John Bickley (3:19)

Joining us now to discuss the Supreme Court's latest decision for pro life advocates is Aaron Hawley, Alliance Defending Freedom of Counsel. Aaron, thanks for joining us.

Erin Hawley (3:28)

Thanks so much for having me. So glad to be here.

John Bickley (3:31)

So, first, you personally argued this case, so congratulations on the big win. First, top line, what do we need to know about this case going into this?

Erin Hawley (3:41)

Sure. So I think the top line is that hostile state officials cannot harass ideological opponents and send them subpoenas demanding their donor names unless they want to end up in federal court, which is a really good ruling for, for nonprofits of all varieties, but especially the pregnancy care centers in this case.

John Bickley (4:01)

Now, the ruling was unanimous, correct? I mean, this is a pretty big deal that we had agreement between the left and right on this case.

Erin Hawley (4:11)

That's exactly right. And sometimes unanimous opinions are sort of milquetoast opinions. You don't really get a lot out of them because you have to get all of the justices to agree. But one of the amazing things about this opinion is that although it is unanimous, it is also a robust defense of the First Amendment. It says in no uncertain terms that what the New Jersey attorney general did here chilled First Choice's associational rights. It made donors less likely to give it, inhibited that relationship. And that's something the attorney general can't do without a really good reason. And he certainly can't avoid federal court if he does something like this.

John Bickley (4:50)

For those who haven't tracked this case, what exactly did the New Jersey attorney general, Matthew Platkin, do in this case?

Interviewer/Host (4:58)

Sure.

Erin Hawley (4:58)

So it's sort of a parade of horribles. One of the very first things that the attorney General did when he took office was establish something that he called the Reproductive Rights Task Force. And he used this task force to go after pregnancy care centers. He issued a consumer alert against them because of all things. These pregnancy care centers don't perform abortions. No, heaven, heaven forbid. So the attorney General used that to go after them. He actually workshopped that consumer alert to Planned Parenthood and accepted their edits. Just crazy stuff.

Co-Host/Interviewer (5:32)

Incredible. All right, so Planned Parenthood, a partner in this. This, as you. You characterize it, a harassment campaign, really. And First Choice, in the end, wins the argument. What were the key legal complaints you helped argue? Why did those win the day?

Erin Hawley (5:52)

Sure. So. So this is sort of a. A naughty procedural case in that the question the Supreme Court was deciding was ultimately whether First Choice to be in federal court at all. So. So after issuing this consumer alert after harassing pregnancy care centers, the Attorney General also issued a subpoena demanding donor names, addresses, and their places of employment. So. So a really broad, invasive subpoena. And that sort of information, the court has held is protected by the First Amendment. But what Matthew Plotkin said is that, no, you don't get to get into federal court when I give you a subpoena. You have to go to state court first. And this gets. Gets really wonky. But the catch, if you go to state court first, then you'll almost certainly not be able to ever get into federal court because of something called preclusion. So even Justice Jackson, at oral argument, was really struck by this and accused the New Jersey Attorney General of making sure that First Choice couldn't get into federal court. So the narrow issue was, does this chill First Amendment rights? Do they get into federal court? And the Supreme Court was both adamant and unanimous on that point.

John Bickley (7:03)

And this made this a particularly complex case. I mean, this is a state court versus supreme court power of the authority of an attorney general versus private entities. What was. You described it as sort of naughty, complex, complicated. What was difficult about the argument?

Erin Hawley (7:26)

So I think the difficult thing was just sort of cutting through all of the procedure. But the. Once you got to sort of the precedents that the Supreme Court had already held, we think it's an easy case. So there's two things that were really important. So the Civil Rights Congress enacted something called section 1983. And section 1983 is a federal statute that allows individuals whose constitutional rights have been infringed by any state official to sue in federal court. And so the lower courts in this case, in the attorney General, were really arguing for an exception to that general rule. If your constitutional rights are violated, you get to get into federal court here. They said, that's not true. You have to go to state court first. So. So that we thought was. Was the first error, and then the second error was this real effort to circumscribe the First Amendment. The attorney general argued here that. That ordinary people wouldn't find a subpoena to be chilling. And. And that's just absurd. As the Supreme Court pointed out, the subpoena twice on its face threatens first choice with contempt. The attorney general. There were something over 20 briefs filed in five different courts in this case. The. The attorney general used every resource, every effort to go after first choices donors. There's no question they were chilled. And that's what the court found.

John Bickley (8:48)

Yeah. And I wanted to talk specifically about the donor privacy aspect of this. There's a few layers here. Harassment of pregnancy centers sort of writ large.

Co-Host/Interviewer (8:58)

We've seen this a lot from a lot of different angles. Then there's this donor privacy concern. Do you think this ruling helps really protect donor privacy in a way that's robust?

Erin Hawley (9:10)

Absolutely. The Supreme Court traces the history of donor privacy protections all the way back to the NAACP case in which Alabama demanded, in efforts contrary to integration, that the NAACP turn over their donor names and membership names in that case. So the court traces that history, and then they say, in no uncertain terms, which they haven't quite been this explicit before, but they said, where you have a donor disclosure demand that is inherently chilling, and that's a big deal, because that means if a hostile state official requests your membership lists, if it requests your donor names, then you get to challenge that in federal court for, you

Co-Host/Interviewer (9:54)

know, just sort of the average American out there. What. How does this potentially impact their life or some things that they're concerned about going forward?

Erin Hawley (10:02)

Sure. So this ruling, we think, directly impacts, really, any American that's ever wanted to donate to a cause or support an organization, perhaps one with an unpopular viewpoint. In those instances, if you're living in a state that disagrees with your view, the attorney general can. Can send that organization a subpoena, and they can demand your name. If you're a member, they can. Your contact information. In this case, the attorney general demanded not only names, phone numbers, but as well, places of employment. And he actually represented that. He wanted to call up those donors and quiz them about their donation to First Choice. You know, what could possibly be more chilling? But. But after this ruling, those donors are protected. The organizations can go into federal court.

John Bickley (10:50)

So clearly huge implications then. So where does this case go from here?

Co-Host/Interviewer (10:55)

Sure.

Erin Hawley (10:55)

So this case isn't over. The Supreme Court's question, as it says, was somewhat narrow. It was only deciding whether first choice gets to get into federal court. But there are several indications that hopefully the lower courts will pay attention to. One of those is the court's unanimous conclusion that first choices, First Amendment rights were burdened. The court clearly says that. Now for donor disclosure under the First Amendment, sometimes, if you think about, you know, the election context, sometimes disclosure is allowed by the First Amendment, but only if that disclosure meets something called exacting scrutiny. So the state has to have a really good reason to get that information here. We don't think that exists. In fact, there's a, there's a fantastic paragraph in the opinion which sort of mocks the attorney general's rationale for wanting these donor names. He says that he wants to talk to them because he's worried they might be misled and having thought they gave to a abortion center rather than a pregnancy center. But he cites the link in which they give, which has pictures of smiling babies and families, that there is no question that any first choice donor thought they were giving to anything other than a pregnancy care center.

John Bickley (12:13)

Indeed, are there any other pro life related cases on the docket now that we should have on our radar to be seen by the high court or maybe on the state level are significant? This is obviously a big win for the pro life side. Do we have any other cases we should be watching?

Erin Hawley (12:28)

Sure, sure. There are a couple. I would point your listeners to Louisiana and to the fifth Circuit. We are awaiting a decision. ADF represents Louisiana co counsel with them and are awaiting a decision from the Fifth Circuit on our request to stay the 2023 rems that the Biden administration took away, that last protection, that last remaining in person visit which provides crucial health safeguards for women. Without that visit, we don't know if they might have an ectopic pregnancy or be further along in gestation that they might have thought. Two different panels of the fifth Circuit have already found that removal to be unlawful. We're hoping that the fifth Circuit does that again soon.

Co-Host/Interviewer (13:10)

Certainly a case we should be watching. Now.

John Bickley (13:12)

Before you go, there was another big

Co-Host/Interviewer (13:14)

decision that came down this week from the Supreme Court in Louisiana that had to do with the hot topic of redrawing congressional districts. This was a 6, 3 decision. But can you tell us any more about what this means in terms of how it affects other situations like in Virginia and potentially Florida?

Erin Hawley (13:31)

Sure. So. So in the Louisiana case in particular, the question was a congressional map drawn in 2022, and the state had drawn that map in response to a federal court order, so had expressly relied on race, sort of done a racial gerrymander because the state was required to do so by a federal court order. The Supreme Court held that that violated the 14th Amendment, that you can't, in fact, expressly consider race when drawing these sort of districts. And it could have a major impact in other cases and I think is a good extension of the Supreme Court's sort of principles that we want elections as much as we want anything else to be based on neutral principles.

John Bickley (14:17)

Well, another big week for the Supreme Court, which continues to really reshape the legal landscape in major ways. Aaron, thank you so much for coming on.

Erin Hawley (14:25)

Thanks for having me. Appreciate it.

Narrator/Host (14:27)

That was Alliance Defending Freedom's Erin Hawley. And this has been a Legal Wire edition of MORNING Wire.

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