SCOTUS revives pro-life nonprofit’s fight to protect donor lists

Summary

• Supreme Court unanimously finds pro-life nonprofit has Article III standing to challenge donor disclosure subpoena
• Case centers on First Amendment right of association and donor privacy protections
• Court says injury occurs when subpoena is issued, not only when enforced
• Decision reverses lower courts that dismissed case for lack of standing

A pro-life women’s health organization has standing under the First Amendment to challenge in federal court the constitutionality of a state attorney general’s subpoena demanding the disclosure of the identities of the nonprofit’s financial supporters, a unanimous U.S. Supreme Court has ruled.

The petitioner in the case, First Choice Women’s Resource Centers, Inc., is a religious nonprofit organization that provides counseling and resources to pregnant women in New Jersey. Founded on the belief that “life begins at conception,” the organization does not provide abortions or refer clients to others for abortions.

In 2022, New Jersey Attorney General Matthew Platkin established a “Reproductive Rights Strike Force” which in short order issued a consumer alert accusing organizations like First Choice of “provid[ing] false or misleading information about abortion.”

Citing authority under state consumer protection laws, Platkin in 2023 issued a subpoena demanding that First Choice disclose documents reflecting the names, phone numbers, addresses and places of employment of all individuals who had made donations to the organization by any means.

First Choice sued in federal court to block Platkin from enforcing the subpoena, arguing the AG’s document demand ran afoul of First Amendment protections for the right of association. Platkin, who was later succeeded as state attorney general by Jennifer Davenport, responded by suing First Choice in state court to enforce the subpoena.

A federal judge denied First Choice’s motion for a preliminary injunction and dismissed the nonprofit’s complaint. The judge first concluded First Choice lacked Article III standing, reasoning the organization had yet to suffer any injury in light of the fact the state court had not issued an order to enforce the subpoena. Further, the judge found the nonprofit’s claimed First Amendment injury was insufficient to confer standing.

A divided panel of the 3rd U.S. Circuit Court of Appeals affirmed, concluding First Choice failed to sufficiently show injury for the case to proceed. The dissenting judge submitted the case was justiciable since the AG’s issuance of the subpoena burdened First Choice’s ability to associate freely with its donors.

In reversing the lower courts, the U.S. Supreme Court held First Choice had established a present injury to its First Amendment associational rights sufficient to confer Article III standing.

Click here to read the full text of the Supreme Court’s April 29 decision in First Choice Women’s Resource Centers, Inc. v. Davenport.

• “The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely. Each of these rights, this Court has ‘“long understood,’” necessarily carries with it ‘“a corresponding right to associate with others. ‘” Without such a right, no two men could safely share the same soapbox, no two women the same church. The government could reduce any assembly to a party of one, and the right to petition would amount to nothing more than the power to sign one’s own name alone. Appreciating all this, we have held that government actions tending to ‘curtai[l] the freedom to associate’ warrant ‘the closest scrutiny’ under the First Amendment.…
  “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. And our cases have long recognized that demands for a charity’s private member or donor information have just that effect. They ‘“discourag[e]”’ 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. As we have put it, a demand for private donor information ‘inevitabl[y]’ deters the exercise of First Amendment rights, and can do so ‘as effectivel[y]’ as other ‘forms of governmental action’ might.”
  — Justice Neil M. Gorsuch, opinion of the court