Conservative Supreme Court Justice Clarence Thomas got a lawyer for the New Jersey Attorney General’s Office to admit Tuesday it mounted a “fishing expedition” against a pro-life organization without receiving specific complaints about the group.
Thomas drilled down on the investigation of First Choice Women’s Resource Centers during oral arguments in a case challenging a subpoena the organization received from AG Matthew Platkin’s office.
“You had no basis to think that they were deceiving any of their contributors?” Thomas asked Chief Counsel Sundeep Iyer.
“We certainly had complaints about crisis pregnancy centers,” Iyer deflected before admitting none specifically applied to First Choice, a faith-based nonprofit with five facilities across the Garden State that discourages women from terminating their pregnancies.
“We had no complaints,” Iyer said. “But state governments, [the] federal government, initiate investigations all the time in the absence of complaints where they have a reason to suspect that there could be potential issues of legal compliance.”
“I think we had a more than ample basis to initiate this,” he added, citing concerns about misleading donors, unlicensed medical practices, violation of patient privacy, and “potentially misleading or untrue medical statements.”
“Well, that just seems a burdensome way to find out whether someone has a confusing website,” jabbed Thomas.
The 2023 subpoena from Platkin’s office requested that First Choice turn over names of its donors to investigators, alleging that the organization could be defrauding them.
First Choice sued, arguing the subpoena chilled its First Amendment rights.
Platkin’s team countered that First Choice was not yet required to turn over the donor names, but most of the justices were skeptical of the argument against letting the crisis center’s challenge continue.
“You don’t think it might have an effect on future potential donors to the organization to know that their name, phone number, address, etc, could be disclosed as a result of the subpoena?” Chief Justice John Roberts pressed Iyer at one point.
Iyer insisted it wouldn’t and claimed that the closest First Choice got to proving otherwise was a donor declaration that they would have been less “likely to donate … if we had known information about the donation might be disclosed,” which the AG’s office called a “backwards-looking statement.”
“Really? I mean, we’re going to now pick over the tense of the verb that they chose?” exclaimed conservative Justice Neil Gorsuch at Iyer’s rationale.
First Choice attorney Erin Hawley underscored in her argument how potential small donors might be nervous about a subpoena and argued there was nothing misleading about the group’s website.
“If you look at the allegations in this case, some donors gave as little as $10,” she said. “Those folks are going to be worried about a state attorney general getting their names, phone numbers, addresses, places of employment, so that he can contact them about a donor website.”
“I think there is some confusion in the nomenclature here,” Iyer stressed in his argument. “Typically, when we think about subpoenas, we’re thinking about grand jury subpoenas.
“An administrative subpoena is very different, and courts, as a matter of state law, have held across the country that the subpoenas themselves don’t impose any obligation to produce documents.”
Hawley countered that any kind of subpoena could still have a chilling effect.
“That’s not what the face of the subpoena says,” she said of Iyer’s insistence that the document was a voluntary request. “It says command or else we’ll possibly go after your business license, or you’ll wind up [being charged] with contempt.
“Those are the death knell for nonprofits like First Choice.”
Even liberal Justice Elena Kagan seemed sympathetic to that concern.
“An ordinary person, one of the funders for this organization or for any similar organization, [who is] presented with the subpoena and then told, ‘But don’t worry, it has to be stamped by a court,’ is not going to take that as very reassuring,” she said.
A decision in First Choice Women’s Resource Centers, Inc. v. Platkin is expected by the end of June.
