Key Takeaways:

• The Supreme Court heard oral arguments in First Choice Women’s Resource Centers v. Platkin, Docket No. 24-781, on December 2, 2025, concerning the administrative subpoena sent by the New Jersey Attorney General Matthew Platkin to First Choice Women’s Resource Centers, a pro-life crisis pregnancy organization in November 2023.

• First Choice challenged the subpoena in federal court alleging it violated the First Amendment’s right to freedom of association, and the United States District Court for the District of New Jersey and the Third Circuit Court of Appeals both dismissed the challenge for lack of Article III standing on ripeness grounds. The Supreme Court granted certiorari to address First Choice’s pre-enforcement standing.

• At oral argument, the Justices’ focused (1) on whether the subpoena was “self-executing,” (2) on the nature of First Choice’s alleged injuries flowing from the subpoena, and (3) on potentially precluding any federal court review. The majority of the Justices appeared inclined to side with First Choice and reverse the Third Circuit. 

• The outcome of this case could have significant implications for the balance between state investigatory authority and constitutional rights/limitations. A broad ruling for First Choice may open a new and widely available door to challenge state administrative subpoenas in federal court at the earliest phases of investigations, prior to the initiation of enforcement actions.

Background 

In the three and a half years since the Court overturned Roe v. Wade, states have divided sharply over reproductive health laws and policies. Within the context of the increased attention on reproductive medicine, Republican leaning states have increased their scrutiny of abortion providers while Democratic leaning states have taken a closer look at crisis pregnancy centers and other anti-abortion organizations. 

Here, the New Jersey Attorney General sought to investigate a crisis pregnancy organization, First Choice Women’s Resource Centers (First Choice), for potential violations of the Consumer Fraud Act (CFA), the Charitable Registration and Investigation Act (CRIA), and the Professions and Occupations Act because it maintained two external websites for donors and patients that contained some potentially misleading language. 

A State Attorney General’s issuance of an administrative subpoena or similar investigative demand is quite common. An administrative subpoena empowers the State AG to compel private entities to produce extensive information without the need for formal court proceedings. These subpoenas are investigatory in nature and precede any enforcement action, but they can be burdensome to respond to, subjecting investigative parties to significant costs before the State AG even determines whether to assert a claim.

Contending that it was being targeted by the state for its views, First Choice challenged the subpoena in federal court on First Amendment association grounds before a state court could order compliance with the subpoena. Thus, First Choice sought injunctive relief in federal court to prevent enforcement of the NJ AG’s subpoena. The district court’s inquiry turned on whether the subpoena was “self-executing,” or whether it would require some collateral action to have legal force. The court found this aspect of the NJ subpoena fatal to First Choice’s claim, because it defeated the requirement of an imminent injury in order to sufficiently plead Article III standing necessary to bring suit in federal court. This subpoena was not “self-executing,” according to the district court, because “state statutes require that if the State wants to enforce a subpoena against a non-compliant subpoena recipient, it must file an enforcement action in state court seeking a judgment of contempt against the recipient.” First Choice Women's Res. Ctrs., Inc. v. Platkin, 2024 D.N.J. LEXIS 6993, *5 (January 12, 2024). Accordingly, the district court held “that a dispute regarding the enforceability of the State's non-self-executing state-administrative subpoena is not ripe for adjudication by a federal court.” Id.  
In a brief four-paragraph per curiam opinion, the Third Circuit affirmed the district court. 

In June, the Supreme Court granted cert and agreed to hear the case to decide whether First Choice had standing to challenge the NJ AG’s subpoena prior to enforcement.
 

Oral Argument:

Oral Argument was divided three ways between the petitioner First Choice, the Solicitor General (in support of the petitioner), and the respondent NJ Attorney General’s office.

First Choice’s Argument

The Justices asked counsel for First Choice several questions relating to the injury component of Article III standing. For instance, Justice Thomas pressed the petitioner to answer what burdens the subpoena placed on First Choice. Chief Justice Roberts also asked the petitioners if a subpoena that had no legal force until enforced by a state court met the imminence requirement for standing, to which petitioner replied by noting the burdens of litigation and the possibility of disclosure. The Chief Justice’s question was a reference to the dispute regarding whether the NJ AG’s subpoena was self-executing. If not self-executing, as the state contends and the Third Circuit found, then there’s no possibility of immediate penalties for non-compliance because the state court is the only body empowered to enforce the subpoena.

Justice Sotomayor and Justice Jackson asked the most difficult questions of First Choice. Justice Jackson pointed out that the petitioner’s argument for standing was undermined by its merits arguments, stating that “if you're right that the subpoena is wrong, is unlawful, then I guess we would suspect or expect that the state court would agree with you, and so there really isn't a credible threat that it's going to be enforced.” Justice Sotomayor inquired how the litigation costs could constitute the particularized harm, as litigation will ensue “no matter what” and “[t]he issue is which forum, in state or federal [court].”

To Justice Sotomayor, the petitioner replied that there are “four possible imminent injuries,” including “the burdens of litigation,” a possible “disclosure order,” a potentially “adverse order on penalties,” and “the chilling injury.” Justice Gorsuch spoke up in support of the petitioner, noting that “you don’t really need to depend upon litigation costs” when “[y]ou’ve got the three other buckets,” suggesting he may be wary of the broader implications for recognizing litigation costs as a cognizable injury.

Solicitor General’s Argument

The Justices asked Assistant to the Solicitor General Vivek Suri whether the United States supported finding standing to petitioner on two different theories for chilling First Amendment speech: the “credible threat” and the “objective chill” theories. The former theory is grounded in the imminent harm that may ensue for parties facing the threat of state action that will undermine their constitutional rights. The latter theory concerns whether parties have standing to sue for state actions that are designed to inhibit the expression of constitutional, particularly First Amendment, rights even if the state has not explicitly prohibited such expression. Suri clarified that the United States supported the Court granting standing under the credible threat theory because pre-enforcement review was a “well developed doctrine.” However, Suri explained, the potential chilling of constitutional rights hasn’t always sufficed for standing and would require the Court to “distinguish between an objectively reasonable chill and a subjective chill,” which could also bleed over into a merits determination of whether the right at stake is actually burdened. Essentially, the United States’ position is that a ruling based on the credible threat theory is more straightforward. 

Justice Kagan and Justice Gorsuch both questioned Suri as to how the federal government’s position in this case differentiated between state and federal subpoenas. He clarified the position that there’s no difference in terms of Article III standing, though the cause of action would arise under the APA for a federal subpoena, meaning that such a challenge could only be raised after a final agency action and not pre-enforcement. Justice Gorsuch pressed Suri on this point, and speculated as to whether this was the real reason that the United States didn’t fully support the chill theory. Insofar as it might have an effect “in federal litigation, [with] an abusive subpoena seeking to chill First Amendment rights” on equity grounds, the federal government’s position would mean “the only remedy at law is waiting 'til the end of the case—and the chill will have been manifested before then.”

New Jersey AG’s Argument

Chief Counsel to the NJ AG Sundeep Iyer faced skeptical questioning from most of the Justices. The Chief Justice repeatedly probed the practical chill of seeking “names, phone numbers, addresses, [and] place of employment” of donors and asked what the state intended to do with the information—questions that reflect concern about donor privacy burdens and skepticism of the state’s “no injury yet” framing. Similarly, Justices Kagan and Kavanaugh emphasized the “common sense” chill from a donor identity subpoena and stressed expected reactions of “an ordinary person,” pushing back on the notion that the downstream role of a court order necessarily defeats imminence.

Iyer attempted to address these concerns by noting that First Choice could not produce anyone who said that the subpoena had actually discouraged them from donating to the organization and asserted that the mere potential for harm “has never been sufficient for Article III.” Justice Jackson also struck a similar note during petitioner’s argument when she raised the Court’s recent decision to grant a stay in Noem v. Perdomo, 606 U. S. ____ (2025) where even a “credible threat” wasn’t sufficient to confer standing for “people [] fearing [] adverse interactions with ICE.”

However, most Justices did not appear sympathetic to the NJ AG’s arguments. Iyer conceded at oral argument that if the subpoena to First Choice was self-executing, then the organization would have standing to challenge it in federal court. However, the NJ AG maintained that under state law and the rulings of the Third Circuit, state administrative subpoenas are always non-self-executing. Both Justice Gorsuch and Justice Barrett noted that the office had previously taken the position that state subpoenas were self-executing in prior cases, including the recently decided Smith & Wesson Brands, Inc. v. AG of N.J., 105 F.4th 67 (3d. Cir. 2024). The Justices were skeptical that the state’s argument that the subpoena here was non-self-executing was anything but opportunistic. Additionally, Justice Thomas questioned the state’s basis for the investigation, noting the lack of a single complaint about First Choice to trigger the investigation, signaling sympathy for the petitioner’s argument that the organization was being targeted for its views.

Looking Ahead

This case has been closely watched by companies and organizations routinely regulated by or otherwise under the scrutiny of state AG offices. The majority of Justices appear to be sympathetic to First Choice’s claim that it has been targeted for its views in violation of the First Amendment right to association, and that it should have the opportunity to litigate that claim in federal court even prior to state enforcement.

As to how the landscape may be altered by such a ruling, access to early federal intervention could expand federal judicial oversight of state investigations, allowing federal courts to review and potentially block state administrative subpoenas and similar investigatory demands before any enforcement action is taken. The balance of power would shift away from state AGs, with federal courts playing a larger role in determining the legitimacy and scope of state investigatory demands, especially in cases involving constitutional claims. A decision is expected by mid-2026.

Members of Foley Hoag’s State Attorney General practice have deep experience counseling clients facing state enforcement actions and administrative subpoenas, across a wide range of industries. Whatever the Court’s holding in First Choice, we are prepared to assist such entities in navigating an ever-shifting enforcement landscape.