Weaponizing Government Against Pro-Lifers? Supreme Court Presses New Jersey

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The Supreme Court heard arguments this week on a case involving a state allegedly intimidating and harassing a pregnancy center for not conducting abortions.

The case pits First Choice women's resource centers against New Jersey's Democrat Attorney General Matt Platkin.

First Choice alleges that Platkin selectively targeted the Christian nonprofit based on its religious speech and pro-life views.

Platkin issued a wide-ranging and intrusive subpoena that requires the organization to hand over extensive records, including donor information.

And it does so without the AG actually providing any substantive evidence of wrongdoing.

The case could set precedent on states' ability to similarly target pregnancy centers and pro-life organizations.

In this episode, we sit down with one of the attorneys arguing on behalf of First Choice Alliance Defending Freedom General Counsel Aaron Hawley, who unpacks what's at the heart of the case and what we've learned from the response of the high court.

I'm Daily Wire executive editor John Bickley with Georgia Howe. This is a weekend edition of Moneywire.

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Portions of this interview aired earlier this week.

Joining us now to discuss is Aaron Hawley, general counsel at Alliance Defending Freedom, one of the attorneys arguing the case for First Choice, and who successfully argued to overturn Roe v.

Wade in 2022. Thanks for joining us.
So this case stems from New Jersey's Democrat Attorney General targeting pregnancy resource centers. That's the claim from your client, First Choice.

He created a strike force. He issued a consumer alert against them and then issued a subpoena to First Choice that was extremely intrusive.

That included asking for donor information going back 10 years. So we've just heard oral arguments before the Supreme Court.

By the line of questioning from the justices, do you have a sense of how they appear to be leaning? So I'll have to paraphrase an old boss of mine.

And after arguing, he would say, you know, I would rather be our side than their side. And I think that's definitely true after this oral argument.

If you think about some of the questions the justices were asking, Justice Barrett, for example, pointed out the hostility that New Jersey has shown toward pregnancy care centers.

You had this project strike on the pregnancy centers. You know, the Attorney General had essentially, you know, what your friends on the other side would say, declared war on pregnancy centers.

So if it is true that the non-self-executing subpoena is enough if it's in the context of other government statements, why wouldn't that be satisfied here?

Justice Jackson seemed very concerned about this idea that you never get into federal court.

Not only does it shut you out initially, but even once you go to state court because of various legal doctrines, you can never come back to federal court.

In cases like Whole Women's Health, for instance, this court noted that there may not always be available a federal forum for a federal constitutional claim challenging state.

So you're not saying they wouldn't be precluding you. You're just saying there are times when it's too bad.
Justice Kagan took a really practical view of the case.

She's not one that you would maybe expect to be ideologically aligned with First Choice. And yet she made the common sense point.

If I receive a subpoena that demands donor names, like, A, I don't want my name and address and phone number out there.

And so she was saying that this is going to chill the First Amendment rights of recipients in sort of a common sense way. And it seemed like a majority or certainly several members of the court were

really

understanding the effect the subpoena had both on First Choice Women's Resource Center as well as its donors. So that seems pretty promising for First Choice.

Were there any particularly surprising moments to you in the arguments, anything you weren't anticipating?

So one kind of highlight of the oral argument was the fact that the New Jersey Attorney General has never said that he received a single complaint against First Choice by anyone.

And so Justice Thomas really leaned into that and asked the New Jersey attorney. Did you have complaints that formed the basis of your concern about

the fundraising activities here?

We certainly had complaints about crisis pregnancy centers that petitioned. No, about this crisis pregnancy center.

So I think we've been clear from the outset that we haven't had complaints about this specific.

So you had no basis to think that they were deceiving any of their contributors.

So I would think that if there weren't complaints in advance, these kinds of severe actions by an attorney general would be overthrown.

Is there a precedent that would apply to these kinds of sort of unprompted subpoenas like New Jersey issued here?

So there is.

So there's a case called Americans for Prosperity, and this case protected the donor information of a California regime that required all charities to disclose their donors to the California Attorney General.

And the court in that case said, no, that's protected information under the First Amendment.

In addition, there are other cases that sort of talk about the overbreadth of the subpoena. You can't serve a subpoena for retaliatory reasons.

And here, if you don't have any reason at all, then that makes one think, you know, maybe it's because the Attorney General didn't like the viewpoint.

In addition, one of the interesting things about the argument here is the way the New Jersey Attorney General was presenting the case is that you never, as Justice Jackson picked up on, get into federal court.

And that's just contrary to how the federal courts treat federal rights.

Under a reconstruction statute known as Section 1983, when a state or local official allegedly violates your constitutional rights, you get to go to federal court.

So this would be that the Attorney General of New Jersey was really seeking to create an exception for subpoenas from ordinary rules that apply to other cases.

Okay, so the decision could have sort of an ancillary protection by highlighting this issue of harassment based on viewpoint discrimination. Is that what you're arguing?

Yes, and just the fact if the Supreme Court points out the harassment and shows that it is an element of considering whether there's an objective Jill,

I would expect that that would sort of back some of these attorney generals off the plate.

They're going to be more cautious before handing out subpoenas willy-nilly, asking for things like donor names.

Now, your team at ADF has been obviously defending a lot of clients that have experienced some sort of persecution for being Christians, for being pro-life.

Is this part of a larger pattern in terms of AGs, people in official positions of power in states figuring out ways to target specifically pro-lifers? You know, it does appear to be that.

In the state of California, the state of New Jersey, or sorry, New York, those attorney generals actually filed suit against pregnancy care centers trying to prohibit them from sharing information about progesterone that can be administered after you take the first abortion drug.

That decision, we actually got a decision from the Second Circuit finding that the New York Attorney General could not squelch that sort of speech, that she had to allow pregnancy centers to tell women about APR.

And so, that's just one example. I mentioned the state of Washington, but the Washington Attorney General also issued a sweeping subpoena to a pregnancy center demanding

10 years' worth of documentation on all sorts of things, also requesting requesting donor names. We finally were able to get that case settled.
The AG dropped that investigation.

But again, this takes a tremendous amount of resources on behalf of pregnancy care centers. And as someone has said, sometimes the process is part of the punishment.

The first choice litigation has been going on for two years. There have been over 50-something briefs filed in the case between the New Jersey Attorney General and us.

And that is a ton of burden on a nonprofit,

which seems to be part of the point. So Planned Parenthood has come up a couple of times in this discussion.
I wanted to ask you about them.

They were consulted by the AG to come up with this, as we've characterized it, a sort of harassment policy.

But we've also seen headlines that Planned Parenthood is closing up shop in some states, that they've suffered a lot of setbacks recently.

Do you feel like they're on the wane or are they still a major force to be dealt with?

So there's certainly a major political force that I think, you know, we need to shed light and truth, that every child matters, is inherently valuable to God and to society.

But I would urge your listeners, if they haven't, to look at the New York Times report. Really, it's an expose on Planned Parenthood.

It talks about the terrible conditions, not only for women who are coming for abortions,

bad healthcare, bad decision-making, but also for the employees, just an organization that is not well run. I can't say I'm surprised to learn those details.
A final question.

You say we saw some positive signs here for your case and the oral arguments. Do you feel in general that there's momentum on the side of pro-lifers in terms of constitutional and legal protections?

Or have we seen some setbacks in recent years?

I think we are seeing momentum building. If you think about the Supreme Court's term last year, there was a monumental win for parental rights in a case called Mahmood.

That case could have come out really narrowly, but instead the court really said that you need to have an opt-out school if you're going to teach things that are contrary to religious beliefs.

And so that was a great win for parents. We saw another win in an ADF case called Medina that states are allowed to defund Planned Parenthood.

They can choose other health care centers that provide actual health care instead of mainly abortion.

And then in this latest series of cases on APR, we have one in the Second Circuit, one in the Ninth. We just won the Second Circuit yesterday.

And so it seems to be the sort of recognition that even if you dislike pregnancy care centers, you can't harass them with subpoenas.

You can't sue them to stop them from speaking really basic constitutional rights.

But it seems to be taking courts to step in and police those boundaries. Erin Hawley, thank you so much for joining us.

Thanks for having me.

That was Alliance Defending Freedoms Aaron Hawley, and this has been a weekend edition of Morning Wire.

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