First Choice is a collection of five medically licensed centers that offer free medical services and material support to women facing unplanned pregnancies. First Choice is funded exclusively by private donors and provides all its services for free. Over the course of its 40 years of operations, First Choice has served over 36,000 women facing unplanned pregnancies.
In the wake of the Supreme Court’s decision in Dobbs, First Choice has faced increased harassment and targeting from both private and government actors. In the most recent of these incidents, the New Jersey Attorney General has issued a subpoena demanding First Choice release a list of all its private donors, to which First Choice refused to comply. The New Jersey Attorney General has a history of targeting pro-life services in the state, and First Choice is rightly concerned that they were targeted because of their pro-life position.
Under established case law, First Choice, and its donors, have a First Amendment right to anonymously associate with each other. In the 1958 case of NAACP v. Alabama, the Supreme Court ruled that private advocacy groups have the right to keep their membership lists private. First Choice has that same right here, but the Attorney General moved to compel production of the list anyway.
Concerned about state court bias, First Choice wants to make its First Amendment arguments in federal court. But First Choice is facing a unique legal challenge; the federal courts are refusing to take their case.
The Third Circuit will not hear First Choice’s First Amendment claim until the state court enforces the subpoena with criminal penalties. If First Choice’s officers do not want to face jail time for refusing a court order, they need to defend the subpoena before it is enforced. Because the federal courts will not hear their case until after the subpoena is enforced, First Choice must raise its First Amendment claims in state court. But once it does, a legal doctrine called res judicata prevents them from raising those arguments again in federal court.
The Third Circuit’s decision is strange; it creates a legal catch-22 that traps First Choice in a no-win situation. Its donors remain at risk, and its Constitutional rights hang in the balance. Even stranger, the Third Circuit is one of only a few circuits that follow this rule. Federal courts in the Ninth Circuit, for example, review state-issued subpoenas as a matter of course, they do not require that a plaintiff risk being thrown in jail before the court hears their case. First Choice believes that the Third Circuit’s refusal to hear their case is wrong and is now petitioning the Supreme Court for review.
Mountain States Legal Foundation has filed an amicus brief in support of First Choice’s request for Supreme Court review. The subpoena threatening First Choice’s liberty is unconstitutional and violates the First Amendment. An erroneous interpretation of procedural law has blocked First Choice from federal court review of the subpoena. The Supreme Court should correct this error.
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What’s at Stake?
This case raises an important question: Should Americans be forced to raise important constitutional claims in state court?
Where you bring a case is important. So important that Congress passed an amendment (the Fourteenth Amendment) and civil rights legislation to ensure that every American had some way to enforce their rights against state officials in a federal forum.
The Third Circuit’s decision sets a dangerous precedent. By creating a carve-out for state subpoenas, the Third Circuit is abdicating its responsibility to review claims that the most powerful lawyer in the state may be abusing his power.
All Americans, regardless of their political beliefs, should have the ability to challenge a government subpoena in federal court if it infringes upon their constitutional rights. A ruling against First Choice endangers donor privacy for advocacy groups across the political spectrum, undermining the free exchange of ideas and chilling participation in civil society. This case is about more than just one organization—it’s about ensuring that every American has the right to defend their constitutional freedoms in the courts that were designed to protect them.
Case Timeline:
- February 24, 2025: MSLF filed an amicus brief in support of First Choice Women’s Resource Center’s request for Supreme Court review.
- June 16, 2025: The Supreme Court granted cert.
- August 28, 2025: MSLF filed a second amicus brief in support of First Choice Women’s Resource Center.