backFirst Choice SCOTUS Opinion Provides Opportunity for Early Subpoena Challenges
On April 29, 2026, the Supreme Court unanimously decided First Choice Women’s Resource Centers, Inc. v. Davenport, Attorney General of New Jersey, No. 24-781. First Choice, a religious nonprofit that provides services for pregnant women, but does not provide abortion services or referrals, received a subpoena from the New Jersey Attorney General requesting, among other items, “the names, phone numbers, addresses, and places of employment of all individuals who had made donations to First Choice by any means other than through one specific webpage.” First Choice challenged the subpoena under 42 U.S.C. §1983 and the First Amendment and sought a preliminary injunction, arguing that the subpoena discouraged donors from associating with the nonprofit by threatening their anonymity.
The District Court and Third Circuit denied the motion for a preliminary injunction, holding that absent a motion to compel production, First Choice had yet to suffer an injury giving rise to Article III standing. The Supreme Court, while not addressing the merits of the underlying litigation, overturned those decisions, holding that First Choice’s right of freedom of association had been injured under decades-old case law including NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) and Buckley v. Valeo, 424 U.S. 1, 65 (1976) such that it possessed standing and the suit could proceed.
The opinion holds when a state Attorney General issues a subpoena, even prior to attempting to enforce it, recipients can challenge it in court, especially federal court, when it raises constitutional concerns. Though not directly addressed in the opinion, the Supreme Court’s logic applies in equal measure to similar investigative demands, such as state Civil Investigative Demands (CIDs), and it may indicate an increased willingness by federal courts to review and, if necessary, curtail such demands where federal rights are threatened. The ability to seek adjudication of state CIDs in federal court provides recipients in the healthcare space with new options for how to approach the document demands they receive during investigations, either by challenging them openly in court or by using the threat of challenge to create leverage to negotiate reasonable limitations to the scope of the requests with the state Attorney General’s office. These types of proactive, defensive measures can ultimately result in a lesser scope or exposure for potential resulting state enforcement actions. The opinion is also especially timely considering increased state activity directed towards healthcare providers related to disputes involving transgender care, abortion, and Medicaid fraud.
A copy of the opinion can be found here.
Reporter, Hamilton Craig, Washington, D.C., +1 202 626 8976, hcraig@kslaw.com
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