Catch-22? New Jersey probe of pro-life pregnancy centers draws skepticism from appeals court

As they regain the mantle of resistance against an incoming Republican administration and red states restricting abortions in the absence of federal protections, Democratic attorneys general are pushing the boundaries of deterrence for abortion alternatives in their states.

A New Jersey network of pro-life pregnancy centers begged the 3rd U.S. Circuit Court of Appeals to stop AG Matthew Platkin from allegedly intimidating donors, and dissuading future donations, by trying to unmask them – the subject of a major 1958 Supreme Court ruling for the NAACP – amid a shape-shifting consumer fraud probe.

The expedited hearing Dec. 10 followed U.S. District Judge Matthew Shipp's ruling that rejected First Choice Women's Resource Centers' motions to block Platkin's demands but also tossed its entire lawsuit – without Platkin asking, for a second time – because it "has yet to suffer any actual or imminent harm" from the subpoena in Essex County Superior Court.

Shipp's first dismissal in January sent First Choice scrambling to the Supreme Court to force the President Obama nominee to reinstate the suit and "timely decide" its motions for a temporary restraining order and preliminary injunction, arguing he ignored four of five appeals courts by finding it must wait for enforcement in state court for federal jurisdiction to be "ripe."

First Choioce put the request in the context of more than 150 crimes against pro-life individuals and entities from the May 2022 leak of the Supreme Court's Dobbs decision ending federal abortion rights to the end of that year, showing the real threat to pro-lifers from exposure.

Assistant Attorney General Jeremy Feigenbaum got an especially hard time from Judge Stephanos Bibas, nominated by President Trump. 

"How much later are they supposed to wait without getting into the preclusion trap?" Bibas asked, referring to how threatened First Choice must be to bring its federal constitutional challenge to the subpoena before state judge Lisa Adubato issues her long-delayed final judgment, which would preclude federal jurisdiction.

SCOTUS eliminated that Catch-22 for property owners who were blocked from challenging government takings in federal court in a 2019 precedent.

Judge Cindy Chung, nominated by President Biden, also pressed Feigenbaum on why showing that Platkin's ally Planned Parenthood isn't "similarly situated" to First Choice, and thus cannot show selective prosecution, makes the case unripe in federal court.

First Choice says the AG participated in events by Planned Parenthood's state campaign arm, consulted it on the wording for his "consumer alert" against pro-life centers and ignored its alleged misinformation on chemical abortion.

Several of Platkin's peers have targeted pro-life centers for allegedly misleading pregnant women about their services and by promoting so-called abortion pill reversal, or taking supplemental progesterone, a pregnancy hormone, to counteract mifepristone.

A New York judge stopped AG Letitia James from muzzling centers on the reversal protocol, which a top Yale reproductive researcher says "makes biological sense," while Washington AG and Governor-elect Bob Ferguson backed down after a center showed a court that it lost insurance and had to pay much more to get it back due to Ferguson's probe.

Alliance Defending Freedom Senior Counsel Lincoln Wilson, representing First Choice, repeatedly corrected the 3rd Circuit judges on the factual record.

The center has produced various documents "under protest" for a year, and exclusion from federal court puts "our backs against the wall" in proposed negotiations to narrow the subpoena, which the AG only accepted after the 3rd Circuit approved expedited briefing, he said. This is "classic chilling" of constitutionally protected expression.

Platkin hasn't withdrawn any demand for penalties against First Choice for noncompliance and New Jersey law "makes penalties and sanctions available for failure to obey a subpoena," Wilson said. "It's his threat that ripens the case."

The AG also waited until Dec. 9, a week after rebuke from Adubato, to agree to confer with First Choice on narrowing his demands, Wilson said. "Every time the case gets to federal court the attorney general offers some reason not to decide it now."

Platkin's office insists it just wants identities of a "subset" of donors – for now – on suspicion First Choice misled them about its services, urging the 3rd Circuit against intervening again in an already confusing mishmash of state and federal litigation.

Feigenbaum asserted Platkin's subpoena was "non-self-executing" and hence cannot harm First Choice until it violates a court order and still refuses to turn over documents, questioning the chain's understanding of state law.

He referred to the 9th Circuit's 2022 ruling against Twitter's First Amendment challenge to a subpoena by Texas AG Ken Paxton, related to the social network's then-permanent ban on former President Trump, that was also not "self-enforcing."

Feigenbaum accused First Choice of trying to "have your cake and eat it too" by telling Judge Adubato she cannot force it to fully comply with the subpoena until she issues a final ruling, but then asking the 3rd Circuit to stop preclusion.

Judges Bibas, Chung and Jane Richards Roth, nominated by George H.W. Bush, weren't thrilled to hear the case again after remanding it to Shipp this spring.

The parties agreed First Choice's constitutional claims were ripe after Adubato refused to quash Platkin's subpoena, and "now you're changing your tune," Bibas told Feigenbaum.

He wasn't mollified by Feigenbaum's explanation that "we genuinely believed" Adubato had ordered First Choice to comply with Platkin's demands but that she clarified in September First Choice only must lay out its full objections to the subpoena.

"If I were on their side this would feel like a moving target," Bibas said, referring to Platkin's refusal to rule out further demands while Feigenbaum insists they only want to know who donated through two other websites, not First Choice's own donation page.

"It seems odd not to take the subpoena at face value here where you haven't unequivocally taken these things off the table," Bibas said.

Feigenbaum assured the judges that donations through First Choice's own website aren't suspect because it discloses its services to the AG's satisfaction, so they aren't chilled. Bibas questioned if the public reads "very carefully what the scope of the subpoena is and isn't."

Judge Roth castigated both sides for not conferring together on what is "producible" to narrow the litigation to "exactly what the problem is," as Adubato had ordered them. 

"I don't care who's at fault" in what Feigenbaum called the "breakdown," Roth said. "It's ridiculous to challenge it [the subpoena] in its entirety," she told Wilson.