fifth Amendments. If the Attorney General had probable cause, supported by oath or affirmation, he could have easily gotten a warrant to seize and search those records. He did not seek a warrant, I believe because he had no probable cause. That makes the subpoena an illegal attempt to seize documents for an unreasonable search, depriving First Choice, the people who work there, and those who donate, of their right to be secure from such searches. It also deprives both First Choice and their donors the liberty to interact without unfounded threats of government enforcement.
I’m not sure how the Third Circuit will look at this case. From what I’ve seen so far, not only should First Choice receive their injunction against the Attorney General, I would like to see Mr. Platkin’s actions referred to the Department of Justice for criminal investigation. After all, he willfully subjected First Choice, their employees, volunteers, and donors, to a deprivation of their rights protected by the Constitution of the United States under color of law. Referring back to the oral arguments I covered in Unreasonable Searches, this was not a mistake or a misunderstanding. I believe there is evidence of Mr. Platkin’s true animus against First Choice and a deprivation of their rights, and no reasonable judge could allow qualified immunity for such a gross violation of the supreme law of the land.
