PHILADELPHIA (CN) — A Third Circuit panel appeared hesitant Tuesday toward the arguments made by an anti-abortion group’s attorney, who sought to block New Jersey’s demand for donor information in a consumer safety investigation.
The donor list of First Choice Women’s Resource Center is part of a broader inquiry by New Jersey into whether the organization misled women about the risks and efficacy of its “abortion reversal” method, which lacks solid scientific backing.
The controversial procedure offered by the nonprofit ministry, which provides resources for those facing unplanned pregnancies, involves administering the progesterone hormone to a pregnant woman who has already taken pills for an abortion.
New Jersey Attorney General Matthew Platkin issued subpoenas against First Choice last year in the investigation of whether the group violated consumer protection and false advertising laws by making misleading claims about the procedure’s safety and effectiveness.
In retaliation, the Christian pro-life group sued Platkin last December, accusing New Jersey of selectively targeting it based on its religious speech and pro-life views, questioning its need for a donor list. It appealed its case to the Third Circuit after a New Jersey federal court ruled against it earlier this year.
Attorney Lincoln Wilson, who spoke for First Choice at the Third Circuit on Tuesday, said that complying with the subpoena for donors’ names would discourage future donors from contributing.
“The impact on First Choice would be likely to have a significant effect,” said the Alliance Defending Freedom lawyer. “Many donors desire to remain confidential.”
New Jersey Solicitor General Jeremy Feigenbaum clarified to the court that the donor list is part of the investigation and would not be made public but would only be reviewed by the state.
“None of these donors’ names are going to be disclosed,” Feigenbaum said.
Still, Wilson argued that such an action would damage First Choice’s relationships with its donors.
“I believe it would be a betrayal of their confidence,” he said, expressing concern that the group would face imminent harm if it did not comply with the subpoena.
U.S. Circuit Judge Stephanos Bibas pressed Wilson on his claim of imminent harm.
“It hasn’t happened yet, but it’s imminent. What is there here that shows that?” the Trump appointee asked.
Wilson inferred that New Jersey could potentially dissolve the organization through sanctions if it didn’t comply with the order.
“Don’t we have to wait until there is a realistic threat rather than a potential threat?” U.S. Circuit Judge Jane Roth posed to Wilson.
The George H.W. Bush appointee also questioned the First Choice attorney on why the parties hadn’t discussed which documents should be produced in the case.
“Get this litigation narrowed down to exactly what the problem is,” Roth encouraged.
“We’re willing to do it,” Wilson said. “The problem is that in the state court proceedings, we are forced to do that with our backs against the wall, against an order that we’ve had no opportunity to challenge the constitutionality of the subpoena as a whole.”
Still, Roth expressed hesitancy to comply with Wilson’s request at this stage.
“If the parties can resolve a dispute like this, it saves the court time, it saves the parties time,” she said. “I am concerned that it hasn’t been done.”
U.S. Circuit Judge Cindy Chung, a Biden appointee, rounded out the panel Tuesday.