Amicus Curiae Brief — First Choice Women's Resource Centers, Inc., Petitioner v. Jennifer Davenport, Attorney General of New Jersey

No. 24-781

In the Supreme Court of the United States

___________________________

FIRST CHOICE WOMEN’S RESOURCE CENTERS, INC.,

Petitioner,

v.

MATTHEW PLATKIN,

ATTORNEY GENERAL OF NEW JERSEY,

Respondent.

__________________________

On Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

___________________________

BRIEF OF AMICUS CURIAE FEDERATION OF STATE

MEDICAL BOARDS IN SUPPORT OF RESPONDENT

___________________________

Jack R. Bierig

Counsel of Record

Jin Yan

ArentFox Schiff LLP

233 S. Wacker Dr.

Suite 7100

Chicago, IL 60606

(312) 258-5500

jack.bierig@afslaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ...............................................................4

I.

CHALLENGES TO STATE AGENCY

SUBPOENAS, INCLUDING

CONSTITUTIONAL CHALLENGES,

MUST FIRST BE ADJUDICATED IN

STATE COURT. .........................................4

II.

A FEDERAL COURT SHOULD NOT

ADJUDICATE CONSTITUTIONAL

ISSUES ARISING FROM A STATE

AGENCY SUBPOENA UNLESS AND

UNTIL A STATE COURT HAS

ENFORCED THE SUBPOENA. ...................10

CONCLUSION ..........................................................15

i

TABLE OF AUTHORITIES

Page(s)

Cases

Amanatullah v. Colo. Bd. of Med.

Examiners,

187 F.3d 1160 (10th Cir. 1999)............................11

Americans for Prosperity Found. v.

Bonta,

594 U.S. 595 (2021) ........................................13, 14

Buckwalter v. Nevada Bd. of Med.

Examiners,

678 F.3d 737 (9th Cir. 2012)..........................10, 11

Colorado River Water Conservation

Dist. v. U.S.,

424 U.S. 800 (1976) ..........................................3, 11

Conklin v. Or. Med. Bd.,

No. 25-cv-01173-AR, 2025 WL

2588967 (D. Or. Sept. 8, 2025) ..............................7

First Choice Women’s Res. Ctrs., Inc. v.

Platkin,

No. 23-23076 (MAS) (TJB), 2024 WL

4756044 (D.N.J. Nov. 12, 2024).............................4

First Choice Women’s Res. Ctrs., Inc. v.

Platkin,

No. 24-3124, 2024 WL 5088105 (3d

Cir. Dec. 12, 2024)................................................13

ii

Knick v. Township of Scott,

588 U.S. 180 (2019) ........................................12, 13

Leonard v. Ala. State Bd. of Pharmacy,

591 F. Supp. 3d 1155 (M.D. Ala.

2022) .......................................................................5

Middlesex County Ethics Comm. v.

Garden State Bar Ass’n,

457 U.S. 423 (1982) ..............................................10

Railroad Comm’n of Tex. v. Pullman

Co.,

312 U.S. 496 (1941) ..............................................11

Rose v. Lundy,

455 U.S. 509 (1982) ................................................7

Silverman v. Berkson,

661 A.2d 1266 (N.J. 1995) .....................................4

Smith & Wesson Brands, Inc. v.

Attorney Gen. of N.J.,

105 F.4th 67 (3d Cir. 2024)...................... 12, 13, 14

Sprint Comm’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ................................................10

Stockton v. Brown,

--- F.4th ----, 2025 WL 2656631 (9th

Cir. Sept. 17, 2025) ................................................6

Stone v. Powell,

428 U.S. 465 (1976) ................................................7

iii

Tafflin v. Levitt,

493 U.S. 455 (1990) ................................................7

Wilkinson v. Wash. Med. Comm’n,

--- P.3d ----, 2025 WL 2652817

(Wash. Ct. App. Sept. 16, 2025) ..................7, 8, 12

Younger v. Harris,

401 U.S. 37 (1971) ................................ 3, 10, 11, 14

Zahl v. Harper,

282 F.3d 204 (3d Cir. 2002) ...................................5

Statutes

N.J. Rev. Stat. § 45:1-36 (2024) ..................................9

N.C. Gen. Stat. § 90-16 (2019) ....................................9

Other Authorities

Federation of State Medical Boards,

Guidelines for the Structure and

Function of a State Medical &

Osteopathic Board (Apr. 2024) ..............................5

iv

INTEREST OF AMICUS CURIAE1

Amicus Curiae Federation of State Medical

Boards (“FSMB”) is a non-profit organization whose

members are the medical boards of each state and

territory of the United States. Each member board is

a state agency responsible for regulating the practice

of medicine in the public interest.

In carrying out their statutory duty to protect

patients and the public, FSMB’s member boards issue

subpoenas to gather information in connection with

investigations and disciplinary actions. Their ability

to conduct investigations into care that may violate

state law and to regulate physician practices in the

public interest would be substantially hampered if a

subpoena recipient were allowed to allege a federal

constitutional claim that would enable it to bypass

well-established state court procedures relating to the

modification or quashing of a subpoena. Providing a

mechanism to seek immediate relief in federal court

simply upon an allegation that the issuance, not the

enforcement, of a subpoena is unconstitutional would

frustrate the ability of medical boards to obtain

information necessary to determine whether an

action that is being investigated violates state law

and applicable regulations. Moreover, allowing

Pursuant to Supreme Court Rule 37.6, counsel for Amicus

Curiae states that no counsel for a party authored this brief in

whole or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than Amicus Curiae, its members, or

its counsel made a monetary contribution to the preparation or

submission of this brief.

1

1

immediate constitutional review in federal court of a

subpoena issued by a state medical board would

create inefficiencies and expense for that board by

having the federal court adjudicate constitutional

issues while the state court resolves all other issues

raised by the subpoena.

SUMMARY OF THE ARGUMENT

The traditional procedure for challenging a

subpoena issued by a state agency is well-established

and has proven to be procedurally efficient and

protective

of

federal

constitutional

rights.

Specifically, recipients of a subpoena may work

cooperatively with the issuing agency to narrow the

scope of the subpoena and to address any

constitutional concerns. Alternatively, they may seek

relief in state court, either in connection with a

motion by the agency to enforce the subpoena or by a

motion to quash or limit the subpoena. State courts

are fully capable of adjudicating the propriety and

scope of the subpoena, including any constitutional

concerns, in one proceeding.

This Court should not upend these longestablished procedures by allowing a subpoena

recipient to preempt state court review of a subpoena

upon the assertion that the issuance of a subpoena for

information amounts to a constitutional violation.

Federal court review of a state agency subpoena prior

to enforcement of the subpoena by the state court

would hinder state boards of medicine and other state

agencies from taking prompt action to investigate

potentially harmful or illegal behavior and from

2

acting swiftly to protect the public. It would demean

state courts, which have traditionally been regarded

as co-equal guardians of federal constitutional rights.

And it would create an inefficient two-track system

for adjudicating the propriety of subpoenas issued by

state agencies, which would unnecessarily delay state

agency enforcement actions for violations of state law.

A federal court should not pass judgment on

alleged constitutional issues in a subpoena issued by

a state agency unless and until a state court has

rejected the constitutional claims and ordered the

recipient to comply with the subpoena. Until then,

abstention under Younger v. Harris, 401 U.S. 37

(1971) and/or Colorado River Water Conservation

Dist. v. U.S., 424 U.S. 800 (1976) is appropriate. Nor

does abstention preclude subsequent federal court

review of constitutional challenges to subpoenas.

Under this Court’s jurisprudence, state courts

are equally duty-bound and capable of protecting

federal constitutional rights as federal courts. To

allow a subpoena recipient to bypass initial state

court review when a constitutional issue is asserted

would undermine this bedrock principle. This Court

should affirm the judgment of the Third Circuit and

require recipients of state agency subpoenas to

litigate their constitutional and other objections in

state court before invoking the jurisdiction of the

federal courts.

3

ARGUMENT

I.

CHALLENGES TO STATE AGENCY SUBPOENAS,

INCLUDING CONSTITUTIONAL CHALLENGES,

MUST FIRST BE ADJUDICATED IN STATE COURT.

The long-accepted procedure for enforcing or

challenging a subpoena issued by a state agency such

as a state board of medicine is to seek relief in state

court. See First Choice Women’s Res. Ctrs., Inc. v.

Platkin, No. 23-23076 (MAS) (TJB), 2024 WL

4756044, at *11-13 (D.N.J. Nov. 12, 2024) (describing

the New Jersey subpoena enforcement process and

noting that Petitioner’s seeking immediate federal

court review is an “extraordinary and novel

maneuver” that breaks with tradition). There is no

sound reason to undercut that procedure by

transferring initial review of constitutional claims

arising from the issuance of state agency subpoenas

from state courts to federal courts. See Silverman v.

Berkson, 661 A.2d 1266, 1274 (N.J. 1995) (“Federal

courts enforcing administrative subpoenas are

strictly limited by their jurisdictional grants. On the

other hand, the Legislature has given our courts

plenary jurisdiction to enforce the agency’s

subpoena.”).

State agencies such as FSMB member medical

boards have a statutory obligation to protect the

public from illegal or unethical conduct. Among the

duties of state boards of medicine are the prevention

of the unlicensed practice of medicine, the

investigation of complaints regarding physician

mistreatment of patients and other misconduct, and

4

the issuance of subpoenas for documents and

testimony in connection with investigations and

disciplinary proceedings. See Federation of State

Medical Boards, Guidelines for the Structure and

Function of a State Medical & Osteopathic Board, 1213 (Apr. 2024).2 State medical board proceedings are

judicial proceedings. E.g., Zahl v. Harper, 282 F.3d

204, 209 (3d Cir. 2002); Leonard v. Ala. State Bd. of

Pharmacy, 591 F. Supp. 3d 1155, 1171 (M.D. Ala.

2022).

Allowing subpoena recipients to sidestep state

court subpoena review proceedings would delay and

divert state boards of medicine from carrying out

their mission to protect patients and public health.

Take, for example, a situation in which an individual,

who may or may not be a licensed physician, is using

what the board believes to be illegal or unproven

methods to treat a condition or disease. A medical

board would begin its investigation into the methods

in question by issuing a subpoena for relevant records

of the subpoena recipient and for studies

substantiating the efficacy of those methods, as well

as other information relevant to the matter being

investigated.

In such a case, and especially if the individual

is aware that the conduct in question likely violates

law or the standard of care, it is foreseeable that, to

2

Available at:

https://www.fsmb.org/siteassets/advocacy/policies/guidelinesfor-structure-function-of-state-medical-and-osteopathic-board2024.pdf (last visited Oct. 16, 2025).

5

obstruct the investigation, the subpoena recipient

would assert that the subpoena raises constitutional

issues. The recipient would then demand that the

constitutional issues first be adjudicated in federal

court. But a diversion of the proceeding to federal

court would delay the board’s receipt of the requested

information and thereby impede the board’s ability to

enforce state law and to prevent continued practices

that are likely to be harming patients.

Similarly, consider a situation where a medical

board has received a complaint that a physician has

abused a patient. The board would issue a subpoena

designed to obtain relevant information about the

incident in question and about whether there have

been similar incidents with other patients. Prompt

action to avoid any further abuse of patients would be

required. The physician should not be able to delay

compliance with the subpoena simply by alleging a

constitutional violation requiring federal court

adjudication.

These scenarios are not merely hypothetical. In

fact, physicians subject to disciplinary proceedings

often bring constitutional claims in federal court to

put off state disciplinary proceedings. Two very recent

federal court decisions are illustrative. See Stockton

v. Brown, --- F.4th ----, 2025 WL 2656631, at *17 (9th

Cir. Sept. 17, 2025) (affirming dismissal of

constitutional claims by physicians charged with

unprofessional conduct as well as those who have not

yet been charged for spreading misinformation

regarding COVID-19 vaccines and alternative

6

treatments); Conklin v. Or. Med. Bd., No. 25-cv01173-AR, 2025 WL 2588967, at *9-10 (D. Or. Sept. 8,

2025) (denying physician’s request, based on alleged

constitutional violations, for preliminary injunction

staying disciplinary action and reactivating his

suspended license). A ruling permitting federal courts

to adjudicate constitutional issues in the first

instance only encourages this behavior.

Federal court intervention in state subpoena

proceedings is also unnecessary because, as this

Court has long recognized, there is no basis to

presume that state courts are less duty-bound or

adept at protecting federal constitutional rights than

federal courts. See, e.g., Tafflin v. Levitt, 493 U.S.

455, 458 (1990) (“[W]e have consistently held that

state courts have inherent authority, and are thus

presumptively competent, to adjudicate claims

arising under the laws of the United States.”); Rose v.

Lundy, 455 U.S. 509, 518 (1982) (“Under our federal

system, the federal and state courts [are] equally

bound to guard and protect rights secured by the

Constitution.’”) (quoting Ex parte Royall, 117 U.S.

241, 251 (1886)); Stone v. Powell, 428 U.S. 465, 493

n.35 (1976) (“State courts, like federal courts, have a

constitutional obligation to safeguard personal

liberties and to uphold federal law.”). Allowing

subpoena recipients to bypass state courts when they

assert constitutional issues diminishes state courts

and treats them as inferior arbitrators of federal

constitutional rights.

The

Washington

appellate

7

court’s

recent

decision in Wilkinson v. Wash. Med. Comm’n, --- P.3d

----, 2025 WL 2652817 (Wash. Ct. App. Sept. 16, 2025)

exemplifies how constitutional rights are adequately

protected in state court proceedings. There, the state

medical board disciplined a physician for negligently

treating patients suffering from COVID-19 and for

publishing statements on his clinic’s blog asserting

that the pandemic is a “scam,” that testing and use of

masks is “useless,” and that COVID-19 vaccines are

“dangerous.” Id. at *2, 10-11. On appeal, the appellate

court affirmed sanctions relating to patient care but

reversed sanctions arising from the physician’s blog

posts. In its fulsome analysis of First Amendment

issues, the court vindicated the physician’s free

speech rights and explained why that speech could

not be punished, even if it contained falsehoods and

advocated for treatments not generally accepted by

the medical community. Id. at *17-24. Thus, as

Wilkinson demonstrates, federal courts need not

serve as courts of first resort for constitutional claims.

There is no benefit to diverting constitutional

issues to federal court upon the issuance, rather than

the enforcement, of a subpoena when state courts are

fully capable of adjudicating all issues raised by the

subpoena, both constitutional and non-constitutional.

Further, state court rulings on non-constitutional

issues concerning the scope of a subpoena and the

relevance of the requested information may well moot

constitutional concerns. Litigating the propriety of a

state agency subpoena in two different courts

needlessly increases costs and undermines the

parties’ ability to work out their issues without the

8

need for judicial intervention. By contrast, a state

court proceeding enables disputes concerning the

propriety of a subpoena, its scope, and any

constitutional issues to be raised and adjudicated in a

single forum. Such centralization allows for the

timely resolution of disputes and an efficient use of

judicial and party resources.

It should also be noted that Petitioner’s

position that compliance with an investigative

subpoena creates a reasonable fear that the

subpoenaed information will be disclosed to the public

is unfounded. State law generally provides strong

protection for such information. For example, New

Jersey law explicitly states that “any information

provided to the division or a board concerning the

conduct of a health care professional … shall be

treated as confidential pending final disposition of the

inquiry or investigation, except for that information

required to be shared with the Attorney General,

Department of Health and Senior Services or any

other government agency.” N.J. Rev. Stat. § 45:1-36

(2024). Additionally, if an investigation concludes

there was no violation of state law, then the

information obtained “shall remain confidential[.]” Id.

The law of other jurisdictions is equally protective.

See, e.g., N.C. Gen. Stat. § 90-16 (2019).

In short, federal court review of state agency

subpoenas prior to enforcement of those subpoenas

has three significant disadvantages. First, it hinders

state agencies from taking prompt action to protect

the public by diverting their resources to federal court

9

litigation. Second, it demeans state courts by

presuming that they are incapable of properly

adjudicating federal constitutional issues. Third, it

creates an inefficient two-track system for resolving

disputes.

II.

A FEDERAL COURT SHOULD NOT ADJUDICATE

CONSTITUTIONAL ISSUES ARISING FROM A STATE

AGENCY SUBPOENA UNLESS AND UNTIL A STATE

COURT HAS ENFORCED THE SUBPOENA.

Younger v. Harris, supra, and subsequent

precedent demand deference to state courts in civil

enforcement proceedings, including in cases in which

federal constitutional rights are asserted. See Sprint

Comm’ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013);

Middlesex County Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 435 (1982) (“So long as the

constitutional claims of respondents can be

determined in the state proceedings and so long as

there is no showing of bad faith, harassment, or some

other extraordinary circumstance that would make

abstention inappropriate, the federal courts should

abstain.”); Younger, 401 U.S. at 51 (“Moreover, the

existence of a ‘chilling effect,’ even in the area of First

Amendment rights, has never been considered a

sufficient basis, in and of itself, for prohibiting state

action.”).

Courts have relied on Younger in abstaining

from hearing challenges to state medical board

proceedings. See, e.g., Buckwalter v. Nevada Bd. of

Med. Examiners, 678 F.3d 737, 747-48 (9th Cir. 2012)

(affirming dismissal of claims arising from ex parte

10

emergency proceeding suspending physician’s

authority to prescribe medication); Amanatullah v.

Colo. Bd. of Med. Examiners, 187 F.3d 1160, 1164-65

(10th Cir. 1999) (affirming dismissal of § 1983 action

arising from administrative proceeding revoking

physician’s license to practice medicine). As these

decisions recognize, where constitutional challenges

are initially rejected, they may nonetheless be

pursued through state appellate processes.

Buckwalter, 678 F.3d at 748; Amanatullah, 187 F.3d

at 1164.

Even when Younger abstention does not apply,

Colorado River abstention counsels that federal

courts should stay their hand. A state court ruling

quashing a subpoena, narrowing its scope to moot

constitutional issues, or otherwise vindicating a

recipient’s constitutional claims would eliminate any

need for federal court intervention. See Colorado

River, 424 U.S. at 817, 819 (federal courts can abstain

from exercising jurisdiction over parallel state court

litigation where doing so would result in

“conservation

of

judicial

resources”

and

“comprehensive disposition of litigation” while

“avoiding piecemeal litigation”); see also Railroad

Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500

(1941) (“The reign of law is hardly promoted if an

unnecessary ruling of a federal court is thus

supplanted by a controlling decision of a state court.

The resources of equity are equal to an adjustment

that will avoid the waste of a tentative decision as

well as the friction of a premature constitutional

adjudication.”).

11

Contrary to what Petitioner argues, abstention

would not create a preclusion “trap.” There is no basis

to presume that a state court would rule against a

subpoena recipient on its constitutional claims. Any

insinuation that state courts are hostile to federal

constitutional rights or incapable of protecting them

is unsupported and runs counter to this Court’s

precedent. To the contrary, if the state court

ultimately rules in favor of the recipient, as the

Washington appellate court did in Wilkinson, then

there is no need to seek relief from a federal court. Or,

in circumstances where a state court narrows the

scope of the subpoena to moot constitutional issues or

parties reach the same result by agreement, federal

court intervention would be wholly unnecessary.

Consistent with principles of judicial economy, only

after a state court rejects constitutional claims and

requires enforcement of a subpoena would it be proper

for a recipient to seek relief in federal court.

Petitioner relies on Knick v. Township of Scott,

588 U.S. 180 (2019) and Smith & Wesson Brands, Inc.

v. Attorney Gen. of N.J., 105 F.4th 67 (3d Cir. 2024)

to argue that federal courts should have primacy in

addressing constitutional issues raised by state

agency subpoenas. But neither case supports

displacing state courts’ traditional role in

adjudicating the propriety of a subpoena issued by a

state agency.

Knick does not even arise in the context of

enforcing a state agency subpoena—with its long12

standing tradition of resolution by state courts rather

than federal courts. Rather, the Court in that case

overturned a state litigation requirement for

pursuing a federal takings claim under § 1983

because “[t]he Fifth Amendment right to full

compensation arises at the time of the taking[.]” Id.,

588 U.S. at 190. Knick did not dispense with the

Article III requirement that a plaintiff must suffer an

injury to access a federal forum.

Notably, the mere issuance of a state agency

subpoena does not create such an injury. Rather, as

the Third Circuit recognized, until a state court ruling

enforces the subpoena, the recipient does not suffer

any injury that would justify the assertion of federal

court jurisdiction. First Choice Women’s Res. Ctrs.,

Inc. v. Platkin, No. 24-3124, 2024 WL 5088105, at *1

(3d Cir. Dec. 12, 2024) (holding that Petitioner’s

claims had not ripened where the parties had been

ordered by the state court to negotiate and narrow the

scope of the subpoena and parties were in the process

of doing so).

For similar reasons, this Court’s decision in

Americans for Prosperity Found. v. Bonta, 594 U.S.

595 (2021), which the dissent below relied upon, does

not control the outcome here. Like Knick, Bonta did

not involve a state agency subpoena. Rather, that case

concerned an automatic donor disclosure requirement

that was not subject to the traditional procedure for

initial review in state court before any requested

information had to be disclosed.

As for Smith & Wesson, the procedural history

13

of that case demonstrates precisely why the Court

should reject a two-track system for resolving

subpoenas issued by a state agency. There, Smith &

Wesson attempted to circumvent the state court by

first filing a constitutional challenge to the New

Jersey Attorney General’s subpoena in federal court.

Id., 105 F.4th at 71. Two months later, when the

Attorney General sought to enforce the subpoena in

state court, Smith and Wesson raised “carbon-copy”

issues in opposition. Id. at 72. The state trial court

rejected those arguments and issued its judgment

first. Id. The federal district court then twice

dismissed Smith & Wesson’s federal complaint, first

under Younger, and second, after the Third Circuit

vacated the first dismissal, on claim preclusion

grounds. Id. By the time the second dismissal reached

the Third Circuit for consideration, the state

appellate court had affirmed the trial court’s decision,

which the Third Circuit held had preclusive effect. Id.

at 74-78.

As the Third Circuit recognized, Smith &

Wesson had a “full and fair opportunity to litigate its

claims in state court,” which it did. Id. at 79. Further,

the state trial and appellate courts were able to issue

decisions before the federal trial and appellate courts

could. Nonetheless, by opting to litigate identical

issues in both the state and federal courts, Smith &

Wesson consumed significant party and judicial

resources, only to reach the same result. The

duplicative trial and appellate proceedings in Smith

& Wesson should be the outlier, not the norm.

14

CONCLUSION

For the reasons set forth above, this Court

should affirm the judgment of the Third Circuit.

Respectfully submitted,

Jack R. Bierig

Counsel of Record

Jin Yan

ArentFox Schiff LLP

233 S. Wacker Dr.

Suite 7100

Chicago, IL 60606

(312) 258-5500

jack.bierig@afslaw.com

Counsel for Amicus Curiae

Federation of State Medical

Boards

15