New Jersey’s AG Keeps Harassing Pro-Life Pregnancy Centers

Former New Jersey Attorney General Matthew Platkin used his office to harass and intimidate pregnancy care centers — now his successor is intent on doing the same. Platkin’s efforts culminated in a sweeping subpoena to First Choice Women’s Resource Centers, demanding (among other things) that First Choice disclose the names, addresses, and places of employment of its donors.

First Choice filed suit in federal court, but the lower federal courts held that First Choice must first litigate its First Amendment claims in state court. Last week, in First Choice Women’s Resource Centers v. Davenport, the Supreme Court unanimously held that First Choice was entitled to bring its First Amendment challenges in federal court.

Yet the day after losing 9-0, Attorney General Jennifer Davenport filed a letter in state court demanding that the court “proceed to resolve the enforceability” of her office’s subpoena. Never mind the Supreme Court’s clear holding that First Choice’s federal claims belong in federal court. (And never mind that the litigation stay her office agreed to is still in effect, because the Supreme Court’s mandate has not yet issued.) Incredibly, it seems even a unanimous reversal from the nation’s highest court is not going to slow down New Jersey’s campaign of harassment against pro-life pregnancy centers.

This is what First Amendment retaliation looks like.

The backstory matters. As one of his first official acts in office, Davenport’s predecessor, Platkin, created what he called the “Reproductive Rights Strike Force.” The Strike Force partnered with Planned Parenthood to issue a “consumer alert” warning New Jerseyans about groups like First Choice because they (heaven forbid) do not perform abortions. The attorney general then issued a sweeping subpoena to First Choice demanding up to 10 years of internal documents, including, most egregiously, donor names, addresses, and places of employment. The subpoena threatened the nonprofit with contempt and other serious penalties if it failed to comply.

What evidence of wrongdoing justified this extraordinary demand? None. As Justice Gorsuch’s unanimous opinion explained, New Jersey did not receive a single complaint about First Choice. The attorney general nevertheless insisted that he needed donor names so that his office could call up a “representative sample” to determine if they had been misled about First Choice’s mission. (Not that such a phone call from the state’s highest law enforcement office would be frightening in the slightest.) The Supreme Court’s opinion highlighted the absurdity of the attorney general’s donor deception theory: The solicitation materials the attorney general deemed potentially misleading featured “a donation webpage featuring pictures of parents holding infants and young children.”

Davenport’s latest salvo in state court only confirms that the real justification for her predecessor’s predatory subpoena was ideological. First Choice believes life begins at conception. It provides counseling, resources, and support to pregnant women. It does not provide abortions or refer clients for abortions. That viewpoint put it in the crosshairs of New Jersey.

Doubling down on her office’s campaign of harassment and retaliation, Attorney General Davenport’s letter downplays the Supreme Court’s ruling as merely procedural. A unanimous Supreme Court confirmed that First Choice did exactly what civil rights plaintiffs are supposed to do — file in federal court under 42 U.S.C. § 1983 to vindicate their federal constitutional rights. Yet the attorney general still accuses the organization of doing something improper in “sprint[ing] to the federal courthouse.” Even more remarkably, notwithstanding that her office’s state court action was filed after First Choice’s federal lawsuit, she blames First Choice for “creat[ing] duplicative litigation.”

The Supreme Court has already rejected that framing. Section 1983 exists, the unanimous court explained, precisely to ensure “a federal forum to citizens who claim that state actors have violated their constitutional rights.” That right belongs to pro-life pregnancy centers no less than to any other civil rights litigant.

The Supreme Court’s unanimous decision also clarifies the constitutional stakes. Drawing on a line of precedent extending back to NAACP v. Alabama — a case where the Supreme Court held unconstitutional efforts to resist integration by demanding the NAACP’s membership lists — the court explained that disclosure demands “inevitably” deter First Amendment rights. Without such rights, Justice Gorsuch wrote, “no two men could safely share the same soapbox, no two women the same church.”

Indeed, compelled disclosure doesn’t just burden the organization — it sends a message to every supporter that his identity is subject to government scrutiny. As the Supreme Court put it, it gives supporters a “very good reason to clam up” or “abandon the cause.”

That chilling effect is not a bug of the attorney general’s subpoena. It’s the feature. And it is why groups as ideologically diverse as the ACLU and the Conference of Catholic Bishops supported First Choice.

The case should now return to federal district court, where First Choice can finally litigate the merits of its First Amendment claims. Its case is strong. The attorney general had no complaints, no evidence, and no plausible justification for treating pictures of parents holding babies as evidence of fraud.

Her letter is just the latest evidence that New Jersey is motivated not by a desire to protect New Jerseyans but by a crusade to silence viewpoints with which it disagrees. And that’s unconstitutional.

Erin Hawley is chairwoman of Lex Politica’s Supreme Court and appellate litigation team, of counsel at Alliance Defending Freedom, a former law professor, and a former clerk to Chief Justice John G. Roberts Jr.