A Unanimous Supreme Court First Amendment Victory for Crisis Pregnancy Centers — but Not Only a Win for Pro-Lifers

The Supreme Court this morning decided First Choice Women’s Resource Centers v. Platkin, a case at the hot-button intersection of abortion, free speech, lawfare, and standing to sue. Yet, perhaps surprisingly, the win for pro-lifers was unanimous. Justice Neil Gorsuch’s opinion illustrates the Court’s consensus on free speech issues in general and government abuses of investigative authority to chill speech in particular.

A truly “pro-choice” movement would be equally comfortable with women choosing life as with the choice of abortion. That approach, however, has been increasingly overtaken among Democrats by a militant preference for abortion. Blue-state prosecutors, if anything even moreso since Dobbs, have made an industry out of harassing lawfare aimed at crisis pregnancy centers that offer alternatives to abortion. Their pretext is to claim that it is misleading to not give equal billing to abortion — as if Planned Parenthood is equally supportive to choosing life. The process-is-the-punishment approach has accelerated since 2018, when the Supreme Court struck down a California law requiring crisis pregnancy centers to post pro-abortion government notices (a precedent the Court already leaned on this term in Chiles v. Salazar).

Platkin arose from the question of whether a crisis pregnancy center can go to federal court to block a harassing subpoena by New Jersey’s attorney general looking into its donors. The procedural narrowness of the legal question is perhaps deceptive: The real issue is how much blue states can squeeze these small nonprofits before they can invoke their First Amendment rights. At argument, New Jersey’s lawyer admitted to Justice Clarence Thomas that the state went after the center without a single complaint about its behavior. Chief Justice John Roberts asked, “You don’t think it might have a [credible chilling] effect on future potential donors to the organization to know that their name, phone number, address, [or present or last known place of employment] could be disclosed as a result of the subpoena?” New Jersey’s pretense to the contrary, the answer was obvious, and is the point of these investigations.

In a time when the Trump administration seems determined to pay back lawfare in kind, the procedural question — whether and when the target of this sort of investigative harassment can go to court to stop it — no longer seems to be only a conservative concern. Hence, perhaps, the Court’s unanimity in ruling that the crisis pregnancy centers had a sufficiently concrete injury to show standing to sue. The Court didn’t even reach the question of whether enforcement of the subpoena would harm First Choice, ruling that injury had been shown simply by the fact that the subpoena would deter donors from associating with the center. That follows the Court’s 2021 decision in Americans for Prosperity Foundation v. Bonta, which held that the First Amendment bars California’s attorney general from demanding that every nonprofit that raises money in the state disclose its donors to the AG or face being banned from soliciting California donors. As Gorsuch wrote today:

An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff ’s constitutional rights. . . . Our cases have long recognized that demands for a charity’s private member or donor information have just that effect. They discourage people from associating with groups engaged in protected First Amendment advocacy. . . . They also encourage groups and individuals to cease or modify protected First Amendment advocacy the government disfavors. All this occurs not just when a demand is enforced, but when it is made and for as long as it remains outstanding. . . .

An official demand for private donor information is enough to discourage reasonable individuals from associating with a group. It is enough to discourage groups from expressing dissident views. A government that chooses to make private donor information public may make the damage worse. [Emphasis added; quotations and citations omitted.]

Responding to the New Jersey AG’s argument that the investigation didn’t really harm First Choice because it didn’t seek to foreclose all of its methods for raising money, Gorsuch channeled Monty Python’s Black Knight:

A government that takes three limbs but spares the last imposes an injury all the same. So too here. The question before us isn’t how badly the Attorney General has burdened First Choice’s associational rights; the question is whether he has burdened those rights at all. . . . Were the rule otherwise, the government could channel the ability of disfavored groups to associate through narrow and state-preferred forms. In doing so, it could achieve exactly what the First Amendment forbids, marginalizing dissident voices and reshaping the marketplace of ideas to its pleasure, all while evading any legal challenge to its actions.