WASHINGTON (CN) - The Supreme Court appeared convinced Tuesday that New Jersey's request for a list of donors to a crisis pregnancy center had a chilling effect worthy of federal court review. 

During over an hour of oral arguments, the justices were broadly critical of the state attorney general's attempt to thwart First Choice Women's Resource Centers' federal lawsuit, seemingly skeptical of New Jersey's claims that its subpoena request was lacking.

"An ordinary person - one of the funders for this organization or for any similar organization - presented with this 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," Justice Elena Kagan, a Barack Obama appointee, said. 

Justice Brett Kavanaugh, a Donald Trump appointee, said it was "just kind of obvious" that an information request from state officials would result in an objective chill. 

Unlike grand jury or court-ordered subpoenas, the New Jersey attorney general issued an administrative subpoena to First Choice in 2023 as part of an investigation into deceptive or unlawful conduct. The state suspected First Choice, which operates faith-based pregnancy centers, misled potential donors and clients into believing that it was providing reproductive health care like abortion services. 

New Jersey says administrative subpoenas are not self-executing, meaning that they do not take effect without a state court order. However, before a New Jersey court could issue such an order requiring First Choice to disclose its donor information, the center sued the state in federal court. 

The complex procedural issue before the Supreme Court on Tuesday was whether First Choice's case could proceed in federal court before the administrative subpoena had been reviewed by the state court. 

First Choice appeared to come out on top. Even if the administrative subpoena wasn't self-executing, the justices seemed to think it sufficiently chilled First Choice's First Amendment rights to warrant a federal lawsuit. 

Erin Hawley, an attorney with the Alliance for Defending Freedom and arguing for First Choice, said the subpoena was driven by the New Jersey attorney general's hostility to the group and its mission. Hawley, whose husband Missouri Senator Josh Hawley attended Tuesday's proceedings, argued the First Amendment threat discouraged donors from supporting the faith-based nonprofit. 

"This is the context of a hostile attorney general who has issued a consumer alert, urged New Jerseyans to beware of pregnancy centers, and assembled a strike force against them," Hawley said. 

The justices seemed in narrow agreement over the subpoena's chilling effect. 

"Do you think there is a credible chilling effect from the state seeking full names, phone numbers, addresses, present or last known place of employment, of every one of their donors who gave through any means other than the one specific website?" Chief Justice John Roberts asked incredulously.

Hawley's broad arguments were less popular. Justice Amy Coney Barrett, a Donald Trump appointee, was skeptical that the subpoena alone chilled speech. 

"I'm sympathetic to the argument that the subpoena on its face looked like it carried penalties based on everything that you said, but I think we have to accept for purposes of this case that it's non-self-executing and so that it did not, in fact, at the moment of receipt demand that you reply on pain of contempt," Barrett said. 

Barrett latched on to a caveat from New Jersey, suggesting that the state's cumulative actions targeting crisis pregnancy centers created a chill even without a self-executing subpoena. 

Facing an uphill battle, Sundeep Iyer, chief counsel to New Jersey's attorney general, warned the high court against opening the floodgates to allow all administrative subpoenas to be challenged in federal court. Similar subpoenas are issued by other states, local officials and the federal government. 

"Just to put this in perspective, the single state agency that is before this court today from a single state has issued more than 500 subpoenas this year alone to all kinds of businesses...who we have reason to believe could be violating the law and so we want more  information," Iyer said. "Google, in its public disclosures, the single company, said in 2024 it alone received 50,000 subpoenas across the entire United States. You're talking about a huge volume of potential federal constitutional claims." 

Following the proceedings, Georgetown law professor Stephanie Barclay said the argument revealed the justices' concerns about the real threats state investigatory subpoenas can pose to First Amendment freedoms. 

"Throughout the argument, multiple justices expressed concern that the credible threat of compelled disclosure of donor identities - backed by the specter of enforcement - creates precisely the kind of chill on associational freedoms that NAACP v. Alabama was designed to prevent," Barclay said, citing the landmark 1958 case that shot down Alabama's attempt to prevent the NAACP from operating in the state. 

Source: Courthouse News Service