Supreme Court’s First Choice Decision May Expand Federal Court Options to Recipients of State Attorney General CIDs

On April 29, 2026, the U.S. Supreme Court issued its decision in First Choice Women’s Resource Centers, Inc. v. Davenport.[1] In a unanimous opinion authored by Justice Gorsuch, the Court held that First Choice, a religious nonprofit, could proceed in federal court on its Section 1983 claim against the New Jersey Attorney General arising from a Civil Investigative Demand (CID) seeking, among other things, confidential donor information.  The Court concluded that First Choice had alleged a sufficiently cognizable injury stemming from receipt of the CID to satisfy Article III standing requirements.

Prior to oral argument, the attorneys general of Massachusetts, Washington, 18 other states, and the District of Columbia filed an amicus brief expressing concern that First Choice had challenged the New Jersey CID in federal court under Section 1983, rather than through the state court procedures set forth New Jersey’s CID statute. Those state attorneys general warned that permitting immediate federal challenges to CIDs could undermine a core state enforcement tool.

The Court, however, brushed aside those concerns, emphasizing the narrow question presented by First Choice’s alleged Section 1983 claim based on an asserted First Amendment injury. Still, the Court’s reasoning leaves open the possibility that other cognizable constitutional harms arising from state attorney general CIDs could likewise provide recipients with a path to federal court review.

Background

First Choice, a faith-based nonprofit, provides pregnancy-related counseling and resources in New Jersey. It neither performs abortions nor refers individuals to abortion providers. After New Jersey’s Attorney General established a Reproductive Rights “Strike Force” and issued a consumer alert criticizing organizations like First Choice, the Attorney General served First Choice with a CID pursuant to the state’s consumer protection law.

The CID sought 28 categories of documents. Among other things, it required First Choice to identify donors who had contributed through channels other than a specified webpage, including by producing names, addresses, phone numbers, and places of employment. The CID also warned that failure to comply could result in contempt proceedings and other penalties.

First Choice responded by filing suit against the New Jersey Attorney General in federal district court under 42 U.S.C. § 1983, alleging the Attorney General, acting under color of state law, had violated the organization’s First Amendment rights by issuing the CID. Specifically, First Choice argued that protecting donor anonymity was central to its associational freedoms under the First Amendment. The Attorney General subsequently filed a state court enforcement action alleging that First Choice had failed to comply with the subpoena.

The federal district court dismissed First Choice’s complaint for lack of Article III standing.  The court reasoned that because the CID was not self-executing and required judicial enforcement, First Choice had not yet suffered a sufficiently concrete injury absent a state court order compelling compliance.  The U.S. Court of Appeals for the Third Circuit affirmed, effectively requiring First Choice to litigate its constitutional objections in state court. The Supreme Court, however, granted certiorari and reversed.

The Attorney Generals’ Concerns and the Court’s Response

The state attorneys general amici emphasized four principal arguments in support of limiting federal court challenges to state CIDs.  The Court rejected each, at least in the circumstances presented by First Choice’s First Amendment claim.

First, the amici emphasized that state CIDs are long-standing and routine investigative tools used in consumer protection, antitrust, data privacy, environmental, charitable, and other investigations.[2] In their view, receipt of a non-self-executing CID should not itself constitute an Article III injury because no concrete consequence arises unless and until a state court orders compliance. The Court disagreed, at least as applied to the CID served on First Choice. It held that the subpoena’s demand for sensitive private donor information, coupled with its mandatory language and warnings regarding contempt and other penalties, plausibly alleged a present First Amendment associational injury even before any state court enforcement proceeding.

Second, the amici argued that allowing immediate federal litigation would disrupt the ordinary CID process.[3] Typically, CID recipients negotiate with the issuing office, seek to narrow requests, raise burden and relevance objections, and, if necessary, move to quash or oppose enforcement in state court. According to the amici, permitting recipients to proceed directly to federal court would undermine those established procedures. The Court, however, framed the issue principally through the lens of Section 1983 rather than the conventional mechanics of CID practice. As the Court explained, Section 1983—a creature of the Civil Rights statutes passed in the wake of the Civil War—was designed to provide a federal forum for constitutional claims against state officials. The Court rejected any rule effectively requiring putative plaintiffs to exhaust state court remedies before bringing a Section 1983 action, observing that such a requirement could create a preclusion trap if the recipient first litigated and lost in state court before ever reaching federal court.

Third, the amici contended that confidentiality protections governing investigative materials eliminated any cognizable injury to First Choice.[4] The Court disagreed.  It reasoned that even where donor information would be disclosed only to government officials, and even where a protective order might later issue, compelled disclosure demands could still chill donor participation and burden associational rights under the First Amendment.

Fourth, the amici argued that state courts are fully capable to adjudicate federal constitutional objections to CIDs and routinely do so, including in First Amendment cases.[5] The Court did not dispute that proposition. Instead it emphasized that state court competence does not negate Article III standing or displace Section 1983’s guarantee of a federal forum where a plaintiff plausibly alleges a constitutional violation by a state official.

Practical Implications

The Court’s holding in First Choice is narrow. It rests on the intersection of two considerations:  the plaintiff’s chosen cause of action (42 U.S.C. § 1983) and the nature of the alleged injury, namely a First Amendment associational injury.  As the Court emphasized, Section 1983 was specifically designed to provide individuals allegedly harmed by state officials acting under color of state law with immediate access to a federal forum.  At the same time, the Court has long recognized that First Amendment injuries may arise where government action would reasonably chill speech or association, even before formal enforcement occurs.

For individuals or entities on the receiving end of a state attorney general CID seeking donor or other information implicating core First Amendment rights, First Choice provides a roadmap to a potentially more receptive federal forum.  As a result, recipients should carefully evaluate whether a CID seeking donor lists, member identities, affiliate information, coalition records, advocacy contacts, event attendance information, or other materials tied to expressive association may support a federal constitutional challenge. The same reasoning may extend to CIDs directed at trade associations that seek member identities, internal advocacy strategies, petitioning-related communications, or other materials potentially implicating associational freedoms.

At the same time, the decision leaves significant questions unresolved. To the extent state attorney general CIDs implicate other constitutional rights, First Choice may offer a possible avenue for federal court review, but the decision does not guarantee one. The Court repeatedly emphasized both the unique role of Section 1983 and the requirement that a plaintiff plead a presently cognizable injury sufficient to satisfy Article III.  Thus, even where a CID recipient can identify a plausible constitutional theory, First Choice may provide only limited assistance absent a concrete and immediate harm analogous to the First Amendment associational injury alleged there.

[1] First Choice Women’s Resource Centers, Inc. v. Davenport, No. 24-781, 608 U. S. ___, 2026 WL 1153029 (2026).

[2] Brief for the Commonwealth of Massachusetts, the State of Washington, and 18 Others as Amici Curiae in Support of Respondent, First Choice Women’s Resource Centers, Inc. v. Davenport, 2025 WL 2994061 at *6–13 (Oct. 21, 2025).

[3] Brief for the Commonwealth of Massachusetts, the State of Washington, and 18 Others as Amici Curiae in Support of Respondent, First Choice Women’s Resource Centers, Inc. v. Davenport, 2025 WL 2994061 at *14 (Oct. 21, 2025).

[4] Id. at *16.

[5] Id. at *24.

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